Citation Nr: 21072509 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-49 855 DATE: December 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT During the period on appeal, the Veteran's service-connected disabilities, in combination, did not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.17, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1994 to September 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) located in Waco, Texas. The issue of entitlement to an increased rating for the Veteran's service-connected psychiatric disability was previously before and denied by the Board in April 2019. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and in April 2020, the Court vacated the Board's April 2019 decision and remanded the issue back to the Board for re-adjudication. The Board then remanded the issue for additional development in November 2020, before granting entitlement to a 70 percent rating for the psychiatric disability in February 2021. In the Board's February 2021 decision, it also found that entitlement to TDIU was raised as part and parcel of the claim for an increased rating of the psychiatric disability and it remanded entitlement to TDIU for additional development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is now before the Board again for adjudication. 1. Entitlement to TDIU Entitlement to TDIU has been raised during the administrative appeal of the Veteran's claim for an increased evaluation for his service-connected psychiatric disability. A Veteran may be awarded TDIU benefits if he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). VA may consider the level of education, special training, and previous work experience in making this determination, but may not consider the Veteran's age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Medical evidence describing the effect of each disorder on the Veteran's occupational functioning is crucial to permit the Board to arrive at an assessment of employability. 38 C.F.R. § 4.1. However, the question of whether the Veteran's service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board's determination to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 C.F.R. § 4.16(a) as support for the conclusion that the applicable statutory and regulatory provisions "place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Therefore, the Board will review the medical evidence in the context of the other evidence of record prior to reaching an ultimate conclusion regarding his employability. A threshold requirement for eligibility for TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; if 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. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Hee, the Veteran's service-connected disabilities and ratings during the period on appeal have been as follows: unspecified trauma and stressor related disorder is evaluated as 70 percent disabling throughout the period on appeal; sleep apnea syndrome has been evaluated as 50 percent disabling throughout the period on appeal; lumbosacral strain has been evaluated as 10 percent disabling prior to December 26, 2017 and 20 percent disabling thereafter; tinnitus has been evaluated as 10 percent disabling throughout the period on appeal; gastroesophageal reflux disease (GERD) status post cholecystectomy has been evaluated as 10 percent disabling throughout the period on appeal; allergic rhinitis has been evaluated as 0 percent disabling (i.e., noncompensable) throughout the period on appeal; residuals of hernia surgery have been evaluated as noncompensable throughout the period on appeal; hernia surgery scar associated with residuals of hernia surgery have been evaluated as noncompensable throughout the period on appeal; gallbladder removal surgery scar associated with GERD status post cholecystectomy has been evaluated as noncompensable throughout the period on appeal; and dermatitis with psoriasis and discoloration (claimed as tinea versicolor, psoriasis, skin condition on bilateral feet, first degree burns to arms, and second degree burn on left arm) has been evaluated as noncompensable throughout the period on appeal. The Veteran's combined rating, throughout the period on appeal, has been 90 percent disabling. Thus, he meets the threshold schedular rating requirement for eligibility for TDIU under 38 C.F.R. § 4.16(a) throughout the period on appeal. The Veteran, however, has never claimed that his service-connected disabilities preclude him from obtaining or maintaining gainful employment, but his representative has stated that his service-connected unspecified trauma and stressor related disorder has impaired his ability to obtain substantially gainful employment. See Brief received August 13, 2020. After the Board's February 2021 decision and remand, the RO issued a rating decision and a notification letter advising the Veteran that he may be entitled to TDIU if he is unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. He was advised, therein, to complete, sign, and return an enclosed VA Form 21-8940 and to have his last employer complete and return an enclosed VA Form 21-4192 if he believes that he qualifies for TDIU. See Rating Decision issued February 25, 2021; Notification Letter dated March 1, 2021. The Veteran did not complete the former form nor have the latter form completed. An April 2015 VA Initial Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ), a