Citation Nr: 21005443 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 11-31 911 DATE: February 1, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran had active service from August 1971 to August 1974 and January 1975 to March 1976. 2. The Veteran's service-connected disabilities, residuals of a concussion at 10 percent disabling and headaches at 0 percent disabling, do not render him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In August 2018, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there are sufficient additional service-connected disability ratings to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 (1993). 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 (1993). The Veteran is currently service connected for residuals of a cerebral concussion secondary to head trauma to include cognitive disorder not otherwise specified at 10 percent and a noncompensable rating for headaches associated with head trauma. Therefore, he does not meet the requirements for TDIU on a schedular basis. 38 C.F.R. § 4.16(a). As to whether referral for extraschedular consideration is warranted, the Veteran has been rated at 10 percent for residuals of a cerebral concussion since 1983. Since leaving service, he has worked at several different jobs including at a fast food restaurant, as a groundskeeper, a heating and air conditioning installer, delivering cars for auction, and truck driver. He last worked in 2000. He dropped out of school in 8th grade but subsequently earned his GED. The Veteran had VA examinations for residuals of his concussion in 1983, 2006, 2009, 2013, and 2017. He also had psychiatric evaluations, which discussed his occupational functioning in 1986, 2006, 2009, and 2013. These examinations found that he had mild short-term memory and comprehension issues due to his concussion. In the June 2009 VA examination, the examiner reported that the Veteran had a history of becoming angry and quitting jobs. He had difficulty working around people because he did not trust them. The examiner found that the Veteran’s problems with memory were likely to interfere with his ability to function consistently in a job. The September 2009 examiner noted that the Veteran had difficulty with concentration and memory, poor processing speed, difficulty learning and retaining information, and working at a consistent pace. He also noted the Veteran had “amotivational” tendencies. He supported the Veteran’s contention that his unemployment was due to the effects of his mental disorder. In the February 2013 VA examination, the examiner stated that the residuals of the concussion did not impact the Veteran’s ability to work. His short-term memory loss would interfere with following orders and doing tasks in a stepwise fashion and this may prevent him from keeping certain types of jobs. The 2017 VA examiner similarly found that the Veteran may have difficulty with complex social work situations due to a combination of impaired memory/concentration and executive functioning skills. In a VA mental health integration evaluation in February 2020, the examiner concluded that the etiology of the Veteran’s cognitive deficits was likely due to several factors including limitations in premorbid IQ, and his history of traumatic brain injury, alcoholism, and renal failure. As to private or clinical evidence, in January 2007, a private physician wrote that the Veteran was “totally disabled and unable to work – he has had a kidney transplant and is under immunotherapy.” The Veteran sought service connection for his kidney transplant which was denied in October 2007. This evidence does not support the appeal as it attributed the Veteran’s unemployment to a nonservice-connected disorder. Based on the above, the weight of the medical evidence does not support referral for extraschedular consideration. While all of the VA examiners found the Veteran had some cognitive deficiencies and would have difficulty with more complex work positions, the over-all picture is one that his disability would limit him to some types of jobs but does not render him unemployable. A physician treating him in 1984 noted that the Veteran could do well in jobs such as a semi-skilled factory work or grounds maintenance. The Board also notes that the Veteran’s combined rating is 10 percent based on 10 percent for a concussion and 0 percent for headaches. While not dispositive, these ratings do not suggest that his service-connected disabilities are severe. Further, he has multiple nonservice-connected disorders listed in his Medical History including hypertension, hyperlipidemia, back pain, kidney transplantation, hepatitis C, anxiety, arthritis, syncope, prostate cancer, acute myeloid leukemia (in remission), leg abscess, glaucoma, obesity, and Vitamin D deficiency, which cannot be considered for TDIU purposes. Based on the above, referral to the Director of Compensation for consideration of unemployability on an extraschedular basis is not warranted. The Board has considered the lay statements of the Veteran regarding his capacity to work throughout the entire period on appeal. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16. Such competent evidence concerning the nature and extent of the Veteran’s employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the impact of the Veteran’s service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of unemployability, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gamache, 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.