Citation Nr: 21061483 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-32 084 DATE: October 4, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT For the rating period from May 31, 2012, the Veteran was not rendered unable to obtain or maintain substantial gainful employment as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from October 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision from the Regional Office (RO), which granted service connection for a psychiatric disability, assigning a 30 percent initial disability rating effective May 31, 2012. During the pendency of the appeal for a higher rating for the psychiatric disability, the Board found that an inferred claim for TDIU was raised that attached to the appeal for a higher initial disability rating for the psychiatric disability for the rating period from March 31, 2012. Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). In February 2019, the Board remanded the issue on appeal for additional development, including to provide notice of the TDIU claim and the TDIU claim form for the Veteran to complete and return, request any outstanding treatment records, and obtain VA examinations and an opinion for the service-connected disabilities. A review of the record shows that the updated VA treatment records have been associated with the claim file. The Veteran has not reported any outstanding private treatment records. Although the RO provided the TDIU claim form in September 2019 (VA Form 21-8940) and scheduled a VA examination in June 2020, the Veteran has not submitted a complete TDIU claim, and the VA examination provider reported that the VA examinations were canceled at the Veteran's request. See September 2019 correspondence, June 2020 Exam Request, August 2020 Email Correspondence. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the February 2019 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. TDIU Disability ratings are determined by applying the criteria set forth in VA's Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Cf. Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). TDIU Claim is Denied In the February 2019 Board decision, the Board found that a claim for TDIU was raised by the record. Rice, 22 Vet. App. at 453-4. The Veteran has not put forth any specific argument as to why the service-connected disabilities render him unemployable. The Veteran's service-connected disabilities are the psychiatric disability (rated 70 percent); diabetes mellitus (rated 10 percent); tinnitus (rated 10 percent); bilateral hearing loss (rated 0 percent); and erectile dysfunction (rated 0 percent), with a combined disability rating percentage of 80 percent from May 31, 2012. The service-connected disabilities meet the combined disability rating requirements set forth in 38 C.F.R. § 4.16(a) for consideration of TDIU, as there is at least one disability rated 40 percent with a combined disability rating of at least 70 percent during the relevant rating period. Having considered all the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a TDIU. While the evidence of record reflects that the service-connected disabilities cause some functional limitations and impairment, the evidence of record during the relevant period does not show that the service-connected disabilities rendered the Veteran unable to secure or maintain substantially gainful employment The Board has assessed the impact of the service-connected disabilities on the ability to maintain employment in this case in the context of the Veteran's education, training, and work experiences. The record indicates that the Veteran's psychiatric disability has manifested as occupational and social functioning with symptoms that include nightmares, irritability, depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining social or work relationships, and difficulty in adapting to stressful situations. See April 2013 Disability Benefits Questionnaire. Despite occupational and social limitations associated with the psychiatric disability, the record shows that the Veteran's symptoms have remained stable with medications managed by the Veteran's primary care physician, as the Veteran has not engaged in psychiatric treatment, including psychotherapy, since 2015. The Veteran has been observed to be appropriately groomed and dressed, with normal speech, euthymic mood, logical and linear thoughts, and normal attention and concentration. The Veteran has consistently denied thoughts of self-harm or harming others, delusions, paranoia, or hallucinations. Although he has some social limitations due to irritability and reports that he worries that he could "go off" on someone, the Veteran reported stable relationships with his wife and kids, and he goes golfing weekly with his friends from American Legion and Veterans of Foreign Wars. He also denied any physical fights, interpersonal conflicts, as well as being reprimanded for his behavior or difficulties with work in the past 10 to 15 years. The Veteran also reported that he is able to keep himself busy with household tasks such as yardwork and building and staining a fence around his home. As recently as May 2020, the Veteran endorsed stable psychiatric symptoms with no depression or suicidal ideation despite lack of psychiatric treatment in the past few years. See January 2013, March 2015, February 2016, October 2016, July 2018, May 2020 VA treatment records; see also October 2012, November 2014, June 2017 VA examination reports. The record indicates that the Veteran's diabetes has remained well controlled with diet and medication. The Veteran developed erectile dysfunction due to the service-connected diabetes. The VA examiner in October 2012 assessed a normal penis, testes, and ependymitis, and the record does not indicate that the erectile dysfunction has caused any functional impact on work related activities. See February 2011. April 2017, November 2019, May 2020 VA treatment records; see also October 2012 VA examination report. The most recent audiology findings from a June 2007 VA examination indicates that the tinnitus has manifested as unilateral ringing in the right ear that occurs about once a month and lasts for about one minute but has no effect on the Veteran's daily life. Additionally, the bilateral hearing loss has manifested as an average decibel loss of 26 in the right ear and 45 in the left ear, with a speech discrimination of 96 percent in both ears. The evidence of record does not reflect any additional complaints or treatment for tinnitus and bilateral hearing loss during the relevant rating period. While new VA examinations could have provided valuable evidence of the current functional status and disability picture of the service-connected disabilities, that evidence was not obtained because the Veteran cancelled the VA examinations that were scheduled in June 2020. The VA examination provider reported that the examinations were cancelled per the Veteran's request as the Veteran notified that he no longer wished to pursue the TDIU claim. However, because the Veteran has not submitted a written request to withdraw the TDIU appeal, the Board has considered the TDIU appeal on the merits. See June 2020, July 2020 Examination Requests; August 2020 Email Correspondence. Nevertheless, the latest and most probative evidence from the Veteran during treatment shows that the Veteran stopped working fulltime in 2006 due to the non-service-connected back injury, and resumed working part-time as a delivery driver for an auto parts shop since at least August 2014. See August 2014, March 2015 VA treatment records; see also October 2012, June 2017 VA examination reports. It is unclear whether the Veteran's part-time employment qualifies as substantial gainful employment. In September 2019, the RO asked the Veteran to submit a completed formal application for individual unemployability (VA Form 21-8940) and a Request for Employment Information (VA Form 21-4192). To date, VA has not received from the Veteran a completed TDIU claim form or Employment Information Form, which would provide pertinent information regarding the Veteran's employment status that might support a TDIU claim, and which might have resolved the question of whether the Veteran is engaged in substantial gainful employment or marginal employment. (Continued on the next page) Although the service-connected disabilities have caused some functional impairment commensurate with the degree of compensation the Veteran is receiving, and the specific functional impairments the Board has noted and considered are caused by each disability, the weight of the evidence of record is against finding that the service-connected disabilities have precluded the Veteran from obtaining (securing) or following (maintaining) substantial gainful employment during the TDIU claim period. The more probative evidence of record shows that the Veteran was employed part time as of August 2014. There is no additional, subsequent evidence of record to contradict the Veteran's own, last reported part-time employment as of August 2014, when the Veteran was reporting such history for treatment purposes, and not for compensation. For these reasons, the weight of the evidence of record shows that the Veteran was not rendered unable to obtain or maintain substantially gainful employment by virtue of the service-connected disabilities since May 31, 2012; therefore, the appeal for TDIU must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.