Citation Nr: 21075004 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 15-35 416 DATE: December 17, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The most probative evidence indicates that the Veteran's service-connected disabilities did not preclude him from substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a)(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to March 1974. The Veteran died in May 2019. The appellant is the Veteran's surviving spouse, who was properly substituted in August 2019. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This matter was previously before the Board of Veteran's Appeals (Board) in May 2019, and again in June 2020. The Board most recently denied the appellant's claim for entitlement to a TDIU for purposes of accrued benefits in a June 2020 decision. Subsequently, the appellant appealed the June 2020 decision to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Remand (JMR) asking the Court to vacate the Board's June 2020 decision for failing to provide an adequate statement of reasons and bases in assessing whether the Veteran was entitled to a TDIU. Specifically, the Board did not properly discuss the Veteran's occupational and educational histories in the context of his ability to obtain and maintain substantially gainful employment. The Court issued an order granting the Joint Motion in June 2021. Entitlement to a TDIU In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Prior to his death, the Veteran was service connected for one disability, post-traumatic stress disorder (PTSD) with cocaine abuse, and was in receipt of a 50 percent disability rating, effective January 30, 2014. Accordingly, the Veteran did not meet the schedular criteria outlined above. Because the threshold minimum schedular requirements for consideration of entitlement to a TDIU have not been satisfied, the Board need not proceed to the unemployability portion of the schedular TDIU analysis. Thus, entitlement to a TDIU on a schedular basis under 38 U.S.C. § 4.16 (a) is denied. Moreover, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. Id. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). It is imperative for the Veteran to understand that neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As to a TDIU under 38 C.F.R. § 4.16 (b) the Board notes that in Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16 (b) in the first instance because that regulation requires that the RO first submit the claim to the Director of Compensation Service for extraschedular consideration. Therefore, the next question for the Board to consider is when, if ever, the Veteran met the criteria for a referral under 38 C.F.R. § 4.16 (b) to submit his claim to the Director of Compensation Services for extraschedular consideration. In this regard, the Board notes that the appropriate standard in considering whether a remand for referral of consideration of extraschedular TDIU under 38 C.F.R. § 4.16 (b) is found in Ray v. Wilkie, 31 Vet. App. 58, 65-66 (2019). The Court in Ray held that "the decision to refer [a case for extraschedular consideration under § 4.16 (b)] and to award a [TDIU] rating are fundamentally different." 31 Vet. App. at 65. Furthermore, the Court held in Ray that "the initial extraschedular referral decision under § 4.16 (b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. at 66, 66 n.38 (explaining that this standard (for initial extraschedular TDIU referral decision) was similar to and merely elaborates on the well-grounded claim standard used in Stanton v. Brown, 5 Vet. App. 563,570 (1993)). Again, the central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad, 5 Vet. App. at 529. The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. As to the facts surrounding the appeal, the Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, dated June 2014, upon which he reported that he could not secure or follow any substantially gainful occupation due to PTSD. The Veteran reported that he became too disabled to work and had not worked full-time because of his service-connected PTSD since 2002. Furthermore, the Veteran stated that he worked as a welder and completed a high school education. In November 2018, the Veteran submitted another VA Form 21-8940, Application for Increased Compensation Based on Unemployability. Again, the Veteran reported that he could not secure or follow any substantially gainful occupation due to PTSD. Specifically, the Veteran reported occupational impairment due to anger issues, agitation, a failure to adhere to instructions and supervisors, and the inability to do basic job requirements. He detailed that he became too disabled to work and last worked full-time as a factory worker in 1985. He further reported that he had completed two years of college. Initially, the Board notes that the Veteran's recollection of his work history appears to be impaired. For example, the Veteran initially reported that he became too disabled to work in 2002 and had not worked full-time because of his service-connected PTSD since then. Roughly four years later, the Veteran claimed he had not worked full-time and became too disabled to work in 1985 because of his service-connected