Citation Nr: 21074285 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-35 514A DATE: December 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that his service-connected disabilities preclude him from securing and following substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1989 to July 1989 and from November 1989 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before a Veterans Law Judge who is now retired in December 2016. The Veteran testified in support of his claims for PTSD, fibromyalgia, headaches, and cervical strain. The hearing transcript is of record. In April 2021 and September 2021, a letter was sent to the Veteran asking whether he would like a new hearing. No response from the Veteran was received. Therefore, the Board finds that he has declined to have another hearing. In the March 2021 decision, the Board remanded the claim of entitlement to service connection for obstructive sleep apnea and entitlement to a TDIU for further development. Thereafter, in a July 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for obstructive sleep apnea. As this represents a total grant of the benefits sought on appeal with respect to the issue, it is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). The Board finds that the actions requested in the prior remand have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. Specifically, in March 2021 and May 2021, the AOJ requested that the Veteran submit any treatment records or information to obtain such records, as well as any statements regarding how his disabilities affect him. They also requested that he complete and return a VA Form 21-8940. The Veteran did not respond to the request for information or complete and return the VA Form 21-8940. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to a TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disabilities to bring the combination to 70 percent or more. For the purposes 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 (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether the functional impact of the Veteran's service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. Turning to the evidence of record, a September 2015 VA Vocational Rehabilitation and Employment (VR&E) letter reflects that the Veteran was denied his request for VR&E because he was gainfully employed full-time. A December 2015 VA record notes that the Veteran stated although he was qualified to retire from his job based on his number of years of employment, he did not meet the age requirements for retirement. He stated that his job was not a good fit with his PTSD disability. He stated that he had an associate degree and would like to quit his job in order to return to college to complete his bachelor's degree to become a teacher. The Veteran reapplied for VR&E benefits, and in June 2016 he was re-admitted to VR&E. In September 2016 he was notified that he was awarded vocational rehabilitation benefits. In November 2016, he notified VR&E that he was retiring from his job effective December 31, 2016 and would begin attending college full-time in January 2017. In May 2018, the Veteran graduated from college with a Bachelor of Science degree in education. In January 2019, VR&E sent a letter to the Veteran stating that they had interrupted his VR&E program effective immediately because he had not completed the training or other objectives outlined in his rehabilitation plan. They determined that his circumstances had improved, specifically his writing and computer skills and the knowledge he obtained through his degree program. In February 2019, the Veteran notified VR&E that while he had gained valuable skills for his job search, that due to his semi-retired employment status he was unable to obtain full time public employment. In a special report of training received in February 2019, VR&E noted that the Veteran was not suitably employed, but that he is employable as a result of VR&E services, but criteria for closure as rehabilitated are not met. VR&E noted that this was because the Veteran had opted to discontinue employment services and requested claim closure. In March 2019 VR&E sent the Veteran a formal letter confirming that he had been offered employment services but had decided not to participate in such services because he wanted to seek employment on his own, at his own pace. A review of the relevant VA examination reports for the Veteran's service-connected disabilities during the appeal period shows that in April 2015 the Veteran had a PTSD examination. The examiner found that the functional effects of the Veteran's PTSD were occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks, although generally functioning satisfactorily, with normal routing behavior, self-care and conversation. In February 2016, the Veteran had a VA examination for headaches. The examiner concluded that the Veteran's headache condition did not impact his ability to work. In January 2017, the Veteran had a PTSD examination. The examiner found that the functional effects of the Veteran's PTSD were occasional decrease in work efficiency. In October 2019, the Veteran had a VA examination for PTSD and the examiner found that the Veteran's level of occupational and social impairment was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. An October 2019 VA headache examination report states that the functional impact of the Veteran's headaches it that per the Veteran, when he gets a headache, he knows that he cannot work that day due to light sensitivity and that when he has headaches during the school day he lives with the pain until the end of the school day and lies down when he gets home. In a May 2021 individual unemployability statement, the examiner stated that the Veteran could perform medium work, exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds for force constantly to move objects. A May 2021 VA report states that the functional impact of the Veteran's obstructive sleep apnea is that his headaches are bothered by lights in the school, and he has difficulty focusing on tasks and is drowsy mid-afternoon, which affects his work. Regarding the symptoms of the Veteran's service-connected tinnitus disability and their functional impact during the appeal period, the Veteran did not have a VA examination during the appeal period. He was granted service connection for tinnitus in August 2009 based on a July 2009 examination wherein he reported having tinnitus daily for several minutes at a time. Regarding