Citation Nr: 21001661 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-00 608A DATE: January 11, 2021 ORDER A total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDINGS OF FACT 1. The Veteran had active duty from June 1966 to June 1969, to include service in Vietnam. 2. The Veteran’s service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1110, 1131, 1521, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Regional Office (RO) substantially complied with the remand instructions of the May 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). Turning to the relevant laws and regulations, a TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service-connected for the following disabilities: posttraumatic stress disorder (PTSD) at 50 percent from August 17, 2010; tinnitus at 10 percent from May 31, 2011; hypertension at 0 percent from August 17, 2010 until September 1, 2016, and a 10 percent rating thereafter; and bilateral hearing loss at 0 percent from May 31, 2011. The combined rating is 50 percent from August 17, 2010 until May 31, 2011, and 60 percent thereafter. As such, at no point during the appeal period did the Veteran meet the schedular thresholds defined in 38 C.F.R. § 4.16(a). However, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for a TDIU, the case may be referred to the Director, Compensation Service (Director) for consideration of assignment of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board lacks the power to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, the case was referred to the Director who denied entitlement to an extraschedular TDIU in an October 2020 determination. Following this determination, the Board may now consider the issue. The central inquiry is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran has claimed that his service-connected disabilities, specifically PTSD, prevent him from securing or following a substantially gainful occupation. Turning to the evidence, an October 2010 VA examiner found that PTSD caused symptoms of exaggerated startle response, depressed mood, anxiety, chronic sleep impairment, and hypervigilance. The Veteran explained how he was always afraid of being in crowds and had to stay constantly alert. The examiner determined that the Veteran’s symptoms and their corresponding frequency and severity resulted in occasional decrease in work efficiency and intermittent inability to perform occupational tasks. This evidence does not support a finding of total occupational impairment. A November 2012 VA examiner noted symptoms of depressed mood, flattened affect, and anxiety. The Veteran described experiencing nightmares and sleep disturbances. The examiner determined the frequency and severity of the Veteran’s symptoms corresponded to occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. This evidence does not support a finding of total occupational impairment. In January 2013, a VA contract examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances in motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The Veteran described a newly developed fear of driving, and that he sometimes noticed shadows out of the corner of his eyes. The examiner determined the frequency and severity of the Veteran’s symptoms corresponded to occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. This evidence does not support a finding of total occupational impairment. During a January 2018 VA examination, the Veteran described that he was living with his mother, was close to five of his children, and talked to one close friend and his siblings every week. The examiner noted symptoms of anxiety, chronic sleep impairment, and mild memory loss. Additionally, the Veteran again described seeing shadows out of the corner of his eyes. The examiner determined the frequency and severity of the Veteran’s symptoms corresponded with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. This evidence does not support a finding of total occupational impairment. The Veteran has also received periodic VA medical treatment for PTSD during the appeal period. An October 2014 medical appointment included a positive PTSD screen, and he reported nightmares, avoidance, loss of enjoyment, demonstrated strong reactions to stressful situations, with extreme difficulty falling or staying asleep. In an April 2017 appointment, he endorsed trouble controlling rage, and that he would yell at the individuals in the homeless shelter he was running when enforcing the rules. He continued stating that he saw shadows out of the corner of his eyes and had gotten in a car accident after trying to dodge a car when in fact there was no vehicle there. In November 2017 during an initial VA mental health evaluation, the Veteran described symptoms of lack of sleep, rage, anger, problems dealing with intense emotions, irritable mood, and lack of motivation. He described being triggered by the news and continued to have difficulty with crowds due to his anxiety. In VA social work mental health appointments from February 2018 to September 2018 he described his continuing struggles with sleep and having an irritable mood. The provider found his judgment and insight each ranged from poor to fair during these appointments. He described during July 2019 and October 2019 VA medical appointments that his sleep issues were difficult, but he was managing to cope and had been surviving despite the odds. Turning to service-connected hypertension, during an October 2014 VA medical appointment he told the treating professional he stopped taking his blood pressure medication because it made him sick. A November 2016 VA examiner confirmed the diagnosis of hypertension but found it had no functional impact on the Veteran’s ability to work. A January 2018 VA examiner once again confirmed that the symptoms of hypertension did not cause any functional impairment. Next, in October 2011 a VA examiner found that the Veteran’s service-connected hearing loss caused difficulties in hearing the telephone and understanding speech. Additionally, the Veteran reported his service-connected tinnitus caused problems concentrating. He reported to a February 2017 VA examiner that his hearing loss caused him to ask people to repeat what that have to say, that he needed to turn the television up to hear it clearly, had trouble hearing in church, and that tinnitus made it hard to