Citation Nr: 21001888 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 10-39 242 DATE: January 12, 2021¬¬¬ ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran’s service-connected disabilities alone do not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.103, 3.340, 3.341(a), 4.16(a), 4.25 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from November 1963 to November 1965. This matter initially came to the Board of Veterans’ Appeals (Board) on appeal from March 2009 and July 2010 rating decisions that assigned an initial 30 percent evaluation for posttraumatic stress disorder (PTSD). During the pendency of the appeal, the Veteran asserted he was unemployable due to PTSD. See March 2014 VA examination report. Thus, entitlement to a TDIU has been on appeal as part and parcel of the increased rating claim. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in October 2013 and a transcript of the proceeding is of record. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The matter was remanded in February 2014, September 2016, and March 2020, and has been returned for further appellate review. The Board finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In the prior remand, the Board directed that the issue be referred for consideration of extraschedular TDIU. This was done in August 2020. 1. Entitlement to a TDIU, to include on an extraschedular basis. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high 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. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection is in effect for the following disabilities: posttraumatic stress disorder (PTSD), evaluated at 30 percent from March 12, 2009 and at 50 percent from August 5, 2011; diabetes mellitus, evaluated at 10 percent from March 16, 2012; left kidney scar, evaluated as noncompensable from January 12, 2016; left chromophobe renal cell carcinoma, evaluated at 100 percent from December 14, 2015 and as noncompensable from July 12, 2016. Prior to December 14, 2015 and on and after July 12, 2016, the Veteran has not met the schedular criteria for a TDIU. Thus, the Board will address whether the Veteran is entitled to a TDIU on an extraschedular basis. During the pendency of the appeal, a June 2020 rating decision granted entitlement to service connection for left chromophobe renal cell carcinoma and assigned a 100 percent evaluation from December 14, 2015 through July 12, 2016. That decision also granted entitlement to special monthly compensation (SMC) based on housebound criteria for that same period. For the period from December 14, 2015 through July 12, 2016 entitlement to a TDIU is moot as the Veteran was in receipt of a total rating and SMC based on housebound criteria. The evidence demonstrates the Veteran has a robust work history, a bachelor’s degree in business, and an insurance license. See August 2009 VA examination report. The Veteran has reported that after completing college, he owned a small car dealership for about ten years until he sold the business in 1979 or 1980. He then worked for Halliburton for about a year and spent a couple of years with another oil company. In 1985 he was partial owner of a small semiconductor company, but the business closed in 1990 due to tax nonpayment. He then started a cleaning company for semiconductor business, but the other owner sold their portion of the business in 1995. He then worked as a manager at an industrial cleaning company, but the owner sold that business in 2004. Then, he provided insurance adjustments at large disaster sites once or twice a year. He also reported buying cars and doing minor business transactions. At the October 2013 hearing, the Veteran reported he last worked full time in 2011 as a warehouse stocker but left because he did not get along with the owner of the company. He indicated his anxiety and anger impaired his ability to get along with others. At the August 2009 VA PTSD examination, the Veteran reported he was forced to retire in 2004 when his company closed, and he felt “too old” to find a new job of that quality. He was irritable and had a hard time working with people, but many of his jobs involved him being a partial owner or manager. He denied missing significant amounts of work due to mental illness. He was able to complete the activities of daily living and enjoyed leisure and playing golf. That examiner assessed PTSD as only having a mild impact on the Veteran’s degree of occupational functioning. At a March 2014 VA examination, the Veteran reported he worked briefly in 2008 as a warehouse stocker but had a difficult time getting along with the owner. He reported he had interviewed for a job driving cars to and from the airport, but he backed out because he did not want to have people sitting behind him that he did not know. He did not discuss further attempts at finding employment. That examiner determined the Veteran’s PTSD symptoms produced occupational and social impairment with reduced reliability and productivity. In June 2018, the Veteran’s friend wrote that the Veteran had worked many jobs that did not last long. They opined the Veteran would not be able to maintain a job due to his anxiety and paranoia. The Veteran underwent another VA examination in November 2019 and continued to report he had not worked since his last examination. That examiner concluded the Veteran’s symptoms would result in occupational and social impairment with reduced reliability and productivity. The examiner went on to specify that the Veteran is 1) likely to be mildly to moderately impaired in a work environment that required frequent interactions with customers, co-workers or supervisor; 2) he is likely to be mildly impaired in a work environment that contained moving machinery or equipment; 3) he is likely to be mildly impaired in a work environment that requires frequent driving; 4) he is likely to be mildly impaired in a work environment that requires the ability to sustain concentration and focus as normally found in most jobs; 5) he is likely to be mildly to moderately impaired in a work environment that is fast paced, complex, and/or frequently changing; and 6) he is likely to be mildly impaired in a work environment that requires a rigid adherence to a set work schedule. In an August 2020 memorandum, the Director of Compensation Service concluded the Veteran’s service-connected disabilities did not result in marked interference with employment or frequent hospitalizations, and the Veteran’s service-connected disabilities did not preclude employment. Overall, the Board finds the Veteran’s service-connected disabilities alone do not preclude gainful employment. The Veteran has not described, and the evidence does not reflect occupational impairment from diabetes mellitus, left kidney scar, or left chromophobe renal cell carcinoma during the relevant period. The Board finds the November 2019 VA examination to be most probative as the examiner fully addressed the degree of functional impairment in a regular work environment due to PTSD based on the lay and medical evidence of record. Overall, the Veteran was assessed as mildly to moderately impaired in various occupational functions and settings. In sum, the probative medical evidence is against a finding of unemployability during the period on appeal. The Board has also considered the lay evidence of record. The Veteran has testified to difficulty getting along with others, and even left his most recent position due to inability to get along with the owner. See March 2014 VA examination. In that position, the Veteran was a regular employee rather than an owner or manager. At the August 2009 VA examination, the Veteran explained that although he had a hard time working with others, many of his jobs involved him being a partial owner or manager and he had not missed any work due to PTSD. The Veteran’s training and expertise qualifies him to work in a variety of physical or administrative positions, including those that would entail limited interaction with others and independent work. The Veteran’s friend has also reported the Veteran is unemployable due to anxiety and paranoia, but the Board finds the 2019 VA examiner’s comprehensive evaluation to be more probative. The Veteran’s friend is competent to report factual matters of which he or she has first-hand knowledge, but not to provide an assessment on the functional impairment due to psychiatric disability. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As a result, the 2019 VA examiner’s assessment of functioning is most probative. The Board has also considered the lay testimony that age is a barrier to employment, but this is not an appropriate concern for the grant of a TDIU. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. In sum, the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability. As the evidence preponderates against the claim, there is no reasonable doubt to be resolved and the claim to a TDIU is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.