functional effects, the examiner found that there were no significant effects on the Veteran's occupation. Regarding the private examinations and correspondences pertaining to the Veteran's service-connected disabilities during the appeal period, a February 2016 letter from the Veteran's therapist states that his PTSD symptoms have increased over the past several years due to work related concerns and that the Veteran requires vocational rehabilitation to avoid further decompensation. In a December 2016 mental status examination report for the Veteran's PTSD claim notes that the Veteran stated that he left his job that month in order to go back to school. He stated that he had interpersonal problems at work and that emotional factors contributed to his leaving employment. The examiner concluded that the Veteran has impairment, especially in social areas, but can functional satisfactorily with effort. At the December 2016 Board hearing, which included the Veteran's testimony regarding relevant service-connected disabilities pertaining to this appeal, namely PTSD and headaches, the Veteran's was asked whether his PTSD impacted his ability to work, making him less reliable or productive. The Veteran answered that his PTSD symptoms made it difficult for him to interact with strangers. He testified that he had some difficult interactions with his co-workers. He testified that while he had resigned his job as a water superintendent effective December 2016, he was still employed, working part time, three days per week doing side-jobs. A January 2017 private PTSD examination report states that the Veteran has occupational and social impairment with reduced reliability and productivity. VA treatment records during the appeal period show that in December 2015, the Veteran stated that he wanted to quit his job so he could go to school because his job does not "fit" with his PTSD. In May 2016, the Veteran reported that he was increasingly frustrated and irritable but denied having trouble at work. In May 2016, the Veteran reported that he "went off" on his boss during a telephone call. In July 2016, he reported that he was irritable at work and somewhat depressed. In November 2016, he reported that work was stressful, and he had not had any outbursts, but that co-workers avoid him. A May 24, 2021 VA treatment record shows that the Veteran was working as a substitute teacher. A June 2021 VA telephone encounter note states that the Veteran was coaching baseball. An August 2021 VA occupational therapy encounter note states that the Veteran was not working. Upon consideration of the above, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's service-connected disabilities preclude him from securing and maintaining gainful employment during the appeal period. The evidence shows that the Veteran was able to work full time during the appeal period until at least December 2016. Following that, he was able to work part-time using his job training from his former job, and as a substitute teacher. As the Veteran did not submit a VA Form 21-8940, the Board is unable to determine whether the Veteran's substitute teaching employment was full or part time, as substitute teachers may substitute full-time, thus the Board is unable to determine whether it was gainful or marginal employment. The Veteran was able to attend college full time, despite the functional impact of his service-connected disabilities, from January 2017 until the date of his graduation in May 2018 with a Bachelor of Science degree. Following his graduation, the Veteran was offered employment assistance, but he declined, stating that he wanted to seek employment at his own pace. The VR&E program found that the Veteran was employable and noted that he had obtained new skills in college. As such, the Veteran did not satisfactorily complete the VR&E program. Given this evidence, the Board cannot reasonably conclude that the Veteran is unable to secure or follow substantially gainful employment due solely to his service-connected disabilities during the appeal period. The standard for entitlement to a TDIU is not whether a veteran's service-connected disability interferes with his employability, but whether it precludes it altogether. The Board recognizes that the Veteran's PTSD clearly interferes with his capacity to successfully engage with others, including in a professional setting during the appeal period. Further, his obstructive sleep apnea causes him difficulty focusing on tasks and he may become drowsy mid-afternoon. His headaches cause pain and light sensitivity and may disrupt his work. His tinnitus disability may be also be distracting. However, the evidence does not show that the Veteran's symptoms from his service-connected disabilities preclude him from obtaining and maintaining gainful employment. Rather, the Veteran worked full-time during the appeal period prior to December 2016, thus, it follows that he was not unable to maintain gainful employment. He then attended school full time and graduated; thus, the Board deems that during the time period when he attended college, the symptoms of his service-connected disabilities would not have precluded him from securing or maintaining gainful employment, as he was able to succeed in college despite its rigors. He then refused employment assistance through the VR&E program even though they had determined that he was employable. Thus, the Board finds that although the Veteran stated that he was unable to obtain full time work because he was semi-retired, the evidence does not reflect that the Veteran was unable to obtain or maintain gainful employment following his graduation from college to the present. The Board affords the evidence that VR&E determined that the Veteran was employable following his graduation from college probative value. Further, no medical evidence indicates that the Veteran's functional impairment is consistent with an inability to obtain or secure gainful employment. Thus, the evidence supports a finding that the Veteran was either gainfully employed, in full time college, or employable but not employed, during the entire period on appeal. The evidence supports a finding that the Veteran could have obtained and followed gainful employment following his graduation from college to the present. As such, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation at any time during the appeal period. Thus, the appeal seeking entitlement to a TDIU is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.