Citation Nr: 21003860 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 14-08 146 DATE: January 25, 2021 ORDER The claim for entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to July 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in December 2017. At that time, the issues on appeal also included several claims for service connection and increased ratings. The Board expanded the appeal to include entitlement to TDIU as part and parcel of the claim for an increased rating for posttraumatic stress disorder (PTSD). See Rice v. Shinseki, 22 Vet. App. 447 (2009). All the issues on appeal were then remanded for additional development and the case has now returned to the Board for further appellate action. As reflected on the title page of this decision, the only issue currently before the Board is entitlement to TDIU. The other issues on appeal (the claims for service connection and increased ratings) were originally before the Board from rating decisions issued under VA’s legacy appeal system, but following an April 2020 supplemental statement of the case, the Veteran opted these claims into the modernized review system (known as the Appeals Modernization Act (AMA)) via a request for Higher-Level Review. The withdrawal of these claims from the legacy system was confirmed in an October 2020 letter from VA and they are now the subject of a separate appeal under the AMA. The Veteran did not include the claim for TDIU in his withdrawal from the legacy system, and the Board will therefore continue with a decision in this case solely on the claim for entitlement to TDIU. 1. Entitlement to TDIU. The Veteran contends that he is unemployable due to his service-connected PTSD. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Veteran satisfies the percentage criteria for a TDIU. See 38 C.F.R. § 4.16(a) (providing for TDIU when there are two or more disabilities with at least one rated 40 percent or more and sufficient additional disabilities to bring the combined rating to 70 percent or more). The central inquiry in a claim for TDIU 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). The Veteran has not provided any specific information regarding his education or work history, despite multiple requests from VA that he do so. Nevertheless, review of the Veteran’s medical records shows that he has reported having a high school education, as well as training and certification courses pertaining to steel working and heating, ventilation, and air conditioning (HVAC) repair. He has worked consistently since his discharge from active service, aside from an approximate two-year period from 2016 to 2018. He first worked in construction as a steel worker on union jobs until approximately 2013, when he joined his father-in-law’s propane and seed sale business performing various tasks and driving the delivery truck. During an August 2015 private psychological evaluation, the Veteran also reported that he worked in HVAC repair “on the side” while working for his father-in-law. His working relationship with his father-in-law degraded and in 2016, the Veteran began a new unspecified industrial job that led to an increase in stress and anxiety due to the change in work environment. He left this job in approximately March 2016 and was unemployed through 2018 when he became self-employed in HVAC repair. In 2020, in response to the COVID-19 pandemic, the Veteran began teaching classes online—presumably pertaining to his HVAC experience. Thus, the available record establishes that the Veteran was employed in skilled manual jobs throughout the claims period except during the period dating from 2016 to 2018. There is no evidence indicating that this employment was less than full time or otherwise not substantially gainful at any time during the claims period. The Board therefore finds that the Veteran is not unemployable at the present time or during the periods where he worked as he was capable of performing the mental and physical tasks required for full time employment. Regarding the two-year period of unemployment from 2016 to 2018, the Board finds that the Veteran was not unemployable due to PTSD. The available medical and lay evidence establishes that the Veteran’s service-connected PTSD has significant effects on his employment due to symptoms of irritability, anger, low concentration, and difficulty establishing and maintaining effective relationships. However, the evidence does not establish that his PTSD was of sufficient severity to render him unemployable and unable to obtain and maintain substantially gainful employment during the period he was not working. The Veteran stated that he left his job in March 2016 due to increased stress and anxiety consistent with his PTSD symptoms, but the Board does not find that he was unemployable during this period. He stated during a February 2016 mental health visit at the VA Medical Center (VAMC) that his new job had led to “extreme occupational distress” and anxiety due to a change from his previous work environment; he now worked in a confined and noisy industrial area alongside peers with whom he had interpersonal conflicts. These symptoms led to the Veteran leaving his job in March 2016 and seeking additional mental health treatment at the VAMC. While the impetus for the Veteran leaving his current job in March 2016 may have been related to his PTSD symptoms, the Board finds that the record fails to support that his continued unemployment during this period was due to unemployability related to PTSD. The Veteran told his VA psychologist in June 2016 that lack of work was related to having “difficulty figuring out” what he wanted to do in his life. One of his long-term goals for PTSD therapy was to find a career, and as discussed above, the Veteran returned to full time self-employed HVAC work in 2018. None of his treating providers during this period found that the Veteran was unemployable due to PTSD and his symptoms were noted to improve with medication and therapy. VA examiners in December 2010, September 2013, and September 2019 identified some impact to occupational functioning due to PTSD, but this impairment was characterized as moderate, mild, and no more than reduced reliability and productivity, respectively. A private psychologist identified more severe occupational impairment in August 2015, but even at that time, the Veteran was not characterized as unemployable. Instead, the private psychologist opined that the Veteran had occupational and social impairment in most areas, and he preferred to work by himself and avoid situations that irritated him excessively. Thus, the Board finds that while the Veteran was unemployed from 2016 to 2018, the competent evidence does not establish that he was unemployable. The Veteran is currently working fulltime, and the lay and medical evidence does not establish that his PTSD was of sufficient severity to render him unemployable and unable to obtain and maintain substantially gainful employment at any time during the claims period. The Board has considered the statements of the Veteran regarding the impairment associated with his service-connected PTSD and other disabilities, but notes that he has not provided any specific argument or contentions in support of the claim for TDIU. In any event, the Board finds that the competent medical evidence addressing the impact of the Veteran’s PTSD on his occupational functioning is the most probative evidence regarding his employability. Although the Veteran was unemployed during a two-year period from 2016 to 2018, the competent evidence does not establish that he was unemployable during this time due to PTSD. The evidence therefore establishes that the Veteran is not unemployable due solely to service-connected PTSD. Accordingly, the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, supra; 38 C.F.R. §§ 4.15, 4.16, 3.340, 3.341. K. CONNER Veterans Law Judge Board of Veterans’ Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.