Citation Nr: 21072143 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 09-05 179 DATE: December 2, 2021 ORDER Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU), prior to March 30, 2009 is denied. FINDING OF FACT The evidence does not show that the Veteran was precluded from securing or maintaining a substantially gainful occupation due to his service-connected posttraumatic stress disorder (PTSD), left ankle fracture, and left foot disability prior to March 30, 2009. CONCLUSION OF LAW The criteria for a finding of TDIU, prior to March 30, 2009, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.40, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with U.S. Army from September 1965 to December 1968 and from June 1973 to July 1974. This case comes before the Board of Veteran's Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In May 2011, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In a September 2011 decision, the Board denied the Veteran's claim for TDIU. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). On the basis of a Joint Motion for Remand (JMR), the Court in March 2012 vacated the September 2011 decision and remanded the issue for further development. The Board in turn remanded the matter to the AOJ in August 2012 and in March 2016. A March 2016 rating decision granted entitlement to a TDIU effective April 1, 2013. In February 2019 decision, the Board granted entitlement to a TDIU on an extraschedular basis from March 30, 2009 to April 1, 2013. The Veteran appealed this decision to the Court. In October 2019, the Court vacated and remanded the Board's February 2019 decision for compliance with the instructions in a Joint Motion for Partial Remand (JMPR). In April 2020 decision, the Board denied the Veteran's claim for TDIU. The Veteran appealed this denial to the Court. In June 2021, the Court vacated and remanded the Board's April 2020 decision for compliance with the instructions in a JMR. The matter is now before the Board again for further appellate review. With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). In the June 2021 JMR, the Court found that the Board erred by not properly addressing the Veteran's physical and mental limitations along with his educational and occupational history on his ability to obtain and maintain substantially gainful employment. The Board also erred by mischaracterizing the March 2016 vocational consultant's opinion. The Veteran seeks an effective date of April 25, 2006, the date of a statement in which he first raised a claim for increased compensation and unemployability. This was actually received by VA on May 15, 2006. 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. 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." 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 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). "Substantially gainful employment" is an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income. Marginal employment may be held to exist, on a facts-found basis including, but not limited to, employment in a "protected environment" such as a family business or sheltered workshop when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a); Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Board notes that for the time period in question, the Veteran did not meet the threshold schedular eligibility requirements for TDIU under 38C.F.R. §4.16(a). However, the Board, in granting eligibility for the award of TDIU in 2019, met all due process requirements under 38C.F.R. §4.16(b) and secured referral to the Director, Compensation and Pension Service, who considered the entire appellate period. This decision may therefore proceed on the merits of the claim without further referral and delay. The Board granted entitlement to TDIU on an extraschedular basis from March 30, 2009, to April 1, 2013, in February 2019 based on the Veteran's PTSD, left ankle fracture with left fibula fracture and fracture, left foot, post-operative. The record reflected that prior to March 30, 2009, the Veteran was service connected for PTSD rated as 30 percent disabling, left ankle fracture rated as 10 percent disabling, and left foot fracture rated as noncompensable (zero percent). The Veteran's combined disability evaluation was 40 percent. On April 2006 VA 21-8940, the Veteran indicated that his PTSD, left leg trauma, and tinnitus prevented him from a gainful occupation. The Veteran last worked full time in November 2001. He noted that he became too disabled to work in November 2001. The Veteran indicated that he worked as an accountant and had a college education. In July 2006, the Veteran was afforded a VA examination. The Veteran reported that he was unemployed since November 2001. He indicated that his left foot condition caused him to have intermittent pain and some stiffness. The Veteran denied weakness, swelling, heat, redness, instability, giving way, locking fatigability, or lack of endurance of his left foot. During flare-ups his severity was rated 8/10 and occurred 2 times a week. His flare-ups lasted approximately 12 hours. The examiner opined that the Veteran had physical limitations that were both service and nonservice-connected conditions. The predominate limitations were from his nonservice-connected conditions. He indicated that the Veteran was not able to lift over 15 pounds. He was not able to climb ladders, operate a forklift, or do prolonged standing or walking. In August 2006, the Veteran was afforded a PTSD VA examination. The Veteran reported that he had difficulty interacting with people. The Veteran was impatient and had a short temper. He had issues with authority and resenting authority. He reported that he spent his day working on projects around the house. He noted that he saw his friend every 4 to 6 weeks. He reported that he enjoyed buying and selling guns. The examiner opined given the Veteran's history his PTSD did not interfere with employment in the past and most likely would not at the present time. He noted that the Veteran's list of jobs showed no gaps in time between jobs except during the early 1990's indicating that he was able to stay employed most of the time. An August 2008 VA treatment note documented that the Veteran was seen for his PTSD symptoms. He had persistent symptoms of anger, irritability, intermittent insomnia, nightmares of combat, hypervigilance in crowded places, and occasional brief flashbacks. In May 2009, the Veteran was afforded a VA examination. The Veteran described his emotional experiences as a range from deep sadness to a high degree of anger. He reported that he had a few friends. The Veteran reported that he had difficulties maintaining relationships with co-workers. The examiner noted that his irritability, hypervigilance, interpersonal conflicts, and anger were of a moderate severity. The examiner indicated that