Citation Nr: 21074626 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-46 772 DATE: December 15, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities, on an extraschedular basis, prior to December 19, 2018, is denied. FINDINGS OF FACT 1. From March 18, 2014 to December 19, 2018, the Veteran's combined disability evaluation was 40 percent; a 30 percent disability evaluation was assigned for posttraumatic stress disorder (PTSD), 10 percent disability evaluation was assigned for tinnitus and a noncompensable evaluation was assigned for bilateral hearing loss. 2. The evidence of record does not establish that the Veteran's service-connected PTSD, tinnitus, and bilateral hearing loss prevented him from securing or maintaining substantially gainful employment prior to December 19, 2018. CONCLUSION OF LAW The criteria for entitlement to TDIU, on an extraschedular basis, prior to December 19, 2018, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.1 - 4.7, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1989 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In November 2019, the Board granted entitlement to TDIU effective December 19, 2018, and remanded the issue of entitlement to TDIU on an extraschedular basis prior to December 19, 2018. The matter was remanded again in January 2021 for additional development. The Board recognizes that the RO has discontinued TDIU effective December 2, 2020. The Veteran requests that his TDIU be reinstated, and he has filed a new claim. However, the Board only has jurisdiction over entitlement to TDIU prior to December 19, 2018. This issue was previously before the Board in June 2021, when it was remanded to VA's Director of Compensation Service for extraschedular consideration. With respect to the Veteran's claim 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...."). The Veteran seeks entitlement to TDIU, on an extraschedular basis, prior to December 19, 2018 due to his service-connected disabilities. TDIU is granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 and 4.19. TDIU may be granted under 38 C.F.R. § 4.16(a) if he meets certain schedular rating requirements, or under § 4.16(b) if he does not, so long as he is incapable of obtaining and maintaining substantially gainful employment on account of his service-connected disability or disabilities. Subsection 4.16(b) explains that it is the established VA policy 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. Therefore, rating boards should submit to the Director, Compensation Service, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in subsection 4.16(a). 38 C.F.R. § 4.16 (b). The Veteran filed an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, in March 2021. He indicated that he worked full-time from 2003 to 2016 as an owner/operator of a trucking company, with highest gross earnings of an estimated $20,000 per month. From 2016 to 2021, he was self-employed as a truck driver, with highest gross earnings estimated as $15,000 per month. The Veteran asserts that his service-connected PTSD prevented him from securing or following substantially gainful employment. The Veteran indicated that he had completed high school and that he had no other training. In June 2021, the Board remanded the matter for referral to the Director of Compensation and Pension Service (C&P) for consideration of the Veteran's entitlement to a TDIU on an extraschedular basis, supported by a full statement of the Veteran's service-connected disabilities, educational and vocational attainment, and employment history and all other factors having a bearing on the issue in accordance with 38 C.F.R. § 4.16(b). In April 2021, a determination was received from the Director of Compensation and Pension which found that the Veteran was not entitled to a TDIU on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 4.16(b) based on a thorough review of the evidence of record, as set forth below. The Social Security Administration (SSA) found the Veteran was not disabled for benefits purposes for a claim filed on January 13, 2020. The Veteran alleged he was unable to work due to PTSD, tinnitus, crushed vertebrae, left hip condition, eczema, abdominal pain, and insomnia. He reported that he was a self-employed truck driver from July 1994 to January 2020. Vocational analysis indicated work could be performed where interpersonal contact is incidental, such as assembly work, tasks should be no more complex than those learned and performed by rote and simple, direct and concrete supervision is required. The Veteran's vocational outlook was favorable. Portland Vet Center records of treatment from March 2015 to August 2015 were obtained and associated with the file. In March 2015, the Veteran requested to restart counseling services for readjustment issues. He reported that he was not in crisis. At his intake assessment, he appeared relaxed, friendly mood, flat affect and good thought content/process. The Veteran had his first meeting in April 2015 and stated that he was seeking counseling because he was feeling isolated and had been suffering from night sweats. He stated he had not had suicidal thoughts but was feeling