Citation Nr: 21073658 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-40 886 DATE: December 9, 2021 ORDER Entitlement to total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The evidence does not indicate that the Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from November 1966 to October 1968, and from August 1978 to September 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a personal hearing before a member of the Board in his July 2018 Substantive Appeal. Although a hearing was scheduled for November 10, 2021, the Veteran cancelled his request for a hearing in a statement received by VA in October 2021. Consequently, the Veteran's request for a personal hearing is deemed withdrawn. 38 C.F.R. § 20.704(e). The Veteran maintains that he is unable to work due to his service-connected posttraumatic stress disorder (PTSD). In that regard, the Veteran reported that the symptoms related to his PTSD were a major contributing factor to his retiring. Further, the Veteran stated that his nonservice-connected seizure disability is related to his service-connected PTSD, and that disability has caused his unemployability. In this case, the Veteran has satisfied the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for TDIU. The Veteran is currently service connected for PTSD (at 70 percent), diabetes mellitus (at 20 percent), tinnitus (at 10 percent), and hearing loss (at a noncompensable rate). His service-connected disabilities result in a total 80 percent combined rating. 38 C.F.R. § 4.25. The remaining and dispositive question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). On his VA form 21-8940 the Veteran reported that he was unable to work due to his service-connected PTSD. The Veteran reported that he last worked full-time in August 2014. He reported that prior to 2014, he worked for an electronics company. As noted above, the Veteran has also reported that he was unable to work due to his seizures, and that his seizures are related to his service-connected PTSD. The Veteran has a college education. In a January 2017 PTSD Disability Benefits Questionnaire (DBQ), the examiner noted diagnoses of PTSD and REM sleep behavior disorder. When discussing the Veteran's PTSD, the examiner noted that the Veteran had a positive history of seizure activity, and can become disoriented to time and place. Moreover, the examiner noted that the Veteran had temporal lobe epilepsy and a history of seizure activity. The examiner stated that the Veteran's PTSD symptoms were hyper-vigilance, suspiciousness of others, exaggerated startle response, avoidant behaviors, intrusive memories, mid-phase insomnia, lack of trust, and feeling detached. Ultimately, the examiner stated that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. Subsequently, another examiner noted that the Veteran suffered from seizures in a February 2017 seizure disorders DBQ. However, she stated that the Veteran did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his seizures. Further, she stated that the Veteran's seizures were not medically related to his service-connected PTSD. The examiner stated that the Veteran's seizures did impact his ability to work, noting that the Veteran was unsure when his seizures would happen and that he was unable to drive or work on machinery. Notably, the Veteran was denied entitlement to service connection for epilepsy (seizures) in an unappealed April 2017 rating decision. At a November 2017 VA PTSD examination, the Veteran reported that he received his commercial driver's license in 1991 and that he drove big rigs from 1991 until 2000 for various companies. He reported that he began to work electronics/maintenance repair until he retired in 2015. He reported that one of the reasons he retired was because a younger coworker "poked and goaded him." He reported that he had seizures and other health problems after retirement, and that he was unable to drive due to his seizure disorder. The examiner noted the Veteran's PTSD diagnosis. Further, he stated that the Veteran had 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 impaired impulse control, such as unprovoked irritability with periods of violence. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. He noted that the Veteran's PTSD was moderate and that his symptoms continued to impact his social, interpersonal, and other areas of functioning. The examiner noted that the Veteran had stable employment until he retired, and opined that the Veteran's service-connected disabilities were not likely to impact his ability to function effectively is an occupational setting. Further, the examiner stated that his mental health issue was not likely to make it difficult for him to complete work-related tasks effectively and appropriately, or interact with coworkers/supervisors. The examiner stated that the Veteran's seizures would be a greater impediment to the Veteran's ability to function in an occupational environment. The Board finds that the Veteran's service-connected PTSD does not prevent him from obtaining and maintaining gainful employment. While the Board does acknowledge the Veteran's relatively severe PTSD impairment, there is no indication that such impairment would cause him to be unable to obtain and maintain gainful employment. Indeed, the Board notes that a high rating in itself is recognition that the impairment makes it difficult to secure or follow employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Board finds that the weight of the evidence is against finding that that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. The Board emphasizes that consideration for a TDIU must be based solely on the impairment caused by a service-connected disability. In this case, while the impairment caused by the Veteran's nonservice-connected seizures are severe, VA cannot consider its impact on the Veteran's ability to obtain and maintain employment. Further, there is no indication from the VA examination reports or treatment notes of record that the Veteran would have been unable to obtain or maintain any employment consistent with his work experience and education as a result solely of his service-connected disabilities. The Board acknowledges the Veteran's assertions regarding his symptoms and the effects of his service-connected disabilities on his ability to obtain and maintain substantially gainful employment. Specifically, the Board acknowledges the Veteran's concern that the November 2017 examiner did not understand how irritable he would become in the workplace due to his PTSD and seizures. However, after thorough consideration of the record, the Board concludes that the preponderance of the evidence demonstrates that the Veteran's PTSD is not so significant as to preclude him from obtaining and maintaining gainful employment. Further, the Board notes that the record does not reflect, and the Veteran did not assert that any other service-connected disability precludes him from obtaining and maintaining gainful employment. Therefore, the Board finds that the Veteran's service-connected disabilities alone do not render him unable to secure and follow substantially gainful employment consistent with his education and industrial experience. Accordingly, the preponderance of the evidence is against the claim and entitlement to a TDIU is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Sonja A. Mishalanie Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Cannaday, 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.