concentrate while his ears were ringing. As to his education and training, the Veteran had four years of high school and a single year of college. His military occupational specialty (MOS) showed he worked in supply management, and he worked as a yard clerk for a long period of time before being let go from a full-time position in 1985. The evidence as to the Veteran’s employment status during the period on appeal is somewhat inconsistent. In the last unambiguous full-time job of record, he was let go from in 1985 due to substance abuse issues, well before the period on appeal. During an October 2010 VA examination, he stated that he had been working the past ten years washing cars and had a good relationship with his supervisor and coworkers. He referenced this again in January 2013 VA examination, saying he washed cars but that it was not a regular or full-time job, and he had not had one for years. During a May 2019 VA examination he reported running “odd jobs,” which he claimed in a separate May 2019 statement that he was rarely paid for. In the March 2019 application for TDIU, he listed working miscellaneous jobs from March 2014 to February 2017 totalling twenty hours per week and never earning more than $300 per month. However, there is conflicting evidence when it comes to his position either founding, running, working for, or volunteering for one or more homeless shelters. In a January 2013 VA examination, he claimed to have established a homeless shelter thirteen years prior, which he ran. He elaborated that the residents were living in five or six houses which he rented and fixed up. Subsequently, he discusses running a single shelter, and it is uncertain whether the single shelter consists of multiple houses, or if he ran fewer later in the appeal period. What “running” the shelter constitutes is also unclear. In a January 2018 VA examination, the Veteran reported he still ran the shelter, and was a director, but received no pay. He indicated in March 2019 that he was not in charge of any part of the operations of the homeless shelter, nor did he have any training, education, or experience to hold a director level position. Rather, the title was misleading and that same manner that a receptionist could have the title of “Director of New Client Operations.” The Veteran again stated during a May 2019 VA examination that he did not receive pay for running the shelter. It is thus unclear precisely what the Veteran does at the shelter, and his level of responsibility for its management. The Veteran has claimed via his attorney at several junctions that he has protected employment. Again, it is unclear if this was another characterization of his role at the shelter, or a description of the odd jobs he completed for occasional pay during the entire appeal period. The sum of evidence of record indicated at no point did his income from these small jobs exceed the relevant poverty thresholds established by the Census Bureau. Assuming the Veteran is not compensated for the shelter work, he thus has only temporary, marginal employment during the appeal period. The evidence does not show frequent missed time or hospitalization during the appeal period due to his service-connected disabilities. Additionally, there is also no definitive evidence that shows that he was let go from, or unable to obtain substantially gainful employment during the appeal period. The inquiry in a TDIU claim is not whether the Veteran was gainfully employed during the appeal period, but instead whether he was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. As relayed above, he has not reported functional impact from his service-connected hypertension. He stated that hearing loss and tinnitus caused some difficulty in understanding others and concentration, but as shown by his frequent volunteering and communications with medical providers, neither rise to the level of precluding dealing with customers or coworkers. PTSD, and its associated sleep impairment, has the greatest functional impact on the Veteran’s employability. He has described how few hours of sleep he is able to have, his irritability and disturbances of mood, and difficulties dealing with crowds. The 50 percent rating assigned for the entirety of the appeal period is indicative of significant functional impairment. However, while he did describe in an April 2017 VA appointment that he started yelling at shelter residents when they did not follow the rules, based on the entire record this seems to have been more of an exception. For the entirety of the appeal period, he maintained relationships with many members of his family, and was able to participate in some capacity with the operation of a shelter. Thus, the evidence does not show that PTSD precluded him from working with or maintaining relationships with others. PTSD may have a negative impact on relationships with either clients or coworkers but does not renders him unable to secure or follow such employment. Further, age is not a consideration when assessing entitlement to a TDIU. As such, the impact of service-connected disabilities on employment that requires more manual labor rather than a high degree of customer interaction must be determined without any consideration of advanced age. The Veteran has not alleged nor does the medical evidence show that PTSD, hypertension, hearing loss, or tinnitus have an impact on his ability to perform physical labor. The evidence does not support any limitations on his ability to sit, stand, lift, or carry. While he may not be able to complete complex tasks as alleged, that does not limit his employment to position with non-complex tasks such as filing, sorting, using the computer, etc. It is possible that due to his service-connected disabilities, he may not be able to work in a position similar to that as a yard clerk, as he did in his last full-time, gainful position. A TDIU is not warranted when a veteran is unable to maintain positions previous to what they held in the past, but rather that they are precluded from substantially gainful employment generally. Here, an entire class of employment with more focus on physical labor or others with non-complex tasks is not rendered unavailable due to service-connected disabilities alone, and as such, entitlement to a TDIU is not supported by the evidence. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.