Citation Nr: 21061728 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-31 269 DATE: October 5, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The most credible and probative evidence reflects that the Veteran has not been able to secure and follow a substantially gainful occupation by reason of his service-connected disabilities alone at any time during the period on appeal. CONCLUSION OF LAW The requirements for a TDIU, to include on an extra-schedular basis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1967 to October 1969. This current matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision. In March 2017, a videoconference hearing was held before a Veterans Law Judge (VLJ) no longer with the Board, and a transcript is of record. As the VLJ who presided at a hearing must participate in the decision on the claim [See 38U.S.C. § 7107(c), see also 38 C.F.R. § 20.706], the Veteran was offered, in an April 2020 letter, the opportunity for another hearing before a VLJ who would decide his case. He did not respond within the requisite 30 days, and it was, therefore, assumed that he waived this hearing. 38 C.F.R. §§ 20.106(b), 20.706. This case was most recently before the Board in July 2020. At that time, the Board remanded the Veteran's claim for records to be obtained from the U.S. Railroad Retirement Board (USRRB) pertaining to his medical disability separation from employment with Norfolk Southern Corporation. Although the Regional Office (RO) was unable to obtain these records from the USRRB, his representative submitted these records subsequent to the RO issuing a supplemental statement of the case on the Veteran's claim. The Veteran waived initial RO adjudication of these records by way of a September 2021 letter from his representative. Thus, the Board has jurisdiction to decide the Veteran's claim and to consider this evidence in the first instance. See 38 C.F.R. § 20.1305(c) TDIU All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability compensation ratings may be assigned where the schedular rating is less than total when the disabled person is, in the rating agency's judgment, unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, and, if there are two or more disabilities, there is 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). "Marginal employment," as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the United States 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 the veteran actually works and without regard to the veteran's earned annual income." Other factors considered in determining whether a veteran is unemployable are his level of education, employment history, and his vocational attainment. Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). However, advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). Additionally, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. During the appeal period (June 5, 2014 to present), the Veteran's service-connected disabilities consisted of posttraumatic stress disorder (PTSD) (rated as 50 percent disabling); diabetes mellitus, type II, (rated as 20 percent disabling from July 9, 2015); and tinnitus (rated as 10 percent disabling). Throughout the appeal period, he had a combined total disability rating of 60 percent. See 38 C.F.R. § 4.25. Because he did not have multiple disabilities with a combined rating of 70 percent, he does not meet the minimum rating requirements of § 4.16(a) for a TDIU rating. Where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may still be considered if a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board may not assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the record. Barringer v. Peake, 22 Vet. App. 242 (2008). After a review of the relevant lay and medical evidence of record, the Board finds that a remand for referral of the Veteran's claim for consideration of a TDIU on an extraschedular basis is not warranted. In this regard, the Veteran's spouse submitted a written statement in support of his claim dated in May 2014, wherein she stated that the VA had put him on medications that turned him into a zombie. However, the medical evidence of record does not support a finding that the medicine he has been prescribed for service-connected disabilities have affected him in such a way, nor has the Veteran reported such. At a July 2014 VA PTSD examination, the examiner concluded that the Veteran's psychiatric condition impacted his ability to work in that he would experience disrupted sleep and periods during which he was emotionally triggered and would decompensate. The examiner also noted that the Veteran would experience significant anxiety in crowds and irritability that would interfere with interpersonal functioningand that he would likely be distracted frequently by anxiety and in response to some triggers, which would require time to cope and regroup before returning to regular work activities. Also, at a July 2015 VA diabetes mellitus examination in July 2015, the examiner concluded that the Veteran's diabetes mellitus did not impact his ability to work. The Veteran submitted an application for a TDIU in July 2016, wherein he stated that his service-connected PTSD and diabetes mellitus prevented him from securing or following any substantially gainful occupation. He reported that he last worked in 1992 in railroad maintenance, where he earned, at most, $30,000 in one year, 1990. He had held this position with Norfolk Southern Corporation from December 1969 to July 1992, and had to leave employment because of a disability. He had not tried to obtain employment since becoming too disabled to work in 1992. He had completed high school and had no subsequent schooling or training. At the March 2017 hearing before the Board, the Veteran testified that his service-connected PTSD and diabetes mellitus contributed to his inability to maintain employment. He reported last having worked in 1992 for the Norfolk Southern Corporation in a position of physical labor maintaining railway tracks. His highest level of education was high-school, and he had no other special training. As for his PTSD, the Veteran testified that he had trouble relating to other people and would have to be careful interacting people if placed in a customer-service related position, but he probably would be able to interact with others in such a situation. He would have difficulty with concentration and production and communicating with others at times. He had anxiety and would experience panic attacks maybe once or twice a week. Sometimes, during the day, he would get flashbacks which would be especially triggered by watching the news. He described his panic attacks as causing difficulty breathing and thinking, and he would often forget why he walked into his kitchen. He reported having a "little bit" of difficulty with memory and concentration, but did not believe that his depression and anxiety would interrupt his ability to maintain a consistent work schedule or cause absences from work, as his difficulties were mainly with interacting with others. His work on the railways would often be in small groups of five or six people away from crowds, and he often worked with other Vietnam veterans, which made it easier to work in a small group. As for his diabetes mellitus, he testified that he would experience rises in blood sugar and