Citation Nr: 21062890 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-15 310 DATE: October 12, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2017 by a Department of Veterans Affairs (VA) Regional Office. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to a TDIU. 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). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant 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. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The instant appeal stems from the Veteran's original claim for a TDIU, i.e., Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940), which was received on October 7, 2016. For the entire appeal period, he meets the schedular threshold for consideration of a TDIU based on the 70 percent rating assigned for his service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (psychiatric disability) and the 20 percent rating assigned for his service-connected left shoulder impingement with history of fracture, left humerus, remote (left shoulder disability), which results in a combined schedular rating of 80 percent. At the July 2021 Board hearing, the Veteran primarily asserted that his service-connected psychiatric disability prevented him from securing and following a substantially gainful occupation. Specifically, he reported that his symptoms, to include anxiety, irritability, difficulty with concentration, and hypervigilance, would result in difficulty meeting production requirements, staying on a regimented schedule, and engaging with others. Per the record, the Veteran's highest level of education is one year of college, and his employment history involved working as a mailman for the Post Office for 31 years and working in the mailroom for an insurance company for five years thereafter. According to a November 2010 examination report, the Veteran retired from the postal service in 2003, but went back to work full-time in September 2005 and his TDIU application reflects that he last worked full-time in 2011. Although the Veteran reported some volunteer work following his retirement, the record does not show he maintained even marginal employment during the appeal period. Thus, the crux of the issue herein is whether the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation consistent with his education and work history at any point pertinent to the appeal period stemming from his October 7, 2016, claim. Although dated prior to the appeal period, the Board finds the November 2010 VA examination report provides relevant information pertinent to the issue on appeal. In particular, such report shows the Veteran returned to work in 2005 as he felt full-time work was "good" for him and he had not lost any work time in the past year due to his mental health condition. Further, following VA psychological examination in August 2016, the VA examiner found the Veteran's symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation resulted in occupational and social impairment with only reduced reliability and productivity. The Veteran believed that he was depressed, in that he was never quite happy, could not do anything right, and could not seem to say the right things. He argued over slight issues, felt a great sense of grumpiness, and had limited social interest. Although physicians had prescribed medication for mood, anxiety, and sleep, the Veteran had discontinued them after he did not like their effects. The VA examiner noted the Veteran's work history with the Post Office and Blue Cross Blue Shield and stated that "when work was no longer fun, he retired for the second time." In January 2017, a VA psychologist provided an addendum addressing the Veteran's functional capabilities. In this regard, she reviewed several notes from November 2016 and January 2017 and found such were consistent with the Veteran being able to communicate effectively with others. In addition, it appeared the Veteran had little trouble with comprehension of information, retention of simple information, and the ability to hold a conversation with others without difficulty. The VA psychologist also determined the Veteran appeared capable of understanding information, and demonstrated a consistency in attendance with appointments and ability to community with others. In this regard, she found that, although the Veteran might struggle with increased anxiety if placed in group situations, he appeared able to maintain daily activities without difficulty. He also showed no trouble with appearance, orientation, speech, thought content, or motivation. The Veteran appeared capable of being aware of hazardous situations and taking appropriate action, and he was able to ask questions when needing clarification and request assistance when needed. The Veteran reported the ability to attend meetings, run errands, and function in day-to-day living. The VA psychologist found that, although he might struggle in connecting with others and experience discomfort and difficulty with criticism, he appeared capable of adjusting to changes without difficulty. On VA examination in March 2017, the Veteran reported an increase in depressive symptoms. However, the VA examiner, a psychologist, found that his psychiatric symptoms of depressed mood, anxiety, sleep impairment, short-term memory problems, and a history of problems with anger management resulted in occupational and social impairment with only reduced reliability and productivity. A February 2018 VA mental health physician note shows the Veteran reported fragile mood, low energy, and low motivation. He was very anxious and unable to relax or feel calm around other people. Although he continued to volunteer two times per week, he frequently felt overwhelmed and anxious for no reason and either had to leave or did not attend at all. The VA physician noted the Veteran last worked in 2012 and had retired when eligible "due to feeling overly stressed at work" with the hope that retirement would alleviate some of his distress. The Veteran's symptoms included insomnia, nightmares, excessive reactivity, hypervigilance around people, being easily angered, difficulty in feeling joy or calm, and being easily overwhelmed around noise or activities. The VA physician found the Veteran remained highly symptomatic with impairment "in essentially all areas of functioning socially, family, occupationally and interpersonally" and was struggling to maintain marriage and volunteer activities. The Veteran reportedly spoke about possibly returning to work, but did not feel that he could tolerate, or be successful in, a work position given the current level of his PTSD symptoms and intolerance to current stressors. At the July 2021 Board hearing, the Veteran reported that he left his employment with Blue Cross Blue Shield because he had been unable to keep up when the policies, supervisors, and methods changed. He stated that, although it was not overwhelming, it was frustrating trying to do things in a completely different way thus, he voluntarily resigned when he felt himself becoming a little irritable and feeling as though the work was not a good thing for him anymore. He testified that he had not sought further employment because he did not feel he would be able to handle the regimented schedule. He also described a "whirling" in his head that distracted him, and difficulty with noise and quick movements surrounding him. However, he felt that his symptoms were "not as complex" since he left employment as he was no longer expected to do something at a certain time and in a certain way for a certain person. He reported that he was able to volunteer because he was comfortable in the environment and could set his own hours and days. In addition, he reported continued therapy with VA helped him with his symptomatology and denied any increase in the severity of such as a result. With respect to his left shoulder disability, the Veteran denied any impact on his occupational functioning other than becoming sore with physical acts. Here, the Board finds the probative evidence described above does not show the Veteran's service-connected disabilities, singularly or jointly, were of sufficient severity so as to render him incapable of performing the physical and mental acts required by employment consistent with his education and work history at any point during the appeal period. In this regard, although some difficulties were noted, to specifically include the Veteran's inability to deal with stress and handle crowds, none of the VA clinicians who examined the Veteran found such disabilities precluded employment. In this case, the Board affords significant probative weight to the VA examiners' opinions as such were based on examinations of the Veteran and a review of the record, to include his medical history, work history, and lay statements. Moreover, while the testimony provided by the Veteran indicates an aversion to a regimented schedule and potential difficulty keeping up with complex tasks in a stressful environment, the Board finds such does not reflect a severity of impairment that rises to the level of precluding all employment consistent with the Veteran's work history and education. In fact, the Veteran indicated that he was capable of performing his previous work as a mailman given the flexibility provided, and the record does not show symptomatology that would otherwise prevent such employment during the appeal period. Therefore, based on the foregoing, the Board finds the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a TDIU, the benefit of the doubt doctrine is not applicable and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.