private April 2017 mental disorders DBQ, and February 2018 VA examination reports indicate that the Veteran was working as a cook at those times. See Initial PTSD DBQ dated April 9, 2015; Mental Disorders DBQ dated April 17, 2017; Esophageal Conditions DBQ dated February 6, 2018; Scars/Disfigurement DBQ dated February 6, 2018; Peripheral Nerves Conditions DBQ dated February 6, 2018; Back Conditions DBQ dated February 6, 2018; Hernias DBQ dated February 6, 2018. During the April 2015 PTSD examination, the Veteran described his performance at work as "outstanding." See id. An April 2015 VA hearing loss and tinnitus examination report indicates that the Veteran's hearing loss does not impact his ability to work and that his tinnitus causes functional and occupational impairment to the extent that it is sometimes "annoying." See VA Hearing Loss and Tinnitus DBQ dated April 9, 2015. An April 2015 VA back conditions examination report indicates that the Veteran's service-connected back condition did not impact his ability to work. See VA Back Conditions DBQ dated April 21, 2015. Other April 2015 VA examination reports indicate that the Veteran's service-connected dermatitis, rhinitis, hernia residuals, GERD, and sleep apnea did not impact his ability to work. See VA Skin Diseases DBQ dated April 21, 2015; VA Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx DBQ dated April 21, 2015; VA Hernias DBQ dated April 21, 2015; VA Esophageal Conditions DBQ dated April 21, 2015; VA Gallbladder and Pancreas Conditions DBQ dated April 21, 2015; VA Intestinal Conditions DBQ dated April 21, 2015; VA Intestinal Surgery DBQ dated April 21, 2015; VA Sleep Apnea DBQ dated April 21, 2015. February 2018 VA hernias and scars/disfigurement DBQs indicate that the Veteran's residuals of hernia surgery and hernia surgery scar do not impact his ability to work, but February 2018 VA back and peripheral nerves conditions DBQs indicate that the Veteran's back disability renders him unable to do anything at all except stand and hold onto something to keep from falling during flare ups, which reportedly occurred twice per week and lasted 10-20 minutes each time. See VA Hernias DBQ dated February 6, 2018; VA Scars/Disfigurement DBQ dated February 6, 2018; VA Back Conditions DBQ dated February 6, 2018; VA Peripheral Nerves Conditions DBQ dated February 6, 2018. A February 2018 VA esophageal conditions DBQ indicates that his GERD causes occupational impairment to the extent that his symptoms are sometimes too bad to focus on work, and cause him to gag excessively. See VA Esophageal Conditions DBQ dated February 6, 2018. The Veteran has not appealed the ratings for any of his service-connected disabilities other than that for his unspecified trauma and stressor related disorder. And while the VA PTSD/psychiatric disability examination reports in the claims file do indicate that the Veteran's unspecified trauma and stressor related disorder cause relatively severe symptoms and social and occupational impairment, none of them indicate that it has caused total occupational impairment or precluded him from obtaining and maintaining gainful employment during the period on appeal. Neither do the VA treatment records, private treatment records, the letter from his private psychologist or the DBQ from another private psychologist in the claims file. See, e.g., letter from J.V.E., Psy D. (referred to by initials for privacy) received September 24, 2015; Mental Disorders DBQ dated April 17, 2017. To the contrary, all of the VA PTSD examination reports and the private DBQ in the claims file indicate that the Veteran's service-connected psychiatric condition impairs his ability to work but does not preclude his ability to work. Upon review of the entire claims file, including but not limited to the evidence discussed above, the Board finds that the evidence does not indicate that the Veteran's service-connected disabilities, in combination, preclude him from obtaining or maintaining gainful employment. Rather, the evidence reflects that he has maintained employment throughout most, if not all, of the period on appeal, and there is no indication that his employment was not gainful. Furthermore, as discussed above, the Veteran himself has not gone as far as to contend that he is unable to obtain or maintain gainful employment as a result of his service-connected disabilities. The Board does not intend to minimize the functional impacts of the Veteran's service-connected disabilities, and it notes that throughout the period on appeal, the Veteran's combined disability rating is 90 percent disabling, his unspecified trauma and stressor related disorder is evaluated as 70 percent disabling, and his sleep apnea syndrome is evaluated as 50 percent disabling. These high ratings in and of themselves are recognition of, and compensation for, the fact that the Veteran's service-connected disabilities impose substantial impairment of the Veteran's ability to obtain and maintain gainful employment. However, for the reasons discussed above, the preponderance of the evidence of record still weighs against finding that the Veteran's service-connected disabilities render him unable to obtain and maintain gainful employment. Accordingly, the Board finds that the Veteran is not entitled to TDIU. In denying this claim, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banks, 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.