Citation Nr: 21061878 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-41 484 DATE: October 5, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude the Veteran from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 2008 to October 2011. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal and the Iraq Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran withdrew his hearing request in January 2020. This claim was previously remanded by the Board in April 2020 for further development, to include providing VA examinations. The Board finds substantial compliance with the remand directives and therefore another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). In April 2020 the Board also denied the Veteran's claims for an increased rating for his psychiatric disability and erectile dysfunction, and service connection for a rash, allergic rhinitis, and bilateral lower extremity pinched nerves. In an August 2020 rating decision, the RO granted service connection for left lower extremity sciatica and increased his lumbar spine disability rating to 40 percent effective July 2020. Additionally, while the RO did not explicitly deny the claim for a TDIU, it instead noted in an introductory note that the Veteran was still working and should contact the RO when he stops. Thus, the Board finds the RO considered the TDIU claim and the Board may proceed to adjudicate the merits of the claim. The Board further notes that the Veteran opted his claim for an increased rating of his lumbar spine disability into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR) in September 2020. Additionally, in October 2020, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal, regarding an increased rating for left lower extremity sciatica. Thus, the lumbar spine claim is no longer before the Board, and the Board will address the sciatica claim in a separate decision. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to a total disability rating based upon individual unemployability (TDIU) The Veteran seeks a TDIU. He contends that his service-connected disabilities have resulted in periods of unemployability during the appeal period. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. For the purposes 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, 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); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following service-connected disabilities: panic disorder with agoraphobia (rated 70 percent from October 2011); lumbar spine herniated disc disease (rated 10 percent from October 2011 to July 6, 2020 and 40 percent thereafter); sciatic nerve radiculopathy of the left lower extremity (rated 10 percent from July 6, 2020; and erectile dysfunction (rated 0 percent from October 2011). Based on the forgoing, the Veteran has one disability rated 60 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is not warranted. The Veteran has an undergraduate degree in accounting, a certificate in nursing, and a certificate as an Emergency Medical Technician. He is currently enrolled in a six-year medical school in Poland. His work history consists of the following: transportation officer in the Army from April 2008 to October 2011; hotel concierge; animal presentation at a zoo; bookkeeper; part-time paraglider test pilot from April 2015 to June 2015; customer care representative from October 2015 to June 2017; certified nursing assistant from October 2017 to December 2018; and Emergency Medical Technician (EMT) from April 2019 to April 2020. See September 2020 Rehabilitation Needs Inventory and March 2020 private vocational opinion by Dr. F.J.S. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his service-connected lumbar spine and left leg sciatica disabilities. At a July 2011 VA examination the Veteran reported being able to walk three miles in 75 minutes, but that his pain was exacerbated by physical activity and stress. The examiner opined that his back condition affected his occupation in that the Veteran is not able to sit for prolonged periods, has trouble bending over, and cannot lift or carry heavy objects. In 2014, July 2018 and October 2019, the Veteran suffered skydiving/base jumping accidents. As above, the Veteran was a part-time paraglider test pilot from April to June 2015. These activities suggest the Veteran's back impairment does not significantly limit him, as paragliding, skydiving, and base jumping require substantial physical exertion, and the Veteran engaged in these activities multiple times over the appeal period. At a July 2020 VA examination, the examiner opined that the Veteran's back condition limits the Veteran from lifting more than 35 pounds but is not otherwise limiting. The examiner cited to the Veteran's ability to skydive as support for this opinion. The Veteran sought Vocational Rehabilitation and Educational (VR&E) services from the VA in September 2020. During the evaluations, he reported that his back limited his ability to work in that he can sit for several hours only if he can move around, he can lift and carry up to 100 pounds, and he cannot perform activities that require sustained bending. See December 2020 Complete Initial Vocational Evaluation. The Veteran was found to be precluded from jobs that require lifting and prolonged sitting due to his service-connected back and sciatica conditions. See September 2020 VR&E Counseling Report. At the July 2021 VA examination the Veteran reported difficulty walking for extended periods or running due to his back condition. The Board finds the July 2020 VA examination and medical opinion limiting the Veteran from lifting more than 35 pounds due to his back condition to be entitled to great probative weight because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board also finds persuasive the Veteran's reports that he cannot perform activities that require sustained bending and can only sit for