Citation Nr: 21063245 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-41 298 DATE: October 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT During the appeal the Veteran had the following service-connected disabilities: posttraumatic stress disorder (PTSD) rated as 70 percent disabling, bilateral hearing loss rated as 40 percent disabling, tension headaches rated as 30 percent disabling and tinnitus rated as 10 percent disabling; the Veteran had a combined overall disability rating of 90 percent from March 24, 2015 forward. The Veteran's service-connected disabilities are not shown to render him unable to secure and follow all forms of sustainably gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; (2012) 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1967 to August 1970 and in the U.S. Navy from December 1976 to December 1978 with service in the Republic of Vietnam. He was awarded the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's VA Form 9, Substantive Appeal to the Board of Veterans' Appeal he requested a Board hearing, and the Veteran was scheduled for a July 2021 Board virtual hearing but failed to appear. As the Veteran has not provided good cause for the failure to appear, the Board finds the Veteran's hearing request has been withdrawn. TDIU The Veteran contends that he has been unable to secure and maintain employment due to his service-connected disabilities. Specifically, the Veteran contends that he is unable to work due to his service-connected PTSD and that his condition has worsened over time with an increase of his PTSD symptoms. The Veteran contends that as a result of his service-connected disabilities and associated symptomology, he has been unable to secure or maintain substantially gainful employment during the period on appeal. The Veteran submitted a claim for TDIU in August 2015. 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). When two or more disabilities are treated as one, the ratings for those disabilities are combined using the combined ratings table. 38 C.F.R. § 4.25. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The phrase substantially gainful employment has two components: an economic one and a noneconomic one. Ray v. Wilkie, 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. During the appeal the Veteran met the threshold criteria for TDIU. See 38 C.F.R. § 4.16. The Veteran was service connected for PTSD rated as 70 percent disabling, bilateral hearing loss rated as 40 percent disabling, tension headaches rated as 30 percent disabling and tinnitus rated as 10 percent disabling from March 24, 2015 forward; with one disability rated at 60 percent or more. The Veteran served on active duty in the U.S. Army from August 1967 to August 1970 as a heavy vehicle operator and in the U.S. Navy from December 1976 to December 1978 as a junior aviation sailor. The Veteran earned his general educational development (GED) certificate, and post-service the Veteran reported working in various fields including in welding, at an oil refinery, and working on boats in various positions. The Veteran most recently worked for the United States Postal Service as a mail carrier for the last 30 years, retiring from this position. The Veteran contends that he last worked in February 2013 and that he has been unable to work due to his service-connected PTSD. Specifically, the Veteran reports that his ongoing symptoms of PTSD including insomnia make him unable to work. The Veteran was afforded a VA mental health initial evaluation in March 2015. The examiner noted a number of PTSD symptoms including trouble sleeping, night sweats, reoccurring nightmares and mood swings. The examiner noted that the Veteran's PTSD symptoms have interfered somewhat with his occupational, and interpersonal functioning. However, such did not keep him from working 30 years at the post office. A May 2015 VA headaches examination has been associated with the claims file. The examiner noted tension headaches. The Veteran reported headache pain that worsens with physical activity, is localized on one side of the head and he has pain on both sides of the head. The examiner noted that the Veteran does not have characteristic prostrating attacks of migraine headache pain. The examiner noted that the Veteran's headache condition impacts his ability to work in that he has no ability to work when he is experiencing high intensity headaches. Also, the Veteran was afforded a VA PTSD examination in May 2015. The examiner noted PTSD with mild depressive symptoms, mood swings and insomnia. The examiner noted that the Veteran's PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran is capable of managing his financial affairs. In addition, the Veteran was afforded a VA hearing loss and tinnitus examination in July 2015. The examiner noted bilateral sensorineural hearing loss. The examiner noted that the Veteran's hearing loss impacts his ordinary conditions of daily life, including his ability to work in that the Veteran finds it difficult to understand speech when there is competing noise, or if he does not see the speakers face or is close to the speaking source, if the lighting is not good or if he is at a distance. The Veteran also reports recurrent tinnitus. The examiner noted that the Veteran's tinnitus impacts his ordinary conditions of daily life including his ability to work in that he reports constant ringing in his ears. The Veteran was afforded a VA PTSD Disability Benefits Questionnaire (DBQ) Review in November 2015. The examiner noted that the Veteran's PTSD results in occupational and social impairment with reduced reliability and productivity. The Veteran reported volunteering through his church running the ministry outreach program. He also reports overseeing recycling for the church and is part of the church barbecue team. The Veteran reports retiring from U.S. Postal Service in 2013. He reports he was irritable with his supervisor and had conflicts about following standard operating procedures. The Veteran reports that these frustrations led to his decision to retire. The Veteran reports that his hearing problems added to problems with attention and concentration, and he had trouble following and remembering conversations at times at work. The examiner noted that the Veteran is capable of managing his financial affairs. Then, the Veteran was afforded a VA PTSD examination in May 2017. The examiner noted that the Veteran's PTSD has occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routines, behaviors, self-care and conversation. The Veteran reported he is friends with his neighbors and is regularly involved with activities at his local church. The Veteran enjoys volunteering at his local church school in the mornings watching the parking lot and greeting families. The Veteran reports recycling and fixing electronics as a hobby. The Veteran reports that his hearing loss at times makes it hard for him to understand others and requires him to frequently ask for repetition. The examiner noted that the Veteran is capable of managing his financial affairs. VA treatment records have been associated with the claims file. Treatment records note ongoing mental health treatment for the Veteran's PTSD. Treatment records note that the Veteran has reported a history of working as a welder and doing deep water salvage and underwater welding, and working in a refinery, and on boats in various capacities. Further, the Veteran reports undergoing training and becoming a minster, but that he does not preach. Additionally, VA treatment records note the Veteran regularly attends church and is very involved as a volunteer. The Veteran is a regular volunteer at his church assisting in running the ministry outreach program and helping to direct traffic and greet families at the church school. As a hobby the Veteran reports repairing and recycling electronics. Additionally, VA treatment records note the Veteran has been working in a scrap yard during the appeal. The Veteran submitted VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability in August 2015. The Veteran contends that his service-connected PTSD with insomnia prevents him from securing or following any substantially gainful occupation. The Veteran reports that he last worked full time in February 2013. The Veteran reported working from August 1983 to February 2013 for the U.S. Post Office as a mail carrier. The Veteran reports that he left his job due to his service-connected disability. The Veteran reported that he has not tried to obtain employment since he became too disabled to work. The Veteran reported completing high school and attending welding school from 1971 to 1972. The Board has considered the Veteran's and his representative contentions specifically his August 2021 correspondence however, VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran's representative is not competent to provide a medical opinion. Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. Based on the weight of the competent evidence of record, the Veteran's service-connected disabilities do not render him unable to secure and follow substantially gainful employment at any time during the period on appeal. The Veteran contends that a TDIU is warranted due to his service-connected PTSD. The Veteran contends that he is unable to work due to his PTSD symptomology. The Veteran's lay statements and the medical opinions of record note that the Veteran's PTSD has resulted in occupational and social impairment impacting his work but has not been indicative of total occupational impairment. The VA evaluation in March 2015 noted that the Veteran's PTSD symptoms have interfered somewhat with his occupational functioning, however such did not keep the Veteran from working for 30 years in his position at the post office. VA examinations for the Veteran's PTSD consistently noted that he is capable of maintaining his financial affairs. At worst the VA examinations noted occupational and social impairment with deficiencies in most areas at the May 2015 VA examination. As to the Veteran's other service-connected disabilities, the May 2015 VA headaches examination noted that the Veteran's headaches impact his ability to work when he has high intensity headaches, he would be unable to work. Then the July 2015 VA examiner noted that the Veteran's hearing loss impacts his ordinary conditions of daily life in that he has difficulty understanding speech when there is competing noise, or he cannot see the speakers face. The Board finds the VA opinions are entitled to probative weight. The Board has considered the Veteran's statements regarding his ongoing symptoms and impact these have on his unemployability. In particular the Veteran contends that he is unable to work due to his PTSD and insomnia symptoms. The Veteran has noted difficulty obtaining employment and was unable to obtain employment, stopping working due to his PTSD symptomology. The Board acknowledges that the Veteran is competent to report his symptoms and he is credible in this regard. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran's education and employment background the Board finds that the Veteran's service-connected PTSD, hearing loss and tension headaches do not render him unable to secure and maintain substantially gainful employment. Treatment records consistently note the Veteran attends his VA appointments, maintains his appointments and communicates with VA treatment provider via phone and manages his necessary medication renewals and follow ups. In addition, the Veteran consistently completes activities of daily living, and lives in his own home. The Veteran regularly attends church and is actively involved and volunteers at his church which demonstrates satisfactory social activity not impaired by PTSD. The Veteran reports running his churches volunteer ministry outreach program, and volunteering to assist with traffic control during the church school drop off and greeting of families. The Veteran reports being actively involved in and enjoying his role in his church community. Additionally, the Veteran reports repairing and recycling electronics for friends and members of his church. The Board does not dispute that the Veteran requires accommodations related to his service-connected disabilities including breaks as needed, time off as needed due to headaches and flexible work arrangements, repeating of items as needed and further additional as needed accommodations. The Veteran's most recent employer was the U.S. Postal Service the Veteran reported retiring after 30 years of service. He reported at times difficulty getting along with his supervisors and having a hard time focusing and concentrating at times. The Veteran was employed by the U.S. Postal Service and this employment would allow for reasonable accommodations and the use of accumulated sick and annual leave, a benefit of employment afforded to all employees. The Americans with Disabilities Act (ADA) prohibits discrimination and requires employers to provide accommodations for a person with disabilities including PTSD, hearing loss and headaches. See https://www.ada.gov/servicemembers_adainfo.html (last visited September 15, 2021). The use of accommodations such as extra time, breaks, rest as needing, and repeating of directions or items as needed are not unreasonable in the workplace. In light of the Veteran's education, special training and previous work experience the Board finds that the evidence of record is against finding that the Veteran is unable to obtain and maintain gainful employment due to his service-connected disabilities. The Veteran reported last working in February 2013, when he retired after 30 years of service. However, treatment records note the Veteran has reported volunteering for his church in various capacities and repairing and recycling electronics for friends and neighbors since his retirement. Prior to his retirement from the post office the Veteran had extensive experience working as a mail carrier for 30 years. He also has skills as a welder and equipment operator. There is insufficient evidence that he is unable to operate a personal or commercial vehicle. He has reported working at a scrap yard in 2017 and did not indicate that it was part time or even if so, that he was unable to perform those duties full time. While the Board acknowledges that the Veteran's service-connected disabilities have had some effect on his occupational functioning, the preponderance of the evidence does not support his contentions that his service-connected disabilities have precluded participation in all forms of substantially gainful employment. On review, and in light of the above objective medical evidence the Board acknowledges that the Veteran's service-connected disabilities have impacted his ability to work. However, the assigned evaluations for his service-connected PTSD, hearing loss and tension headaches are intended to reflect such occupational impairments. See 38 C.F.R. § 4.10. In sum, the Board finds that the Veteran's service-connected PTSD, bilateral hearing loss and tension headaches do not preclude all forms of substantially gainful employment. Therefore, a grant of TDIU is not warranted, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian. 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.