the Veteran had hypervigilance, exaggerated startle response, irritability, and concentration impairment which likely caused significant disruption of his previous employment. A May 2012 private vocational opinion was submitted. Ms. EH noted that it was difficult to determine an exact date when the Veteran became unemployable due to his service-connected conditions because he left his last employment due to unrelated medical conditions. However, the Veteran's symptoms of PTSD worsened. Based on the Veteran's own statements, that threshold was reached by April 2006 when he requested an increased rating for his PTSD. Based on the VA examinations, he was certainly unemployable as of March 30, 2009 when the VA examiner acknowledged the Veteran's social and occupational dysfunction related to PTSD. She concluded that based on the continuity and worsening progression of the Veteran's left foot and PTSD conditions as described in VA medical record, it was at least as likely as not that the Veteran's PTSD and left foot dysfunction rendered him unable to secure or follow a substantially gainful occupation, and that this unemployability dated back to April 2006. A March 2016 private addendum opinion from Ms. EH was submitted. She stated in her May 2012 opinion, the Veteran was unable to secure and follow a substantially gainful occupation since April 2006. She based that opinion on the Veteran's statements and his wife's statements concerning the functional impact of his service-connected PTSD symptoms. She noted that on May 2009 VA examination the Veteran indicated that his biggest functional problem was getting along with others. She noted that the Veteran completed a bachelor's degree in Business. His work history included employment as a legislative liaison, lobbyist, political consultant, fundraiser, administrative assistant, technical instructor, and computer retail salesperson. She noted that in her original May 2012 report, it was her opinion that the Veteran had at least as likely as not been unable to secure and follow a substantially gainful occupation since April 2006 based on his own statements concerning the functional impact of his service-connected PTSD symptoms. She wrote that the May 2009 VA PTSD examination provided medical support for the severity of his symptoms and addressed his pattern of repeatedly losing his employment due to the severity of his PTSD symptoms. Based on that report, and the consistent statements of functional impairment by the Veteran and his wife, it was at least as likely as not that the Veteran was unemployable no later than April 2006 due to his service-connected PTSD symptoms. Given the Veteran's education, work experience, and remaining functional capacity from service-connected disabilities, the Board finds that the Veteran would be able to secure and follow substantially gainful employment prior to March 2009. The Veteran retains the capacity to work in a "light duty or sedentary position" and he does have the necessary training and background that would potentially allow him to obtain substantial gainful employment in such a position. As noted in the July 2006 examination his left foot condition caused him to have intermittent pain and some stiffness. The Veteran denied weakness, swelling, heat, redness, instability, giving way, locking fatigability, or lack of endurance of his left foot. The examiner opined that the Veteran had physical limitations that were both service and nonservice-connected. The predominate limitations were from his nonservice-connected conditions. While the Veteran has had physical limitations, the record reflected that he was able to tolerate moderate physical activity, including yardwork and completing different projects around the house. Further, the record reflects that he was able to complete his daily chores and he was able to go and come from his VA appointments without the need of assistance. The Board acknowledges that the Veteran might not be able to return to some of his previous positions, such as an administrative assistant, technical instructor, accountant, or computer retail salesperson. However, entitlement to TDIU is not warranted simply because the evidence shows a Veteran would be unable to return to the specific job or line of work performed in the past or that he or she would make a lower salary than in the past. Rather, VA regulation provides 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." However, the Board does have a duty to rely on actual evidence of employability and analyze such evidence in concluding whether a veteran could perform work that would produce sufficient income to be other than marginal. See Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The Board acknowledges that the private vocational consultant Ms. EH opines that the Veteran is unable to secure and follow a substantially gainful occupation since April 2006. She indicates that his PTSD symptoms has a functional impact on his employability. The Board also acknowledges the August 2006 VA PTSD examiner opinion indicating that the Veteran's PTSD did not interfere with his employment. Moreover, while the Board certainly considers the opinions of examiners in the record, the determination of whether a Veteran is entitled to TDIU is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board finds the weight of the evidence reflects that while the Veteran's PTSD causes occupational impairment, reflected in the assignment of a compensable rating, it does not rise to the level such that it would preclude him from obtaining or maintaining a substantially gainful occupation consistent with his education and experience. The record reflects prior to March 2009, he could perform the physical and mental acts of employment. Although, his service-connected disabilities cause some difficulties, the record reflects that he can maintain friendships and relationships, and did not need assistance with his daily chores. The Veteran's only true physical restriction was from prolonged walking and standing. While it is clear that employment dependent on public interaction or which would not permit breaks would not be advantageous, there are roles in other employment opportunities which would be amenable to such accommodations. PTSD may restrict interaction with others but will still allow him to work independently. Further, the Veteran has highly transferable skills based on his previous work history. Accordingly, entitlement to TDIU prior to March 30, 2009, is denied. The Board recognizes that the Veteran sincerely believes he was unable to obtain or maintain substantially gainful employment due solely to his service-connected disabilities during the time in question; however, the most probative evidence of record weighs against his claim, and therefore, entitlement to TDIU is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.