extended periods if he can move freely. Thus, the Board finds the Veteran's service-connected back condition and left leg sciatica limit his ability to bend, sit for extended periods, and lift greater than 35 pounds frequently. The Board also finds that the Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his service-connected panic disorder with agoraphobia. In a June 2011 psychiatric VA examination, the Veteran reported panic attacks in the context of unexpected situations, including meeting people or being in crowds. The examiner reported a mild memory impairment and near-continuous panic attacks that do not affect the ability to function independently. Mental status examination was normal and indicated normal recent memory. The examiner indicated that his psychiatric symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the Veteran is functioning satisfactorily with routine behavior, self-care and normal conversation. In April 2017 a psychiatric VA examination indicated the same level of occupational and social impairment as the June 2011 examiner. The Veteran reported only taking propranolol on an as needed basis for anxiety triggering situations. The Veteran reported panic attacks when he enters a confined or crowded area. A March 2020 private vocational opinion by Dr. F.J.S. indicated that the Veteran is precluded from engaging in any substantial or gainful employment, to include sedentary work activity since on or before October 3, 2011. The rationale was that the Veteran's psychiatric impairment results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to near-continuous panic or depression affecting the ability to function independently; spatial disorientation; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. Additionally, historically he has been unable to maintain a job enough to support himself and was at the time barely passing college prerequisite classes. At the time, the Veteran was enrolled in 12 credits of online courses. Thus, while he wishes to pursue further education, it is unclear whether he will be able to do so. The Veteran viewed himself as possibly working from home and reported that when he worked from October 2015 to June 2016 for a customer service technology company, he was allowed to work from home due to severe panic attacks. See also September 2020 Rehabilitation Needs Inventory. In a December 2020 Vocational Evaluation, the Veteran reported that due to his psychiatric condition he must feel like he is in control and must have a good team to work with. In March 2021 his eligibility for the program was terminated for lack of participation as he was attending medical school in Poland. Considering the record as a whole, the Board finds the March 2020 private opinion by Dr. F.J.S. to be inconsistent with the preponderance of the evidence, and therefore affords the opinion little probative weight. Nieves-Rodriguez, 22 Vet. App. At 302-04; Prejean, 13 Vet. App. At 448-9; see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). While the physician reviewed the claims file and post-service treatment records, after this report the Veteran sought out Vocational Rehabilitation and Education services from the VA, as detailed above, which provides additional details regarding the Veteran's functional limitations. The September 2020 VR&E Rehabilitation Needs Inventory revealed that the Veteran was unemployed from approximately July 2015 to September 2015, July 2017 to September 2017, January 2019 to March 2019, and May 2020 to the present. However, the Veteran was attending school during those periods of unemployment. See September 2020 VR&E Counseling Report. Additionally, the March 2020 private opinion report indicates that the Veteran reported that he was fired from his job as a bookkeeper due to lack of performance, which he related at least partially to alcohol and substance abuse. Further, the Veteran had trouble finding a job due to prior legal problems and lack of a driver's license. Most recently, the Veteran enrolled in a six-year medical school program in Poland, and the evidence shows he was enrolled in that program as recently as March 2021. Given the forgoing, the Board finds the Veteran has difficulty interacting with others and adjusting to changes in routine due to his service-connected panic disorder. However, the Veteran's service-connected disabilities do not preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The Board has considered whether the fact that the Veteran has changed his occupation and been unemployed several times over the appeal period indicates that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. However, the record shows that the Veteran was enrolled in full-time school during his periods of unemployment, and his job changes were the result of him obtaining additional certification is a new field, or other factors unrelated to his service-connected disabilities. Moreover, during the appeal period, the Veteran was able to obtain certificates in nursing and as an Emergency Medical Technician and is presently enrolled in medical school, suggesting his academic performance has been adequate. Accordingly, the Board finds that the evidence of record does not indicate that a TDIU is warranted. In sum, the record does not reflect any factors which place this Veteran's case in a different category than other veterans with equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361 (1993). (Continued on next page) Considering the VA examinations of record and the discussion of symptomology contained therein, VA treatment records, and evidence of the Veteran's current enrollment in medical school, the Board finds the evidence weighs against a finding that the service-connected disabilities prevent substantially gainful employment. Thus, the claim must be denied. 38 C.F.R. § 3.321; 3.40; 4.15; 4.16; 4.18; 4.19. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.