Citation Nr: 21067354 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-08 956A DATE: November 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's service-connected PTSD is ratable at 60 percent or more; however, his PTSD has not prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the United States Coast Guard from December 1968 to December 1972, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in August 2020, at which time the issue currently on appeal was denied. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted a Joint Motion of the parties, vacated the Board's decision on the matter, and remanded the case to the Board for action consistent with the Joint Motion. The case has since been returned to the Board for appellate review. The Veteran has reported that his service-connected PTSD prevents him from securing or following a substantially gainful occupation. Following review of the record, the Veteran's claim for a TDIU must be denied. 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. 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). Turning to the evidence, the Veteran's PTSDhis only service-connected disabilityis rated as 70 percent disabling. As he has one disability ratable at 60 percent or more, entitlement to a TDIU may be considered on a schedular basis. In the September 2011 application submitted in connection with his claims for service connection for PTSD and ischemic heart disease, the Veteran reported that the PTSD symptoms he was experiencing had been "going on since I left the service, I tried to live a normal life for a long time, but I am tired of living a lie." He stated he was unable to work due to his PTSD and heart disease. He explained that the only occupation he knew was truck driving, which he chose because he could be alone all the time. The Veteran stated that he had to sell his truck when he was no longer able to work. In the July 2015 VA Form 21-8940 the Veteran submitted in connection with this claim, he reported that he became too disabled to work in 2008, due to PTSD and ischemic heart disease. He reported that he had a high school education and last worked buying, selling, and trading land from 2006 to 2008. From 1996 to 2006, he worked as a self-employed truck driver, earning $90,000 to $100,000 in 2006. The Veteran indicated that he left his last job due to his disability. A February 2009 private cardiology treatment note reflects that the Veteran was experiencing generalized fatigue and occasional dyspnea. The clinician noted that he and the Veteran had a 30-minute discussion regarding valve replacement surgery, as the Veteran's severe aortic stenosis and symptoms of fatigue were suggestive of congestive heart failure. The clinician noted that the Veteran continued to decline surgical intervention. Subsequent private treatment records reflect that the Veteran underwent aortic valve replacement surgery in August 2009. The records also note a prior history of stroke. In February 2012, a VA examiner noted that the Veteran had difficulty functioning at work due to his PTSD. Prior to service, the Veteran reported no problems with his supervisors and coworkers while working at a roofing company. He stated that he did not isolate from others at that time. Instead, his dislike of people began after his tour in the Republic of Vietnam. The Veteran endorsed chronic sleep impairment, difficulty concentrating, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and difficulty in adapting to stressful circumstances. The Veteran noted that he experienced a stroke approximately three or four years prior and explained that he was concerned that getting stressed would cause another stroke. The examiner determined that the Veteran had occupational and social impairment with deficiencies in most areas. At his September 2015 VA examination, the Veteran reported that he had worked as a truck driver for over 25 years. He stated that he retired due to his cardiovascular issues. He endorsed chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. He described doing well in jobs where he was on his own and had little social interaction. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In March 2020, a VA examiner determined that the Veteran's cognitive functioning was average, and his abstract reasoning appeared fair. Further, the current mental status evaluation did not reveal any looseness of associations, delusional thinking, significant paranoia, hallucinations, numbness in his extremities, memory impairment, or disorientation. The examiner noted that the Veteran wore glasses and reported having macular degeneration and being legally blind. The Veteran described himself as a retired truck driver and endorsed chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Based on the evidence of record, the Board finds that the Veteran's service-connected PTSD, alone, does not render him unable to secure or follow a substantially gainful occupation. The record does not support the conclusion that the Veteran's PTSD symptoms, which he has described as being present since service, would prevent him from working in his prior occupation as a truck driver. The Board notes that the Veteran's retirement was, by his own report, due at least in part to functional limitations caused by his nonservice-connected heart disability. In fact, at his September 2015 VA examination, the Veteran stated that he retired because of his heart disability. Although the Veteran has described losing the ability to establish and maintain effective relationships since service, he managed to transition into jobs that accommodated his PTSD symptoms post-service. In this regard, he maintained employment as a truck driver for many years and subsequently transitioned to buying and selling land. Moreover, although VA examiners have acknowledged that the Veteran's PTSD has occupational effects, the Veteran has reported that he did well in jobs, such as driving a truck, where he was on his own and had little social interaction. The Board acknowledges that several VA examiners have determined during the course of this claim that the Veteran's current nonservice-connected heart conditions have no functional impacts. However, other evidence of record, to include the Veteran's own descriptions of his reasons for discontinuing work and the medical evidence of record closer in time to his decision to do so suggests his ongoing heart conditions played a role in his decision-making at that time. More to the point, findings that a nonservice-connected heart condition is not currently having a functional impact on the Veteran are responsive to a separate question from the one at issue here; namely, whether the functional impacts of the Veteran's only service-connected disability, PTSD, would preclude him from securing and follow a substantially gainful occupation during the claim period, to include in his prior profession of truck driver. In short, the Board cannot conclude that the available evidence is approximately balanced with respect to the question of whether the Veteran's PTSD, alone, prevents him from securing or following a substantially gainful occupation. The evidence, including the Veteran's own descriptions of his past career as a truck driver and the onset and continuation of his PTSD symptoms post-service, preponderates against the claim. Accordingly, entitlement to a TDIU is not warranted, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.