Citation Nr: 21070353 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-07 939 DATE: November 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The competent and persuasive evidence does not establish that the Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU 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 from October 1983 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board remanded the issue on appeal for further development. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a TDIU is denied. The Veteran asserts in a June 2011 lay statement that he is unable to maintain gainful employment due to his psychiatric disorder. In January 2019, VA received the Veteran's VA Form 21-8940. In the form, the Veteran asserts that all his service-connected disabilities prevent him from securing or following any substantially gainful employment. A TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 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. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. 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. Id. The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran's service-connected disabilities are an acquired psychiatric disorder (rated at 70 percent from June 8, 2011 and 100 percent from January 1, 2017); headaches associated with tinnitus (rated at 50 percent from December 9, 2013); bilateral hearing loss (rated 20 percent from June 8, 2011); and tinnitus (rated 10 percent from June 8, 2011). The Veteran's combined schedular rating was 80 percent from June 8, 2011; 90 percent from December 9, 2013; and 100 percent from January 1, 2017; thus, he meets the schedular criteria from June 8, 2011. Beginning January 1, 2017, the Veteran was in receipt of a 100 percent total schedular rating for his acquired psychiatric disorder. The Board notes that the award of a 100 percent disability rating does not necessarily render moot a claim of entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). VA must consider a TDIU claim despite the existence of a schedular total rating and award special monthly compensation (SMC) under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See Id. In this case, the question of entitlement to a TDIU from January 1, 2017 is moot. In a June 2019 rating decision, the RO granted SMC under 38 U.S.C. § 1114(s) effective January 1, 2017. As such, the question before the Board is whether the Veteran's service-connected disabilities rendered him unemployable prior to January 1, 2017. However, the Board notes that a TDIU cannot be awarded when the claimant is gainfully employed. Based on the evidence related to prior employment, education, and earnings provided from the Veteran, the record demonstrates that he had substantially gainful employment from July 2016 to December 2016. In the Veteran's VA Form 21-8940, he reported that he worked 40 hours from July 2016 to December 2016 as a janitor at a VA hospital and earned $1,800 per month. The Board has calculated the Veteran's earnings for the period in question and based on what he has reported, his earnings exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. The federal poverty threshold for a family size of one, under 65 years old, in 2016 was $12,486, or $1,040.50 per month. See, Poverty Thresholds, U.S. Census Bureau, http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The evidence further reflects that the Veteran was working in a position consistent with his education, training, and work experience. There is no indication or assertion that he was in a protected work environment or had marginal employment due to his service-connected disabilities. Thus, for the period from July 15, 2016 and December 15, 2016, entitlement to a TDIU is not warranted. As such, the Board must now determine whether the Veteran was unemployable prior to July 2016 because of his service-connected disabilities. For the reasons below, entitlement to a TDIU is not warranted. Turning to the evidence, records from the Social Security Administration (SSA) demonstrate the Veteran has received disability benefits since May 2010 for a primary disability of intracranial injury and a secondary disability of organic mental disorders. Generally, VA treatment records show that the Veteran suffered a stroke in April 2010 and consequently stopped working due to residual effects. The Veteran reports in his VA Form 21-8940 that he completed four years of high school and four years of college. Treatment records indicate he holds a bachelor's degree in psychology; has a background in social work; and completed one year of graduate studies for a master's degree in religion and quit the program due to his stroke. Medical records from SSA show that the Veteran has experience replenishing shelves. He has also worked as a call center representative, janitor, courtesy clerk, rental car associate, and in maintenance. Additionally, the Veteran reports working in newspaper delivery, yard maintenance, and security. The Veteran's DD 214 shows his military specialty was vehicle operator (bus driver). With regard to economic considerations, the record shows that following his discharge from service, the Veteran reportedly worked various jobs and earned a college degree in 2000. During a February 2012 VA examination, he indicated that he last worked at Walmart "pushing baskets" and resigned after his stroke in 2010. Remember, the question here is whether the Veteran was able to secure and follow substantially gainful employment before July 2016, performing a job with earnings that were above the poverty threshold. Based on the overall evidence, the answer is, yes. With regard to non-economic consideration such as his physical disabilities, the Veteran asserts that his service-connected tinnitus, bilateral hearing loss, headaches, and acquired psychiatric disorder renders him unable to secure and follow substantial gainful employment. However, the evidence of record indicates that none of these disabilities whether alone or in combination preclude the Veteran from obtaining and maintaining substantially gainful employment consistent with his work history, training, education, and skills. The Veteran underwent several VA examinations for his service-connected disabilities. The Board considered the physical ability-factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. 