Citation Nr: 20037528 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 14-08 971 DATE: June 2, 2020 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to November 1968. He testified at an October 2015 Board hearing before the undersigned Veterans Law Judge (VLJ). A complete transcript of the hearing is of record. VA received the Veteran’s claim for a TDIU on October 18, 2011. A December 2011 rating decision denied the Veteran’s claim for a TDIU. The Veteran timely disagreed. A May 2016 Board decision remanded the TDIU claim to allow for further development of his service connection claim for ischemic heart disease, to update the Veteran’s claims file with updated VA treatment records, and to obtain a new VA examination to determine the current severity of his posttraumatic stress disorder (PTSD). The Board notes that the Veteran’s heart condition was fully developed, and he was assigned a 30 percent rating, updated VA treatment records have been added to the claims file, and the Veteran was afforded a VA examination for PTSD in July 2018. The Board finds there has been substantial compliance as to all of the remand directives of the May 2016 Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A TDIU is denied. The Veteran asserts that he is entitled to a TDIU. Specifically, he asserts that he has not worked since 2004 because he could no longer take the stress of his job. He testified that he has concentration problems due to flashbacks, problems dealing with people, problems with his service-connected right arm, and problems with his heart. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). Here, the Veteran has more than two service-connected disabilities. His PTSD is rated at 50 percent, and he has a combined rating of 80 percent. As such, he meets the schedular criteria for a TDIU. Id. Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. A review of the competent evidence of record, which includes the Veteran’s VA treatment records, Vet Center records, private treatment records, and VA examination reports; when taken in total, does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. At his May 2011 VA examination for PTSD, the Veteran reported that he thinks about his distressing military experiences on a daily basis, sometimes almost all day. He reported nightmares related to his military experience about 2-3 times per week. He stated that his intrusive memories cause him concentration problems, which caused him to get into a motor vehicle accident. The examiner reported that the Veteran’s symptoms affected his social relationships, but were not severe enough to preclude all types of employment. The Veteran was also afforded a VA examination for his heart condition in May 2017. The examiner reported that the Veteran showed nonobstructive mild coronary artery disease. The examiner opined that the Veteran’s heart condition did not impact his ability to work. The Veteran was afforded a VA examination in November 2011 for his service-connected right arm disability. The examiner noted that the Veteran’s peripheral nerve condition impacted his ability to work. The examiner noted the Veteran’s neuroma mass on his right ulnar nerve, which was prone to inadvertent trauma. The examiner stated that the Veteran could perform sedentary work if his arm was protected from bumps and taps. The examiner also noted the Veteran’s weaker grip strength would prevent physical labor with his dominant side. A careful review of the Veteran’s VA treatment records and Vet Center records during the period on appeal does show frequent complaints of intrusive thoughts, flashbacks, and nightmares. He also frequently complained of concentration problems and sleep problems due to intrusive thoughts and nightmares. However, there were no other findings that would suggest the inability to obtain or maintain substantially gainful employment as a result of his PTSD. The Veteran reported having positive social relationships. He stated that he was looking forward to hunting season because he liked spending time with his close friends and family at his cabin in the woods. See Vet Center Records dated September 5, 2012. The Veteran was afforded a VA examination for his PTSD in July 2018. The Veteran reported enjoying playing golf, going to his cabin retreat, and attending church. He also reported having friends and participating in his grandchildren’s lives. He reported daily intrusive thoughts and nightmares of his military trauma. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency. The examiner noted the following symptoms: hypervigilance, exaggerated startle response, problems with concentration, sleep disturbances, depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The examiner reported that the Veteran had problems interacting with others in large groups and had difficulty with daily intrusive thoughts that impact concentration. He opined that the Veteran may be best suited for independent rote-type work tasks, or within a small group. The Veteran was afforded a VA examination in December 2018 for his heart condition. The examiner noted the Veteran’s diagnosis of coronary artery disease. The examiner noted that the functional impact of the Veteran’s heart condition was a limitation on strenuous activities. However, the Veteran was noted to be able to walk more than a mile, lift 50 pounds, hut, mow his own yard, and climb 2-3 flights of stairs. A careful review of the Veteran’s VA and private treatment records does show treatment for his heart condition. The Veteran had experienced one episode of syncope in October 2015. See Private Treatment Record dated October 3, 2015. However, there were no other findings that would suggest the inability to obtain or maintain substantially gainful employment as a result of his heart condition. Here, there is no dispute that the Veteran’s service-connected disabilities cause impairment. However, the weight of the evidence is against the conclusion that the Veteran is unable to obtain or maintain substantially gainful employment as a result of them. His PTSD has caused decreased concentration and chronic sleep impairment. However, both VA examiners found that he was not precluded from all types of employment. The July 2018 VA examiner found that the Veteran would be able to perform rote-type work, independently or in small groups. His right arm disability also causes impairment in the form of weakened grip in his right hand and forearm. He testified that he sometimes had a problem holding things in his right hand, and would sometimes lose feeling in his hand. The November 2011 VA examiner found that the Veteran’s weakened grip would prevent physical labor, but he would be able to perform other types of work. His heart condition also causes impairment, but the December 2018 VA examiner found that his only limitation was on strenuous activities. The Veteran also testified that his service-connected tinnitus also causes him problems with understanding hearing and that some days are worse than others. Although the Veteran’s service-connected disabilities have caused him some impairment, the evidence of record does not support the conclusion that the Veteran’s service-connected physical disabilities render him unable to obtain or maintain substantially gainful employment. The Veteran credibly testified that he retired in 2004 because he could no longer take the stress of the job. However, at that time, he had worked in the position for more than 30 years. He also credibly testified as to how his service-connected PTSD, right arm disability, and heart condition causes him impairment. The Veteran’s psychiatric disability does impact his ability to be around large groups of people and problems with concentration. However, the weight of the evidence shows that the Veteran would be able to perform rote-type work in either an individual or small group setting. The Veteran’s physical disabilities causes him to have a weakened grip, a limitation on strenuous activities, and occasionally having difficulty hearing due to tinnitus. The VA examiners for his right arm opined that he could perform sedentary work and the VA examiner for his heart condition found that his only limitation was strenuous activities. In support of the finding that sedentary employment would be possible, it is noted that the Veteran still appears to be active with church, golf, hunting, and family. Additionally, he was noted to be capable of lifting 50 pounds, walking more than a mile, and mowing his lawn. As such, it would seem that he possesses the physical capacity for employment. Here, the medical professionals of record have found that the Veteran would be able to perform some level of work, even considering his disabilities. His psychiatric disabilities would limit his work to rote-type work in a small group setting and his right arm disability and heart condition would limit him to sedentary work. As such, the Board finds that the Veteran has not shown that he is unable to obtain or maintain substantially gainful employment. The Board notes that the Veteran has not offered any medical opinions that would undermine the evidence of record. Accordingly, a TDIU is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.