Citation Nr: 21000826 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 11-02 209 DATE: January 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran’s service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to September 1974 and October 2003 to July 2004. He had additional service in the National Guard. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2016. This appeal was most recently before the Board in August 2020 when it was remanded to obtain updated treatment records and to provide the Veteran with another opportunity to submit a VA Form 21-8940, Application for TDIU. The Board finds there has been substantial compliance with its previous remand directives and will proceed to adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to TDIU due to service-connected disabilities In June 2009, the Veteran submitted a Statement in Support of Claim that said, in its relevant part, “unable to function at this time, injuries received in military have caused me to lose my career in military and my GS-12 occupation with the government.” In June 2009, the AOJ sent the Veteran appropriate notice and a VA Form 21-8940, formal application for TDIU, with instructions to complete the form and return it. The Veteran did not return the TDIU application as requested. In August 2020, the Board remanded the issue to afford the Veteran another opportunity to submit a TDIU application. In the remand itself, the Board specifically noted that the Board cannot make an informed decision on his claim without the information provided on that form; specifically, a detailed history of his employment and educational background. The application was mailed to the Veteran in August 2020, but the Veteran again failed to return the completed application. 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (a). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. The Veteran’s service-connected disabilities are depressive disorder; sleep apnea; duodenal ulcer; residuals of post-operative appendectomy; residuals of anterior tibial neuropathy left foot; right hand strain; plantar fasciitis; erectile dysfunction, and; essential tremors. The Veteran’s combined disability rating was 70 percent from April 2009 until May 2009 and 80 percent thereafter. The schedular criteria for TDIU are met as of April 2009. 38 C.F.R. § 4.16(a). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to nonservice-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321 (b), 3.340, 3.341, 4.16(b), 4.19. The record shows the Veteran worked with Mine Safety and Health Administration. An August 2006 Disability Determination by the Social Security Administration (SSA) noted the Veteran’s vocational background as Federal Mine Inspector for 13 years and he had completed 3 years of college. SSA cited the primary diagnosis as a back disability; affective disorder as the secondary. The determination was that the Veteran was not disabled. Medical records reviewed by SSA detail the Veteran’s reports of work-related injuries to his right knee in 1994 and his back in 2002. The right knee injury was addressed via Workers Compensation. A July 2005 Mine Safety and Health Administration letter advised the Veteran of a proposed removal from his job because he no longer meets physical standards of duty as a mine inspector due to back and right shoulder disabilities. A December 2005 psychiatric review for SSA characterized the Veteran’s “impairments not severe” and notes mild limitation of activities to daily living, maintaining social functioning, and maintaining concentration, persistence, and pace. However, the reviewer concluded that there is “no limitations in functioning related to a mental disorder.” Additional medical records include a January 2006 statement of attending physician states that the Veteran is now totally disabled for his occupation but did not answer the question of whether the Veteran is totally disabled from any occupation. The physician identified the Veteran’s diagnoses as CLBP, DJD, neuropathy, paresthesia, tremor, ED, OSA, and HTN. A January 2009 statement from attending physician, Dr. W.C., M.D. provides diagnoses of COPD, neuropathy, and tremors and states that the Veteran is “totally disabled.” In May 2009, the Veteran underwent a VA examination for the stomach, duodenum, and peritoneal adhesions. The examiner noted that the cause of the Veteran’s retirement was knees, back, and neck pain. The examiner noted the Veteran’s duodenal ulcer causes mild impairment of his completion of chores because he gets reflux if he bends over. In August 2010, the Veteran was provided a VA foot examination. The examiner noted that the Veteran cannot stand for more than a few minutes or walk more than a few yards. The examiner also noted the Veteran uses a cane to assist with ambulation as a result of his knees, lower back pain, and hip problems. The examiner did record some weakness in the left foot secondary to left peroneal nerve injury. No plantar fasciitis was noted in either foot. The examiner stated the reason for Veteran’s retirement was due to lower back pain, shoulder problems, hips and knees problems, and pneumoconiosis. The examiner concluded that the Veteran’s foot condition “has no impact on physical or sedentary employment.” The Veteran was also provided with a VA hand examination in August 2010. The examiner described some stiffness in the right hand. Range of motion was indicated normal. The examiner concluded that the Veteran’s hand condition “has no impact on physical or sedentary employment.” A July 2010 private mental status examination characterized the Veteran as “significantly impaired.” The evaluator specifically noted that there were no records reviewed and the findings were based on an examination and interview with the Veteran. In August 2010, the Veteran underwent a mental assessment of ability to do work-related activities. The Veteran was found to have moderate difficulty following work rules, using judgment, interacting with supervisors, dealing with work stresses, ability to complete a normal workday and work week without interruptions from psychologically based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods. The Veteran was found to have marked difficulty related to co-workers, dealing with the public, behaving in an emotionally stable manner and relating predictably in social situations. He Veteran was found to have slight impairment with functioning independently and maintaining personal appearance. Also in August 2010, the Veteran underwent a VA peripheral nerve examination which diagnosed left anterior tibial -pressure neuropathy that causes partial paralysis. The examiner recorded decreased mobility and problems with lifting and carrying. Worsening of the left foot drop was noted since the November 2007 examination. The examiner concluded that the Veteran’s condition impacts ability to do physical labor but does not impact sedentary employment. In June 2015, the Veteran was provided with a VA hand examination. The examiner concluded that the Veteran’s hand condition has no impact on