Citation Nr: 21061832 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 14-39 044 DATE: October 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2010 to August 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal rom a May 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in August 2020. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. 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). As an initial matter, the Board notes the schedular requirements for a TDIU are met. In this regard, the Veteran is service-connected for posttraumatic stress disorder (PTSD), rated as 70 percent disabling from September 1, 2012 and laceration of the left thumb, rated as zero percent disabling from September 1, 2012. He has a combined rating of 70 percent from September 1, 2012. The Veteran claims he is unable to work due to his service-connected PTSD. Accordingly, the claim turns on whether the Veteran's service-connected PTSD precludes gainful employment. In order to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The question in a TDIU claim is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or to the impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. 361. Pursuant to the Board's August 2020 remand, the RO was instructed to request that the Veteran submit detailed information regarding his employment and income history for the years in which he claims to have been precluded from maintaining gainful employment due to his service-connected disability. To that end, the RO requested such information from the Veteran in a September 2020 letter. In addition, the RO included VA Form 21-8940 Application for Increased Compensation Based on Unemployability and VA 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits for the Veteran to complete. However, to date, the Veteran has not submitted the requested information, nor has he completed VA Form 21-8940 or 21-4192. While the failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to address a claim for TDIU. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, the evidence of record indicates that the Veteran has worked in several jobs throughout the period on appeal. Most recently, the Veteran's February 2019 VA examination that the Veteran was employed at the time and had recently been transferred from a cable technician to a desk job. The October 2018 DBQ provided by the Veteran indicates that this job was a full-time position and included accommodations. VA treatment records dated June 2013 show the Veteran worked at American Woodmark as a cabinet maker. Per an August 2013 VA treatment note for a back condition, the clinician reported that the Veteran works and has difficulty when he misses work and places his job at risk in order to attend appointments at the VA Medical Center. The Veteran's September 2013 VA examination reported that the Veteran had been employed by a cabinet factory for the past few months, after leaving his position at a jail because he could not tolerate being around so many people. The Veteran further reported at that time that when he obtained his current job, he asked for a job where he could work by himself which his employer was able to accommodate, and the Veteran stated it was working out okay. The examiner reported that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In his October 2013 notice of disagreement, the Veteran reported he was recently fired from his position as a correctional officer and arrested (also losing his spot for the city police department). He stated his current work at American Woodmark told him he was not promotable due to his effective work and social relationships (losing temper over little things). Per a June 2014 VA psychology note, the Veteran reported working part-time in the early mornings for UPS. Per a July 2014 VA psychology note, the Veteran reported that he quit his job with UPS due to a lack of hours and was working for a chip delivery company and was happy with that. He reported that he was also picking up some other part-time work. On his October 2014 VA Form 9, he reported that after losing his job as a correctional officer and with the city police department, he started working for UPS but lost that job due to not showing up for being in jail for domestic violence for a second time. He stated he currently worked one day per week at a veterans' bar because he is unable to handle an everyday job and he has lost interest in obtaining a job. A May 2016 VA treatment note shows that the Veteran reported hesitation in attending both in and outpatient treatment due to work obligations and his being the sole wage earner of his family. In October 2018, the Veteran submitted a private evaluation performed by H.H.G., Ph.D., HSPP (health service provider in psychology). Pursuant to a residual functional capacity evaluation re: ability to do work-related activities (mental), H.H.G. reported that out of a 40-hour work week, the Veteran missed/had to leave his workplace early three or more days per month due to mental problems. In addition, she reported that more than three days per month the Veteran would not be able to stay focused for at least seven hours of an eight-hour workday. Regarding whether the Veteran would respond appropriately if he were subjected to the normal pressures and constructive criticisms of a job, she reported that more than once per month the Veteran would respond in an angry manner but would not actually become violent. Pursuant to H.H.G.'s evaluation of the Veteran, she reported that the Veteran struggled sustaining the stress from a competitive work environment from 40 hours a week. He had been working for Atlantic Cable for two years, working 40 hours a week. The Veteran reported that his job is in installation which is a solitary job, and he received accommodations from his employer to attend VA appointments, called in sick more than three times per month and leaves early "just about every day." He described not getting enough restful sleep and feeling fatigued nearly every day which would be a safety issue in the workplace. He reported difficulty remembering events, requests and occasionally forgetting details or sequencing that would affect his employment. He has difficulty maintaining and sustaining a steady mood and this inconsistent mood leads to problems in his work and social life. He reported that he has not been able to have meaningful occupational or social relationships and believes that he could not let others into his life because of his issues with trust. He remarked that he feels nervous and worries and struggles with ongoing anxiety issues; this sort of anxiety is a safety hazard on the job. H.H.G. stated that with poor interpersonal skills and workplace trust issues, the Veteran would have an increase in paranoia and would struggle with appropriate work interaction. He has physical signs of depression that interfere in daily work as these signs manifest as extreme fatigue, hypersomnia, appetite issues, weight fluctuation and emotional outbursts. Additionally, suicidal ideation causes problems within the workplace through a manifestation of fatigue and lack of concentration. Individuals with higher distractibility, absenteeism and emotional turmoil could be deemed as inappropriate in the workplace. H.H.G. further noted that there is a body of literature detailing the connection between PTSD and unemployment. In fact, she stated studies confirm the association of higher unemployment and PTSD related to the presence of a sense of foreshortened future by those suffering from PTSD. Additionally, a study found that veterans diagnosed with PTSD and chronic unemployment and/or underemployment have social struggles (e.g., inadequate transportation, poor housing options, family care burdens, and other social responsibilities) which serve as barriers to gainful employment. Furthermore, research indicated that a PTSD diagnosis leads to occupational dysfunction and poor work-related quality of life. Therefore, not sustaining and maintaining meaningful gainful employment is a resulting social and occupational symptom of debilitating PTSD. H.H.G. opined that the Veteran's PTSD hinders him from maintaining substantially gainful employment without accommodations. Pursuant to an October 2018 PTSD Disability Benefits Questionnaire (DBQ), H.H.G. reported the Veteran with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. However, she also noted that the Veteran's current full-time job with accommodations is for Atlantic Cable. The Veteran's February 2019 VA examination reported that the Veteran had recently been transferred from cable technician to a desk job due to leaving work early and going home. The Veteran further reported he cannot understand why he has not been fired. He stated he used to just leave work and go home and was moved to a desk job where his job was to trouble-shoot any problems. He stated he cannot see how he is going to handle this but noted that he had not started the position yet, "so we will see." The examiner reported that the Veteran with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A February 2020 VA tele-psychiatry note shows the Veteran is working desk work for a cable company, from 7:30 am to 4:30 pm. Per an August 2020 VA telephone encounter, the Veteran reported that he was doing well at work with the cable company. Upon review of the record, there is no evidence indicating the Veteran's employment status prior to October 2018 and since February 2020. The Veteran's failure to complete the VA Form 21-8940 leaves the Board without the ability to request information from his prior employers as to his reasons for leaving, accommodations provided, and leaves the Board without information as to whether the Veteran has since obtained some form of gainful employment and whether his past employment could be considered marginal or sheltered. Although the Veteran reported he is unable to work as a result of his service-connected PTSD, none of the VA examiners have indicated that the Veteran was unemployable as a result of his PTSD. Indeed, the record indicates that the Veteran has maintained full-time employment with accommodations with the cable company he was reported to work at as most recently as August 2020. In sum, the most probative evidence shows that the Veteran was not rendered incapable of performing the physical and mental acts required by employment due to his service-connected disabilities. See Van Hoose, 4 Vet. App. at 63. Accordingly, TDIU is not warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina 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.