58. The competent evidence does not show that the Veteran's service-connected disabilities preclude him performing the movements above in a manner that inhibits employability, and the Veteran does not have a service-connected visual disability. At a January 2016 VA neuropsychological evaluation, the Veteran did report difficulty walking but he attributed that to his non-service-connected stroke. The Veteran also reported headaches (after initially stating that he did not have them) and shared that they occurred three times per week. He also noted impairments in processing speed, attention, and memory. Interestingly, the Veteran also shared that he was working part-time (20 hours) at a VA facility as a janitor. In December 2016, a private physician, Dr. H.S., completed a headaches disability benefits questionnaire (DBQ). The Veteran reported that he "has 15 to 20 prostrating migraine attacks a month accompanied by nausea, light and sound sensitivity, disturbed concentration, blurred vision, dizziness, and sensory changes." The duration of these attacks ranged between two to three hours; they were rated 10/10 in severity, and required the Veteran to lie down in a dark environment. Dr. H.S. reported that the migraines were caused by the Veteran's service-connected tinnitus. Dr. H.S. also reported that the Veteran's migraines impacted his ability to work and thus, he "would not be able to maintain substantial gainful employment due to the amount of work missed and would require frequent unscheduled breaks." Certainly, prostrating headaches requiring lying down, may hinder a person's ability to make movements like the ones listed earlier; however, the Veteran's contemporaneous medical records do not demonstrate that his migraine headaches limited his ability to lift, bend, sit, stand, walk, climb, grasp, type, or reach with a severity that precluded sustaining gainful employment. Regarding the Veteran's hearing loss and tinnitus disability, the January 2016 evaluation also shows that he denied having hearing difficulty. This report is consistent with the Veteran's treatment records, which generally do not show complaints of severe symptoms from hearing loss or tinnitus in the Veteran's day-to-day life. Also, the March 2012 VA examination indicates that the Veteran's hearing loss and tinnitus do not impact his ability to work. A functional impact which hinders the Veteran's ability to work because of his service-connected hearing loss and tinnitus disability is generally not shown in treatment records. The Board also considered the mental ability-factors noted in Ray, to include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. 58. However, the competent and contemporaneous evidence of record appear to indicate that the Veteran's complaints of memory loss or concentration difficulties are residual effects of his non-service-connected stroke. At his February 2012 VA examination for mental disorders, the Veteran's occupational and social impairment was described as a deficiency in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran's reported symptoms included mild memory loss, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and grossly inappropriate behavior. A November 2012 psychology note found the Veteran's memory and concentration within normal limits. The VA psychologist reported that the Veteran's memory disturbance was "due to stroke." In the January 2016 VA neuropsychological evaluation, the neuropsychologist noted that "concerns about [the Veteran's] cognitive functioning, including memory loss and disinhibition, were first noted in the medical records after his CVA" and she was "unable to find indication of concerns about [the Veteran's] cognitive functioning prior to his CVA." The evidence does not demonstrate that the Veteran's symptoms of an acquired psychiatric disorder were so severe that they inhibited his ability to work as a janitor, stock shelves, or even push grocery carts all jobs he previously held. The Board acknowledges the report of "grossly inappropriate behavior" and notes the context of this finding according to the February 2012 exam report, pertains to the Veteran's "often laughing inappropriately during the evaluation" and "demonstrated immature behavior." Nevertheless, these findings do not appear severe as they are not reported as such in contemporaneous treatment records. In assessing this claim, it is difficult to reconcile that the Veteran suffered with issues such as an ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity, or that they were so severe that he was unable to work; particularly when he was working part-time as a janitor in January 2016 and then began working full-time as a janitor (presumably for the same VA facility) in July 2016. During the period on appeal, the evidence has shown the Veteran to live with at least one roommate, maintain a relationship of 12 years with a girlfriend, engage in social activities like bowling and shooting pool, and work a part-time job. Additionally, a November 2012 psychology note indicates that the Veteran reportedly applied for a job at a VA medical facility and was interested in getting the job. The Board acknowledges the arguments presented by the Veteran's attorney regarding his unemployability and find them unpersuasive. Many of the symptoms or issues reported like memory, cognitive, or speech have been linked to his stroke, which is not a service connected disability. The Veteran's depressive symptoms may have fluctuated in severity, but they did not persist in a manner to inhibit him from securing or following substantially gainful employment. The January 2016 neuropsychologist noted that the Veteran reported "very few symptoms of anxiety and depression." Overall, the evidence of record diminishes the persuasiveness of the Veteran's contention that his service-connected migraine headaches, bilateral hearing loss, tinnitus or acquired psychiatric disorder preclude gainful employment. While the Veteran's psychiatric disorder manifests with deficiencies in most areas, as discussed earlier, contemporaneous treatment records do not show that the severity of his symptoms precluded him from obtaining or sustaining gainful employment; particularly in his field of experience such as collecting/pushing grocery carts or janitorial services. Additionally, the Veteran is reportedly computer literate he was enrolled in an online program for graduate studies, which suggest he could have pursued remote work as well. The Board has considered the fact that SSA awarded the Veteran disability benefits based, in part, on his service-connected mental disorder. However, the Board is not bound by SSA findings or decisions. Moreover, those records show the Veteran's SSA disability award was also based on the primary diagnosis of a non-service-connected intracranial injury, which cannot be considered for TDIU purposes. In sum, entitlement to a TDIU is not warranted. The persuasive evidence fails to show that the Veteran's service-connected acquired psychiatric disorder and other disabilities alone or combined would reasonably preclude substantially gainful employment that is consistent with his education and prior work history. (Continued on the next page) The Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim. As such, that doctrine is not applicable. Entitlement to TDIU is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.