Citation Nr: 21002444 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-14 344A DATE: January 13, 2021 ORDER Prior to November 19, 2016, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT Prior to November 19, 2016, the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW Prior to November 19, 2016, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2014 issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2018 and September 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to a TDIU prior to November 19, 2016. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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). Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, 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 v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), it was held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities”. Additionally, the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) was defined to include two components: economic and noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. From April 23, 2013, the date of receipt of the Veteran’s increased rating claim for his diabetes mellitus, type II, to November 19, 2016, he is service-connected for posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling prior to November 10, 2014, and 70 percent disabling thereafter; diabetes mellitus, type II, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as noncompensably disabling. Consequently, his combined disability rating is 50 percent prior to November 10, 2014, and 80 percent thereafter. Thus, he meets the schedular threshold for consideration of a TDIU as of November 10, 2014; however, prior to such date, he does not and, thus, a TDIU is only available on an extra-schedular basis. Therefore, the remaining inquiry is whether his service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and work history prior to November 10, 2014, such that referral to the Director is warranted, or as of such date, such that an award of a TDIU is warranted. In regard to the Veteran’s education and work history, in his November 2016 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he completed eight years of grade school and last worked full-time in 2001 as a plumber. As pertinent to the impact his service-connected disabilities had on his ability to secure or follow a substantially gainful occupation prior to November 19, 2016, an October 2013 VA examiner found that the Veteran’s diabetes mellitus, type II, did not impact his ability to work and a January 2017 VA examiner determined that his bilateral hearing loss and tinnitus did not impact his ordinary conditions of daily life, to include his ability to work. In this regard, the Board has considered a March 2015 opinion from the Veteran’s private physician, Dr. R.S., in which he indicated that he had been treating the Veteran since July 2003, and had diagnosed him with diabetes mellitus, type II. He further reported that the Veteran had been prescribed both insulin and restricted diet to treat such disorder, and experienced pain, fatigue, and other symptoms that were severe enough to interfere with attention and concentration. In this regard, Dr. R.S. stated that, if the Veteran were to work, he would estimate that he would be absent more than three times a month. Thus, Dr. R.S. concluded that he did not feel the Veteran would be capable of performing gainful employment as a result of his poorly controlled diabetes mellitus, type II. However, the Board finds that Dr. R.S.’s conclusion is not supported by the remainder of the record, and thus, such determination is afforded less probative weight than the conclusions reached by the VA clinicians who examined the Veteran over the course of many years. Specifically, the October 2013, January 2017, and June 2019 VA examiners each determined that the Veteran’s diabetes mellitus, type II, did not impact his ability to work. Further, such examiners all found that such disability did not require a need for regulation of activities, or result in any symptoms, to include loss of strength, or complications. Thus, the Board finds that the probative evidence of record fails to show that the Veteran’s diabetes mellitus, type II, impacts his ability to perform the mental or physical acts necessary to secure or maintain substantially a gainful occupation consistent with his education and work history. Additionally, while a May 2015 VA examiner determined that the Veteran’s PTSD resulted in social and occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, he has been in receipt of a 70 percent rating for his PTSD as of November 10, 2014, which contemplates occupational and social impairment in most areas. However, the Board finds that the nature, frequency, severity, and duration of the Veteran’s psychiatric symptomatology prior to November 19, 2016, to include mild memory loss, disturbances of motivation and mood, and difficulty (rather than an inability) in adapting to stressful circumstances, and resulting functional impairment does not reflect that he would be unable to perform the physical or mental acts necessary in his prior position as a plumber. In fact, the examiner noted that, under the right set of circumstances, the Veteran is capable of meeting external demands in all realms and his mental status examination was within normal limits. Rather, the evidence shows that the Veteran was found to be rendered unemployable due to his PTSD based on findings from a January 2017 VA examination. Specifically, for the first time, it was found that such disability impaired the Veteran’s ability to perform work that required any responsibility, consistency, or reliability, and he did not exhibit the ability to psychologically motivate himself or focus himself to follow through on projects or to concentrate to avoid mistakes that could result in accidents or mistakes affecting the product or the other workers. Thus, in light of the documentation of increased symptomatology interfering with the Veteran’s occupational functioning to the point where he was rendered unemployable at the January 2017 VA examination, the RO awarded a TDIU as of November 19, 2016, the date of receipt of his application for such benefit. Further, to the extent that the Veteran and his representative have attempted to establish his entitlement to a TDIU on the basis of lay assertions alone (see November 2020 Appellant’s Post-Remand Brief), the Board emphasizes that neither the Veteran nor his representative is shown to possess expertise in medical or vocational matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Rather, while they are competent to describe the Veteran’s symptoms associated with his service-connected disabilities, they are not competent to offer an opinion regarding the functional impact such have on his occupational functioning, to include the ability to secure or maintain gainful employment. Hence, the lay assertions in this regard have no probative value and are outweighed by the more probative medical evidence. In this regard, the competent medical evidence offering detailed determinations on the Veteran’s functional impairment are the most probative evidence; the medical evidence also largely contemplates the Veteran’s assertions concerning his employment and description of symptoms. Moreover, such described impairments were compensated by the assigned schedular ratings for such disabilities. Van Hoose, supra. Furthermore, the record reflects that, prior to November 19, 2016, the Veteran had been determined to be unemployable based on nonservice-connected disorders. Specifically, such demonstrates that he has been awarded Worker’s Compensation benefits and Social Security Administration (SSA) disability benefits based on asthma and chronic obstructive pulmonary disease due to exposure to chemicals, to include TCE, at work. See October 2005 written statement, April 2007 VA treatment record, and October 2012 VA treatment record. Therefore, the Board finds that, prior to November 19, 2016, the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Thus, the benefit of the doubt doctrine is not applicable in the instant appeal, and referral for consideration of a TDIU on an extra-schedular basis is not warranted and a TDIU on a schedular basis must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.