crashes that causing him to get light-headed and dizzy requiring him to sit down and relax any possibly eat something to get his blood sugar to rise. He would have to stay hydrated and remain in close proximity to a restroom, which made it difficult to work in locations where a restroom was not close. He also testified that he could not be on his feet for any length of time because of the neuropathy in his legs. The Board notes that the Veteran is not service-connected for neuropathy at this time. Basically, he testified that his concentration and memory issues associated with his psychiatric symptoms coupled with his needing frequent bathroom breaks and special accommodations for his diabetes mellitus to keep his blood sugar levels and hydration stable would impact his ability to work. A position which was labor-intensive could cause him to get light-headed, and a sedentary job would likely require working with people, and he was not sure he would be able to handle such a position full-time. The Veteran also testified that he had not tried to obtain employment since he last worked in 1992, nor had he tried to enroll in a vocational rehabilitation program. He had been on railroad disability from 1992 because he was in an accident and was found to have occupational disability such that he could not perform his job duties. When he turned 65 years old, he was no longer on the railroad disability program and began receiving Social Security benefits. The Veteran also reported receiving psychiatric care at the Toledo Vet Center where he would attend weekly two-hour group therapy sessions and had received individual therapy with VA once every three months. The Veteran underwent a VA diabetes mellitus examination in February 2020 to ascertain the effects of this disability on his ability to maintain substantially gainful employment. The examiner concluded that the Veteran was able to perform at least light and sedentary work due to his diabetes. At a February 2020 VA PTSD examination, the examiner concluded that the Veteran's current mental health symptoms would negatively impact his occupational functioning in the following areas (with severity level of impairment in parentheses after each category): concentration, persistence, and pace (moderate) due to depression, intrusive thoughts, sleep difficulties, lack of appetite, and difficulty concentrating; social functioning (mild) due to hypervigilance and occasional irritability. (The Veteran did not report any problems completing activities of daily living.) The examiner noted that functioning in an occupational environment was not likely to aggravate the Veteran's mental health symptoms and that he had worked in physically demanding jobs for the majority of his work experience (medically retired from railroad work in 1993 after 22.5 years due to a physical injury), which he reported being unable to do currently due to his physical limitations. The examiner also noted that the Veteran's highest level of education is a high school diploma and that he did not have any specific training for more sedentary jobs. The Board notes, however, that the examiner did not provide any rationale as to why sedentary jobs would require the Veteran to have had specific training and that such is not a medical conclusion for an examiner to make. At a July 2020 VA tinnitus examination, the examiner found that the Veteran's tinnitus impacted his ability to work in that he would have difficulty hearing, especially when his hearing aids were not being worn. However, this conclusion appears to reflect how the Veteran's hearing loss, not tinnitus, would affect his ability to work, and the Veteran is not service-connected for hearing loss. The Board has also reviewed the Veteran's USRRB records submitted by his representative. Although they corroborate his reports of having retired in 1992 based upon a medical disability, they do not contain any medical records regarding the disability which led to his employment ending. They contain a statement from the general attorney that the Veteran's related medical records were being forwarded directly to him, and he could release them at his discretion. The Veteran did not submit any medical records related to this disability. Thus, there is no evidence to corroborate any indication that disabilities which led to his retirement included those for which he is service-connected. Rather, the evidence of record suggests that this disability stemmed from a physical injury, rather than the service-connected PTSD, diabetes mellitus, or tinnitus. Although the Veteran contends that his service-connected disabilities prevented him from maintaining substantially gainful employment during the period on appeal, there is persuasive evidence in the record, in the form of his work experience, medical opinions, and treatment records that suggest that, while he has limitations, he is not prevented from obtaining or sustaining substantial gainful activity due to his service-connected disabilities. Medical examiners have declined to state that he was not capable of performing gainful work in light of his service-connected disabilities. At most, the examiners have indicated that he experienced mild to moderate employment limitations, if any, due to these conditions. Further, his own Board testimony indicated that he would be able to perform work in a sedentary setting near a restroom if he was allowed to sit and eat when needed to manage his blood sugar. He also testified that he did not foresee his psychiatric symptoms causing him to miss time from work. Although the February 2020 VA examiner indicated that the Veteran did not have training for sedentary jobs, no evidence has been submitted that the Veteran had ever attempted to obtain sedentary jobs and that he was denied such employment due to a lack of training. The Board notes that the Veteran is considered competent to describe symptoms of his service-connected disabilities, as they are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Also, there is no dispute that his service-connected disabilities caused some impairment during the appeal period. However, it is based on this impairment that the Veteran has already been assigned a 60 percent combined disability rating. The weight of the evidence does not show that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities alone. The VA examinations for the Veteran's service-connected disabilities indicate that he has some occupational impairment, but not total. The Board does not wish to minimize the nature and extent of the Veteran's overall disabilities. However, the evidence of record does not support his claim that his service-connected disabilities alone are sufficient to warrant the assignment of a TDIU. Although they produced some impairment, the evidence does not reflect gainful employment was precluded due to his service-connected PTSD, diabetes mellitus, and tinnitus. Referral of this TDIU claim on an extraschedular basis is not warranted. The weight of the competent and credible evidence establishes that the Veteran was not precluded from all forms of substantially gainful employment due solely to his service-connected disabilities at any time during the period on appeal. The preponderance of the evidence is against the claim for TDIU, and this issue is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.