his ability to perform any type of occupational task. At the July 2016 Board hearing, the Veteran testified that he has not worked since 2005 due to knee, back, feet, shoulder, and psychiatric disabilities. The Veteran also testified he worked as a federal mine inspector until 2005 when he began receiving social security disability benefits and served in the National Guard until 2004 when he was discharged due to physical and mental conditions. The Veteran underwent a private psychological evaluation in August 2016 by Dr. T.G., Ph.D. The evaluator noted that there were not treatment records available for review. The Veteran reported frequently feeling overwhelmed by his medical problems and suffering frequent panic attacks and depression. The Veteran also reported anhedonia, weight gain, chronic sleep impairment, poor concentration, difficulty controlling his emotions, and forgetfulness. The Veteran reported thinking about suicide “every once in a while.” The examiner noted moderate impairment in the Veteran’s ability to work a normal day and work week without interruption from psychological symptoms. In March 2017, the Veteran was provided a VA sleep apnea examination. The examiner concluded the Veteran’s sleep apnea does not impact his ability to work and “there is no impact from his sleep apnea on his ability to function in an occupational environment.” In May 2017, a VA examiner opined that the Veteran experiences mild impairment of understanding and memory and concentration and persistence and mild to moderate impairment of social interaction. The examiner also stated the Veteran likely experiences mild and episodic impairment of maintaining a routine work schedule and regular attendance due to sleep disturbance and mild to moderate impairment of ability to respond to changes in the workplace. In December 2019, the Veteran was provided a VA central nervous system and neuromuscular diseases examination. The examiner noted an essential tremor resulting in insomnia and erectile dysfunction. The examiner determined that the Veteran’s essential tremor did not impact his ability to work. Also in December 2019, the Veteran was provided a VA mental disorders examination. The examiner confirmed the Veteran’s diagnoses of depressive disorder and anxiety disorder and characterized the related occupational and social impairment as impairment with reduced reliability and productivity. The examiner noted symptoms including depressed mood, anxiety, suspiciousness, panic attacks that occur more than once a week, chronic sleep impairment, and disturbance of motivation and mood. The Veteran also reported continuing mental health treatment from Dr. A. Subsequent to the Board’s August 2020 remand, the AOJ asked the Veteran to complete an authorization to release medical information for Dr. A, but the Veteran did not return the requested authorization. The ultimate question of whether the Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). While the Veteran and his representative identified that the Veteran has been unable to work since 2005, the Board must determine whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. The Board finds the preponderance of the evidence is against the claim that the Veteran is unemployable as a result of service-connected disabilities. Despite several requests, the Veteran has not submitted a completed VA Form 21-8940 and did not respond to the August 2020 VA request for authorization to obtain mental health treatment records from Dr. A. Based on the record, the Veteran completed obtained an associate degree in mining technology, and received training as a truck driver. The Veteran has also worked a variety of jobs with his most recent employment history being an extended period of time in the mining industry. Records related to his employment with the Mine Health and Safety Administration show he was medical retired in 2005 as a result of back and shoulder disabilities; neither of which is service connected. The Veteran testified at the Board hearing that he cannot return to his previous employment due to knee, back, shoulder, and psychiatric disabilities. The knee, back, and shoulder disabilities are not service-connected and are not considered for the purposes of TDIU. The Veteran’s service-connected sleep apnea, hand strain, plantar fasciitis, erectile dysfunction, essential tremor do not cause any impairment of employment. The Veteran’s duodenal ulcer has been determined to cause mild impairment of chores in that bending over causes reflux. The Veteran’s foot condition has been determined to cause impairment of physical employment but not sedentary employment. The Board finds that none of these conditions individually or taken in combination precludes the Veteran from securing or following substantial employment. The impact of the Veteran’s service-connected psychiatric disability has been variously characterized by private and VA evaluators. Private evaluators have characterized the impairment as more severe than VA, but none of the opinions are based on a review of pertinent treatment records and are afforded little probative value. A May 2017 VA examiner determined the Veteran experiences mild impairment of understanding, memory, concentration, and pace as well as mild to moderate impairment of social interaction. The VA examiner also concluded that the Veteran likely experiences mild and episodic impairment of maintaining a routine work schedule and regular attendance due to sleep disturbance and mild to moderate impairment of ability to respond to changes in the workplace. Most recently, in December 2019, a VA examiner characterized the Veteran’s occupational and social impairment as impairment with reduced reliability and productivity due to depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, and disturbance of mood and motivation. The Board finds the May 2017 and December 2019 VA examinations to be the most probative evidence of record regarding the severity and impact of the Veteran’s psychiatric disability as those examiners had access to and reviewed the Veteran’s VA treatment records prior to offering an opinion on the impact of the Veteran’s conditions. There is no indication that any of the private opinion providers reviewed the Veteran’s mental health treatment records prior to offering their respective opinions. Both VA examinations show mild to moderate functional impairment. (Continued on the next page)   While the record demonstrates that the Veteran experiences impairment of physical labor due to his service-connected foot condition and duodenal ulcer and impairment in all employment due to his service-connected psychiatric conditions, such impairment is recognized by the ratings assigned. Accordingly, the Board finds that the Veteran’s service-connected disabilities, consistent with his educational background and occupational experience, do not preclude all forms of substantially gainful employment. Entitlement to TDIU is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, 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.