PTSD. Nearly two decades separate the Veteran's changing claims concerning his work history. Therefore, the Board places little probative weight on the Veteran's recollection of his occupational history. However, the Board finds that even if it conceded that the Veteran had not worked since 1985, this fact alone is not enough to meet the criteria for referral of his claim because the preponderance of the evidence shows there is not a reasonable possibility that he is unemployable by reason of his service-connected disabilities. See 38 C.F.R. § 4.16 (b); Owens v. Brown, 7 Vet. App. 429, 433 (1995); Ray, 31 Vet. App. at 65-66. The Board has reached this conclusion because extraschedular consideration is only warranted when the adverse symptomatology caused by a Veteran's service-connected disabilities are not adequately compensated for by the rating criteria. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (providing, in substance, that disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity). In this regard, the Board finds that the most probative evidence of record in the form of the Veteran's VA examinations show that the adverse symptomatology caused by his service-connected PTSD are both contemplated and considered by the rating criteria. See Owens, 7 Vet. App. at 433. The Board also finds that this evidence shows there is no reasonable possibility that he is unemployable by reason of his service-connected PTSD, even when considering his career as a fabricator or welder and his associate degree. Id.; see also Ray, 31 Vet. App. at 65-66. Tellingly, the Board finds the Veteran's treatment records the most probative evidence of record in this case. For the reasons discussed below, the evidence shows that the Veteran was unable to work due to his nonservice-connected disabilities including blindness, peripheral nerve damage, hypertension, and chronic renal disease with dialysis. In fact, (the Board believes that it must make this point clear considering the prior litigation in this case) the Veteran's PTSD symptoms appear exaggerated, with his adverse symptomatology improving over the years. A detailed review of the Veteran's statements over time and the treatment records clearly indicates to the Board that the Veteran was not an accurate historian of his disabilities. The Board believes that the Board must make this factual determination clear for the record. The reasons for this finding was indicated above, and will be further address below. In August 2014, the Veteran underwent a VA examination to determine the severity of his service-connected PTSD. It was shown that the Veteran's symptoms were not severe enough to interfere with occupational and social function or to require continuous medication. Furthermore, the examiner opined that the Veteran's mental health symptoms would not interfere with his ability to maintain full-time employment. At that time, the Veteran's mental health symptoms did not preclude the ability to maintain focus for a 2-hour period, did not preclude the ability to understand and remember instructions or learn new tasks, and did not preclude the ability to interact socially. After reviewing post-military experience, the examiner noted that the Veteran worked for seven years as a fabricator. The Veteran stopped working there in 1992 due to the plant closing down. Furthermore, the Veteran stated that he had not been employed since 1993 and was not able to work because of his PTSD symptoms. The examiner found the Veteran was not convincing in his report of mental health symptoms, or that his functioning was as negatively impacted by mental health symptoms as he presented them. In short, the Veteran was noted to have exaggerated his symptoms. Moreover, the examiner reported how the Veteran got along well with other people in his employment positions and had no problems in his work setting. In September 2015, the Veteran submitted a statement and reported the following: difficulty getting along with others, including when trying to communicate; being argumentative; avoiding stressful situations because he could not handle them well; an inability to listen to others; and other anti-social behaviors, which the Veteran attributed to his inability to work for 20 years. See September 2015, VA Form 9. In September 2015, the Veteran's treating physician provided an opinion to address his medical illnesses and subsequent limitations. First, the physician noted the Veteran was legally blind, resulting in the inability to read normally. At that time, the Veteran had Stage 3 kidney disease, causing him severe fatigue and limiting his ability to stand, walk, and perform simple tasks. Furthermore, the Veteran had a cerebral vascular accident that caused right-sided weakness. The Veteran also had persistent weakness in the right arm and right leg, therefore limiting his physical ability to lift and walk. The physician opined that these illnesses hindered his employability. Next, the physician addressed the Veteran's diabetes and how it affected the peripheral nerves in his legs, causing daily pain due to permanently damaged nerves. This nerve damage limited his ability to walk and stand, being important aspects of many jobs. Overall, the