Citation Nr: 21006642 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-33 813 DATE: February 4, 2021 ORDER Entitlement to a rating of total disability based on individual unemployability is denied. FINDING OF FACT During the period on appeal, the Veteran was not unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for a rating of total disability based on individual unemployability (TDIU) have not been met. 38 C.F.R. § 4.16(a), 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to September 1970. This appeal was remanded by the Board in March 2019. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional SSA records were sought, and the Veteran was able to attend a VA examination, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in December 2018. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. TDIU The Veteran seeks a total disability rating based on individual unemployability (TDIU). The Board is unable to grant TDIU in this matter because the Board does not find the Veteran incapable of securing and following substantially gainful employment due to service-connected disabilities. The Board finds that any unemployability is less likely due to the Veteran’s service-connected dysthymic disorder and tinnitus. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019). A total disability rating for compensation purposes may be assigned based on individual unemployability 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. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). In this case, the Board determines that TDIU cannot be granted for the period on appeal. After a review of the evidence of record, the Board determines that TDIU is not warranted. Indeed, there is not enough evidence of record to show that the Veteran’s service-connected dysthymic disorder and tinnitus, standing alone, render him unemployable. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) While the Veteran’s increased rating claims for dysthymic disorder and tinnitus date back to 2008, those claims were denied in a final May 2010 Board decision. The Veteran’s next increased rating application is his VA 21-8940, the formal TDIU application, received July 20, 2012. Accordingly, this is his date of claim for TDIU. Next, the Veteran’s service-connected disabilities consist of dysthymic disorder, currently rated at 50 percent and tinnitus currently rated at 10 percent; notably, service connection for hearing loss was denied. Because the Veteran’s dysthymic disorder is service connected as secondary to tinnitus, the two arise out of a common etiology. Thus, the Veteran’s current combined rating is 60 percent, and he has not met the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). Moreover, the Board concludes that TDIU is also not warranted, based on the evidence of record, because any inability of the Veteran to secure or follow a substantially gainful occupation at the time of his death was not a result of his service-connected disabilities. See 38 C.F.R. § 4.16(b). With respect to the medical evidence, the Veteran’s VA medical treatment records indicate that his dysthymic disorder and hearing loss could not cause unemployability under Section 4.16, and that any inability to secure or follow a substantially gainful occupation was a result of non-service-connected disabilities and/or advanced age. Specifically, the Veteran has been retired from his post-service usual occupation of truck driving since 2000. In a March 2020 statement, the Veteran states that he last worked full time on April 24, 2000, and that he became too disabled to work on that day. Indeed, records dated February 2003 and the November 2008 SSA determination, corroborate that the Veteran had to stop truck driving due to continuous and “ongoing complaints of unrelenting pain” arising from this accident. The consistency in the Veteran’s statements surrounding his unemployability confirms that the his unemployability is more related to his non-service-connected back injury. Indeed, the Veteran’s own application forms do not state that his dysthymic disorder or his tinnitus caused or contributed to his inability to secure and follow substantially gainful employment. Moreover, the evidence does not show a significant change in the Veteran’s dysthymic disorder and hearing loss at the same time as his unemployability. Accordingly, his unemployability is most likely the result of injuries arising out of his post-service related April 2000 car accident. More significantly, the Veteran’s service-connected disabilities are insufficient to render him unemployable. See 38 C.F.R. § 4.16(b). After two Court Remands, the Veteran was administered a C&P examination to evaluate the occupational impact of his service-connected disabilities, tinnitus and dysthymic disorder. The Veteran’s December 2019 C&P examiner notes that his dysthymic disorder symptoms, to include low motivation, decreased energy, disrupted sleep, and low stress tolerance interfere significantly with his ability to function in a work setting. The Veteran’s November 2012 examiner noted that his tinnitus interfered with his sleep as well, which would impact his daytime focus. Thus, the Board acknowledges the medical and lay evidence indicating an inability to work due to symptoms of dysthymic disorder and tinnitus. However, the Board finds that the Veteran’s unemployability is generally not due to service-connected disabilities. Indeed, in his TDIU application, and as far back as his 2008 SSA evaluation and 2003 treatment, the Veteran only asserts that he was unable to work after unrelenting musculoskeletal pain caused by his April 2000 car accident – a non-service-related injury. More importantly, the Veteran’s psychiatric and auditory treatment records during the period on appeal, to include June 2014, June 2016, and May 2018 depression screens, imply that the Veteran’s mental disorder would, at worst, impair his ability to focus on work related tasks. More recently, the Veteran’s December 2019 C&P examiner confirmed that his dysthymic disorder symptoms, to include low motivation, fatigue, sleep problems, and low stress tolerance, “significantly interfere” with his ability to work. Likewise, the Veteran’s tinnitus, while contributing to impairment of the Veteran’s sleep and his focus, can be addressed with reasonable adaptations to the work environment. The Veteran’s dysthymia and tinnitus symptoms, the Board notes, impact his ability to work at a consistent pace on a regular basis, interact with others, and adapt to frequent changes. They do not produce an inability to secure and follow substantially gainful employment. In considering this appeal, the Board would add that the September 2016 JMR presents a confusing understanding of what impact VA examinations have in the context of a TDIU claims. Specifically, the JMR found the November 2012 VA opinion was inadequate, as it did not incorporate the Veteran’s “recorded medical, educational and vocational history,” “failed to provide any rationale for his opinion,” and “did not fully comport with the instructions given by the Regional Office (RO).” However, the U.S. Court of Appeals for the Federal Circuit has made clear that it is the Board, as finder of fact, is the one determining whether a veteran is unemployable, not a VA examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Moreover, contrary to the language of the JMR, the Board is unaware of any part of Stefl v. Nicholson, 21 Vet. App. 120 (2007) or Barr v. Nicholson, 21 Vet. App. 303 (2007), that requires strict or even substantial compliance with the specific instructions provided by the RO in an examination request. Cf. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, any opinion the VA examiner provided regarding employability would never have been dispositive, regardless of how precisely worded, and was probably not truly necessary in the first place. Indeed, they can be disregarded entirely if they are inconsistent with other evidence of record. As such, in seeking to ensure that the correct verbiage was used, the only meaningful result this JMR (as well as the subsequent JMR in 2018) was to produce an unnecessary delay in adjudicating the Veteran’s claim. Therefore, while the Veteran’s December 2019 examiner noted that his dysthymic disorder and his tinnitus impacted his ability to function in an employment setting, it os the Board’s opinion, s finder of fact, that these disorders were not the main driver of the Veteran’s unemployability. Rather, as noted in a June 2019 nursing note, pain and other symptoms related to the Veteran’s car accident injuries impaired the Veteran’s ability to maintain employment. Because the Board finds that the Veteran’s inability to work is more likely caused by non-service-connected conditions, rather than the Veteran’s service -connected dysthymic disorder and tinnitus, a TDIU rating cannot be awarded. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia