Citation Nr: 21063989 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-43 272 DATE: October 18, 2021 ORDER Entitlement for a total disability rating for compensation based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against finding that service-connected disabilities preclude the Veteran from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019 the Board remanded this issue to obtain relevant medical treatment records. The Board finds VA substantially complied with the remand instructions and the issue is properly before the Board for adjudication. 1. TDIU A TDIU rating may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 C.F.R. § 4.16 (a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a veteran does not meet the aforementioned criteria, a total disability may still be assigned, but on a different basis. 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. 38 C.F.R. § 4.16 (b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16 (a). Id. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a veteran, as a result of his or her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his or her educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating 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 ment acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During the appeal period the Veteran has been service connected for a psychiatric disorder at 70 percent disabling from October 15, 2014 and for tinnitus at 10 percent disabling from October 15, 2014. The Veteran has a combined evaluation of 70 percent disabling from October 15, 2014. As such, the Veteran meets the schedular criteria for TDIU. An October 2014 VA treatment record reported that the Veteran was retired and that he had worked in construction as well as the United States Post Office. A March 2015 VA treatment record reported that the Veteran had not been able to find part time employment, but that he continued to apply and interview for jobs. He furthered that he kept busy by making a shadow box. The Veteran's March 2015 VA audiological examination reported that there was no functional impact due to the Veteran's tinnitus. An April 2015 VA treatment record reported that the Veteran got a part-time job at Home Depot and that he was very pleased and felt better. He reported that he enjoyed being productive and for getting out of the house. In the June 2015 VA psychiatric examination, the examiner noted that the Veteran reported increased tension and conflict with his wife and difficulty establishing and maintaining effective social relationships due to disturbances of motivation and mood, persistent dysthymic mood with periods of more acute depression resulting in neglect of activities of daily living and increased isolative behaviors, irritability with increased verbal altercations resulting in avoidance, chronic sleep impairment from recurrent and distressing dreams, and periods of anxiety. The Veteran reported that post military service he initially worked in construction, then with the New York Police Department for 11 years, and then the United States Postal Service where he accepted an early retirement about five years ago after 20 years of employment. The Veteran furthered that due to the progression of his psychiatric symptoms following his retirement, he recently secured employment as a temporary employee working less than part time at a local Home Depot. The Veteran expressed that this helped with some of his symptoms since he had something to do, and it kept his mind off of things. He did report some impairment with regard to occupational functioning due to disturbances of motivation and mood, persistent dysthymic mood with periods of more acute depression resulting in neglect of activities of daily living and increased isolative behaviors, difficulty establishing or maintaining work-based relationships, irritability resulting in avoidance, chronic sleep impairment from recurrent and distressing dreams, and periods of anxiety. The examiner indicated that the Veteran exhibited symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and neglect of personal appearance and hygiene. The examiner opined that eh 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 June 2015, the Veteran submitted an Application for Increased Compensation Based on Unemployability and reported that his PTSD and tinnitus prevented him from securing or following any substantially gainful occupation. He reported that on July 1, 2011 he became too disabled to work and it affected his full-time employment. He listed that he was a full-time supervisor at the United States Postal Service from October 1992 to July 2011. He also listed that he worked at Home Depot as an associate for 25 hours per week from April 2015 to June 2015. He marked that he left his las job because of his disability and that he tried to obtain employment since he became too disabled to work. The form indicated that the Veteran completed four years of college, but that he did not have any other education. The Veteran reported that he needed to work at Home Depot to support his family, but his disability was too debilitated to continue working and was forced to leave the position. In July 2015, the Veteran submitted employment information from Home Depot where it reported that he resigned from the job and that he only worked for two months from April 2015 to June 2015. In the July 2015 VA audiological examination, the Veteran reported that his tinnitus was annoying and disruptive since it was intermittent and recurrent and louder at sometimes than others. He furthered that the tinnitus did not prevent him from doing his jobs throughout the years since he would work through it even though it was annoying and distracting. He explained that the tinnitus did not physically preclude him from working. He listed that he worked as a physical laborer, a New York police officer for over 11 years, and a postal worker for about 20 years. In the July 2015 VA psychiatric examination, the examiner opined 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. The examiner indicated that the Veteran reported that he worked for the New York Police Department for 11 years, as a mail carrier at the United States Postal Service for 10 years, and as a supervisor at the USPS for another 10 years. He furthered that he retired in 2011 and that he did not have any history of occupational problems during his years of full-time work related to his current diagnosis. The Veteran explained that he quit the Home Depot job and when asked about the impact of his psychiatric disorder on this job, he stated that it did not interfere at all in terms of either performance or absenteeism or tardiness. He reported that during his brief period at Home Depot he never missed a day of work and received two performance awards. He stated that he decided to quit the job regardless of this because he felt he was experiencing increased symptoms. The examiner noted that while the Veteran reported that his symptoms had increased while he began the part-time job, during the same time period, the Veteran had decided to taper off his anti-depressants. The examiner opined that it was as likely as not that any change in symptoms was due to discontinuation of medication versus taking on a part-time job. The examiner noted that the Veteran exhibited symptoms of depressed mood and anxiety. In September 2015, the Veteran submitted more employment information from Home Depot. It stated that the Veteran worked as a seasonal sales associate from April 2015 to June 2015 and listed that the Veteran resigned and simply noted PTSD. When asked if any concessions were made to the Veteran due to age or disability, the answer was not applicable. In October 2015, the Veteran submitted employment information from USPS where it was listed that the Veteran was a customer service supervisor and that he retired. When asked if any concessions were made to the Veteran due to age or disability the answer was "unknown." In November 2015, the Veteran submitted a statement by his therapist. The therapist reported that the Veteran was experiencing symptoms of increased depression, survivors' guilt, increased anxiety, felling overwhelmed, low patience, poor sleep, nightmares, and easily angered. The therapist furthered that the Veteran reported having trouble remaining employed due to the symptoms listed above. The therapist recommended that it would be in the best interest of the Veteran to focus on his mental health and not be employed. In November 2015, the Veteran's wife submitted a statement reported that the Veteran attempted to go back to work to help with their finances but would come home so agitated and upset that he had no choice but to leave after shortly starting the job. In the November 2015 Notice of Disagreement (NOD) the Veteran asserted that he had a history of belligerence at USPS and that he was written up several times. He furthered that his psychiatric symptoms were worsening and that he attempted to work but that he had issues with impatience towards staff and customers. In November 2015, the Veteran reported that he resigned from Home Depot because he felt increased anxiety and was getting easily overwhelmed and agitated. VA treatment records from 2016 to 2018 reflected that volunteering improved the Veteran's mood, that he was the president of the veterans organization he was a part of, and that he provided leadership and patience towards the organization despite his anxieties since he had empathy for the frailties of others. He also reported that he found the environment at Home Depot to be too triggering. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran's psychiatric or audiological disabilities cause the Veteran to be unable to secure or follow substantially gainful employment. The Board acknowledges that the psychiatric symptoms impacted the Veteran's day-to-day life and had some impact on his employability, as reported by the Veteran and documented by examiners. However, the Board finds the psychiatric disability would not impact the Veteran's ability to obtain and maintain substantially gainful employment. The symptomatology for the psychiatric disability is fully addressed above, and the preponderance of the evidence is against finding that these symptoms would prevent the Veteran from securing or following substantially gainful employment during the period on appeal. Most importantly, since retiring and reporting that his psychiatric symptoms had some impact on his employability, the Veteran has obtained and maintained volunteer positions at a veterans organization and was even president of the organization. The Board acknowledges that this is not paid or full-time work, but it does show that the Veteran is able to complete tasks consistent with those that would be required for employment in an office setting, and the record does not document that the Veteran would be limited in his ability to continue to do those tasks on a full-time basis or in an employment setting. The Veteran retired after working for the same company for about 20 years. The Board acknowledges that the Veteran reported that he retired, at least in part, due to his psychiatric symptoms, and prior to his retirement he experienced psychiatric symptoms; however, this is before the appeal period and cannot be used to determine whether the Veteran is employable during the appeal period. During the appeal period, the Veteran obtained part-time work at Home Depot and reported how he felt good about working since it helped him take his mind off of things and made him feel that he was productive. Additionally, even though the Veteran reported that he resigned the position due to his psychiatric symptoms, the Veteran reported how he did not miss a day of work and that he received two performance awards. Additionally, the July 2015 VA examiner noted that the Veteran was discontinuing his psychiatric medications at the same time as he started his job at Home Depot and that it was as likely as not that any change in symptoms was due to discontinuation of medication versus taking on a part-time job. While the Veteran's therapist opined that it was important for the Veteran to focus on his mental health and that he could not focus on employment, the therapist did not take into consideration that the Veteran had stopped taking his medication and that he was volunteering at a veterans organization. The Board finds that the opinion of the therapist has little probative weight since the therapist does not take into consideration key aspects of the Veteran's psychiatric history and his social activities. Additionally, the rating criteria for psychiatric disabilities are such that they consider the totality of psychiatric symptomatology. The Board's finding that the psychiatric symptoms are properly assessed by a 70 percent rating is also a finding at the totality of the symptomatology causes, at most, occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The fact that the Veteran was able to obtain two performance awards during his time at Home Depot and that he served as president of the veterans organization he was a part of is indicative of the Veteran's continued mental ability to be reliable in a work setting. The Board finds that such is evidence of the Veteran having the ability to perform the mental requirements of substantially gainful employment. See Ray, 31 Vet. App. at 73. Additionally, the Veteran's service-connected psychiatric disability does not preclude him from performing labor, and he has not alleged that he cannot perform labor. Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran was capable of work that would result in income at the level of substantially gainful employment. As the preponderance of the evidence is against a finding that the Veteran would be precluded from securing or following a substantially gainful employment due to the service-connected psychiatric disability or the Veteran's tinnitus, entitlement to TDIU is not warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.