physician noted that his physical limitations from blindness, peripheral nerve damage, and stroke, made it impossible for the Veteran to do any task that would make him employable and gainfully employed. See September 2015, Administrative Note. In October 2018, the appellant, on behalf of the Veteran, asserted the Veteran's PTSD increased in severity because he was not able to use a lot of medications because of his nonservice-connected disabilities. See October 2018 Hearing Transcript. The Veteran's medical and treatment records are limited in this regard, often listing PTSD and anxiety as being active problems for the Veteran without providing additional detail. See, e.g., October 2018, Social Work Comprehensive Assessment. Notably, at the time of the Veteran's Community Nursing Home referral, his medical problems included aspiration pneumonia, end-stage renal disease, left cerebrovascular accident, hypertension, diabetes mellitus, anemia secondary to acute kidney injury, and percutaneous endoscopic gastrostomy tube. See February 2018, Social Work, Discharge Planning/Aftercare. Again, in February 2019, the Veteran's PTSD screening score was recorded as 0, indicating a negative screen for PTSD. See February 2019, Primary Care Nursing Note. The Veteran provided a letter in support of his claim for entitlement to a TDIU due to service-connected PTSD. See November 2018, Capitol Hill, Health and Rehabilitation Center, Medical Opinion. In the letter, a Certified Registered Nurse Practitioner (CRNP) opined that the Veteran was deemed unemployable and would require constant custodial care. The CRNP merely noted the Veteran had a history of cerebral vascular accident with dysphagia on gastrostomy feedings, PTSD with agitation, mood swings, and depressed affect, Stage 5 renal failure dependent on renal dialysis, contractures, and was unable to ambulate and perform daily activities of living. However, no rationale was provided in support of the opinion. In fact, no weight was given to attribute the Veteran's PTSD symptoms and its adverse symptomatology to the Veteran's unemployability. It cannot be said whether the Veteran's service-connected PTSD alone was of sufficient severity to produce unemployability. The fact that the Veteran could not work is clear. The question the Board must address is why he could not work. In sum, the objective medical evidence does not support a finding that the Veteran was precluded from obtaining or maintaining substantially gainful employment due to his service-connected problem. The medical evidence in this case provides highly probative evidence against this claim. The evidence shows that the Veteran was unable to work due to his nonservice-connected physical conditions, such as legal blindness and peripheral nerve damage. While the Veteran was competent to report symptoms he experienced, an opinion as to the limitations on gainful employment due to his service-connected PTSD was beyond his medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, his reports were not credible due to inconsistency with the available treatment records, examinations, and statements. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Thus, any such lay statements regarding him being unable to work are not competent or sufficient. Simply stated, both the best factual evidence, including occupational history reported by the Veteran, and the best medical evidence, in the form of the examinations and opinions cited above, as well as treatment records, provides evidence against this claim. (Continued on the next page) The Board observes that the disability rating assigned throughout the appeal recognized that the impairment due to his service-connected PTSD made it difficult to obtain and keep employment (that the Veteran had problems with PTSD was not in dispute). However, the ultimate question in determining entitlement to a TDIU is whether the Veteran was capable of performing the physical and mental acts required by employment caused by the service-connected problem, not whether he can find employment. See Van Hoose, 4 Vet. App. at 363. If the Veteran did not have problems with his service-connected PTSD, there would be no basis for the disability rating of 50 percent (which, it is important for the appellant to understand, would have caused him many problems). The record in this case at some points undermines the finding of 50 percent for PTSD. Further, the Veteran's age cannot be used for a basis for granting the TDIU claim, or the nonservice connected problems cited above, which were clearly very serve. The fact that the appellant is attempting modulate the serious severity of the nonservice-connected problems underminds her credibility with the Board. In this case, there is no indication from the record that the Veteran was unable to obtain and maintain substantially gainful employment solely as a result of his service-connected PTSD. Accordingly, entitlement to a TDIU is not established and referral to the Director of Compensation Service for extraschedular consideration is not merited. 38 C.F.R. § 4.16 (b). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, Associate 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.