depressed. He said that he worked as s trucker and business had been slow, so finances were a concern. At an April 28, 2015 session he stated that he felt isolated from his wife and children and wished he could communicate better with them. He reported that he had been out of work for several weeks due to a large hole in his truck's engine. He cancelled appointments in May 2015 because he was getting his truck fixed and would be busy with that for the next few weeks. He stated that he wanted to continue therapy and would call to schedule another appointment. The Veteran's spouse, SH, submitted a letter in support of the Veteran's claim. SH stated that she had been married to the Veteran since 1996 and has known him since 1987. She stated that he has been self-employed since 1994 because he does not respect other people, is confrontational and has a hard time with authority and with people who don't know what they are doing. SH stated that the Veteran has had several different businesses over the years. From 2003 to 2016 the Veteran transported mobile offices and set them up, tore them down, and did other repairs. In an attempt to minimize his stress, he sold his specialized truck business to a friend. SH and the Veteran owned and operated a café from 2009 to 2014. They were sued on two occasions for a hostile work environment and once by the Veteran's father for elder abuse. One hostile work action and the elder abuse action were dismissed. The second hostile work action was eventually won by the Veteran and SH, but it cost them a significant amount of money and resulted in severe "emotional baggage." SH stated it was a message to them that they could not have employees. From 2016 to 2020, the Veteran ran a trucking business hauling containers. SH stated the Veteran has lost many lucrative accounts over the years due to his rage. The Veteran underwent a VA hearing and tinnitus examination in February 2015. The VA examiner determined that the Veteran's hearing loss had no impact on ordinary conditions of daily life, including the ability to work, but noted the Veteran could not hear conversations well and had difficulty sleeping due to tinnitus. The Veteran underwent a VA PTSD examination in February 2015 the examiner indicated that the PTSD results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal behavior, self-care and conversation. The examiner noted the Veteran's work impairment (attributed to PTSD) includes a high need for control, irritability and difficulties getting along with others. The Veteran reported that he does not get along well with others and it is difficult for him to incorporate other people's views into his vision of how work should get done. The Veteran's overall medical treatment records or record are consistent with the findings and functional impairments shown on the VA examination. Based on a review of the available evidence, the Director determined that the available evidence did not show that the Veteran's service-connected disabilities prevented all types of gainful work or prevented gainful activity prior to December 19, 2018. The Director determined that the Veteran is not entitled to TDIU on an extraschedular basis prior to December 19, 2018. After a thorough review of the record, the Board concludes that the evidence does not demonstrate that the Veteran's service-connected disabilities, individually or in combination, prevented him from obtaining or maintaining substantially gainful employment prior to December 19, 2018. The medical evidence of record reveals no hospitalizations, surgeries, emergency room visits or intensive outpatient treatment for the Veteran's service-connected PTSD prior to December 19, 2018. The opinion of the VA examiner does not indicate that the Veteran's PTSD was so severe that it precluded him from securing and following substantially gainful employment prior to December 19, 2018. Further, the functional impairments associated with the service-connected disabilities for this period are relatively minor. Hearing loss and tinnitus had little functional impact. PTSD, despite the reports of isolation and social problems by the Veteran, did not prevent him from running several businesses. He demonstrated a wide skill set, such as management, construction, repair, and driving. As was noted by the vocational rehabilitation counselor, he was capable of performing occupational tasks, and the limitations from interpersonal action could be minimized. To be clear, TDIU is not dependent on a showing that a Veteran's customary employment or field is no longer possible, but that no substantially gainful employment is possible. Here, even in protected environments, the Veteran demonstrated he was able to transfer his skills and could have been employed in other areas, even if not his first choice of job. Accordingly, the Board finds that the Veteran did not meet the criteria for TDIU on an extraschedular basis as the evidence does not show that the Veteran was incapable of obtaining and maintaining gainful employment due to his service- connected PTSD, hearing loss and tinnitus prior to December 19, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.