Citation Nr: 20040102 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 15-10 506A DATE: June 11, 2020 ORDER A total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s two service-connected disabilities, which combined have only a 60 percent rating, have not been so severe as to render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision. In December 2017, the Veteran testified before the undersigned at a videoconference hearing. The Board remanded this matter, which at the time included three issues, for additional development in July 2018. An April 2020 rating decision reached favorable determinations for two of these issues, leaving the remaining issue to be adjudicated herein. TDIU A TDIU is appropriate if a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability or disabilities rated less than 100 percent. 38 C.F.R. § 4.16(a). It may be granted on a schedular basis when there is one such disability rated at 60 percent or more or when there are two or more such disabilities with a combined rating of 70 percent or more and one is rated individually at 40 percent or more. Id. If neither percentage threshold is met, it may be granted on an extraschedular basis provided referral first is made to the Director of the Compensation Service. 38 C.F.R. § 4.16(b). In making a TDIU determination, a veteran’s education, training, and previous work experience are for consideration but his age and the effect of his nonservice-connected disabilities are not. 38 C.F.R. §§ 3.341(a), 4.16(b), 4.19; Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). When the evidence is in approximate balance, the claimant is afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The applicable standard thus is at least as likely as not. The Veteran is service-connected for two disabilities, major depressive disorder (claimed as depression and posttraumatic stress disorder (PTSD)) with a 50 percent rating and lumbosacral strain with a 10 percent rating. Combined, they have a rounded rating of 60 percent. 38 C.F.R. § 4.25. The required 40 percent threshold is met by the Veteran’s major depressive disorder. However, the required combined 70 percent threshold is not met. Sometimes service-connected disabilities count as one for purposes of meeting the 60 percent individual threshold instead of the 40 percent individual and 70 percent combined thresholds. Yet this is not true here, as the Veteran’s major depressive disorder and lumbosacral strain do not involve his extremities or affect a single body system, did not result from a common etiology, and were not incurred in action or as a prisoner of war. 38 C.F.R. § 4.16(a). Since neither the 40 and 70 percent thresholds nor the 60 percent threshold have been met, a TDIU can be granted only on an extraschedular basis following referral to the Director of the Compensation Service. The Board finds that referral is not warranted. The Veteran’s service-connected disabilities indeed have not been so severe as to render him unable to secure or follow a substantially gainful occupation. His reports concerning his educational background have been inconsistent. On one occasion, he indicated going only so far as to graduate from high school. Yet on other occasions, he indicated going to college for a few years or even completing college and obtaining a bachelor’s degree. With respect to work history, the Veteran’s reports also have been inconsistent. It is clear that he was a full-time supervisor for approximately two decades, working for one company handling materials and for two more cleaning trucks, and thereafter a full-time industrial sheet metal worker for approximately two years. It further is clear that the Veteran’s last position was a driver or helper for a church ministry organization. He has indicated that this job was full-time, but he also has indicated that it was part-time. No information was provided by him regarding his earnings. As such, the Board is unable to determine whether or not his position qualified as marginal employment. 38 C.F.R. § 4.16(a); Faust v. West, 13 Vet. App. 342, 356 (2000) (marginal employment, which is not substantially gainful, exists when annual income does not exceed the low poverty threshold for one person as set by the U.S. Department of Commerce). The Veteran variously has indicated that it ended in 2004, in 2005 or 2006, and in September 2007. He finally has indicated leaving it due to his service-connected disabilities, specifically his major depressive disorder. Anger and getting along with others were highlighted in this regard. However, he also has indicated leaving because of the church’s inability to continue paying him. Notwithstanding the inconsistencies, the aforementioned confirms that the Veteran has not been employed at any time since he filed the instant claim in November 2011. He contends that his service-connected disabilities, especially major depressive disorder, are so severe that he has been unable to work during this period on appeal. In this regard, he testified that he is always on guard, never knows how he will react, has trouble sleeping, and is not motivated. He also testified that his cannot pick up anything heavy or sit for long due to his back, in addition to being unable to get out of bed for a few days when his pain flares up. The Veteran notes that the Social Security Administration (SSA) deemed him too disabled to work due to depression in 2009, stating that he should not be out in public as a result of it. SSA records reveal an August 2009 decision which found him disabled beginning in September 2007, with a primary diagnosis of a back disorder and a secondary diagnosis of an anxiety-related disorder. The Board observes that these diagnoses closely parallel the Veteran’s service-connected disabilities. No other disabilities were taken into account by the SSA. As such, the decision is especially relevant here. VA law and SSA law are different, however. VA therefore is not bound by SSA decisions. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The probative value of the Veteran’s SSA decision additionally is diminished substantially because it does not correspond with the medical evidence upon which it was based for his anxiety-related disorder. In particular, it relates that he had marked difficulties in maintaining social functioning and in maintaining concentration, persistence, and pace. Yet a psychiatric review technique conveys that his difficulties in these two areas were only moderate. A February 2008 mental residual functional capacity assessment further shows that he either had no significant limitation or only a moderate limitation in mental activities related to social interaction, sustain concentration and persistence, understanding and memory, and adaptation. In sum, the Veteran’s SSA decision seemingly depicted his anxiety-related disorder as worse than it actually was. The psychiatric review technique and mental residual functional capacity assessment are accepted, however. They reflect, in addition to the above, that the Veteran had the ability to understand and remember simple instructions and could concentrate for at least two hours. He would have difficulties adapting to changes and coping with stress as well as with social interaction, however. A nondemanding social setting thus was deemed best for his functioning. Regarding his back disorder, a February 2008 physical residual functional capacity assessment showed that the Veteran would be able to sit or to stand or walk for six hours in an eight hour workday, lift or carry up to 50 pounds occasionally, and lift or carry up to 25 pounds frequently. Occasional limitations also were noted with climbing, stooping, and crouching, and frequent limitations were noted with balancing, kneeling, and crawling. The Board has not uncovered any indication that either of the Veteran’s service-connected disabilities has improved. Though dated a few years prior to the beginning of the period on appeal, the aforementioned accordingly stands as accurate depictions of the minimal severity of these disabilities. VA treatment records confirm that from the beginning of the period on appeal through early 2016 the Veteran’s psychiatric symptoms primarily included sleep impairment, mood and motivation disturbances, irritability, intrusive thoughts, flashbacks, hypervigilance, and withdrawal/isolation from others. Confusion or memory problems also were mentioned by the Veteran’s daughter, who feared he was developing early dementia like his father. Regardless, his level of impairment was characterized as mild to moderate. Around February 2016, he was privately diagnosed with Parkinson’s disease. His neurocognitive functioning was significantly impaired upon VA assessment in December 2016, attributable to this new diagnosis as well as his diagnosed psychiatric disorder(s). Tasks requiring cognitive flexibility and speed of processing were particularly difficult. Thereafter, VA treatment records reference concentration issues, forgetfulness, psychomotor retardation/sluggishness, slowed thought processes, and some hallucinations observed by the Veteran’s daughter. He also seemed to struggle with mental control and organization in July 2019. At a June 2019 VA medical examination, his memory problems were confirmed. No new symptoms were detected, however. He occasionally zoned out and needed a question repeated, but his thought processes were linear and logical. No abnormal though content, including hallucinations, was observed. Overall, the Veteran was determined to have occupational and social impairment with reduced reliability and productivity. VA treatment records concerning his back symptoms document only pain. Late during the period on appeal, they and a January 2018 private treatment record convey that he uses a cane. At an October 2019 VA medical examination, he was deemed unable to lift, bend and pick things up, or stand or walk for long. It is undisputed, given the agreement between the Veteran’s testimony and the medical evidence concerning his body movement, that his service-connected lumbosacral strain precludes him succeeding at physically demanding jobs. Most of his work experience was is in these types of jobs. This somewhat reduces the likelihood that he could have obtained and done acceptably in a position that was less physically demanding during the period on appeal. Yet it cannot be said that the Veteran lacks any qualifications for a less physically demanding job. He has some experience in such a job, given his last position as a driver or helper for a church ministry organization. Whatever education he completed above high school likely imparted him with some useful knowledge. That he was a supervisor, not just an entry-level employee, for decades further undoubtedly resulted in his development of valuable skills, which may include time and task management. Some less physically demanding positions therefore have been within the Veteran’s reach. The Board believes that at least some such positions would allow him to shift between sitting, standing, and walking as well as take some days off to accommodate his lumbosacral strain with flare-ups. Of these positions, the Board believes some would require little to no interaction with customers or coworkers as well as involve mainly repetitive tasks. This would accommodate the Veteran’s need for a nondemanding social setting and eliminate or substantially reduce the impact of his difficulties with adapting to changes, coping with stress, cognitive flexibility, and processing speed. These latter two difficulties are taken fully into account here, even though how much is due to his psychiatric disorder versus his Parkinson’s disease has not been differentiated. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Written reminders and task lists also would eliminate or substantially reduce the impact of the Veteran’s memory and mental organization problems. In sum, there have been at least some positions for which the Veteran is qualified that he could have performed notwithstanding his lumbosacral strain and major depressive disorder. These disabilities have not rendered him unable to find and keep a job paying enough to qualify as substantially gainful, in other words. This determination applies throughout the period on appeal. There is no reasonable doubt to resolve in the Veteran’s favor, as it was based on the preponderance of the evidence. Indeed, the SSA decision that he is unable to work due to his back and psychiatric disabilities is neither binding nor persuasive. There otherwise is no indication of his service-connected disabilities rendering him unable to work. Whatever impact his Parkinson’s disease has on his ability to work, other than as has not been differentiated from him major depressive disorder, cannot be considered. A remand for referral to the Director of the Compensation Service for consideration of a TDIU on an extraschedular basis, in conclusion, is not merited. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becker 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.