Citation Nr: 21006761 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-11 297 DATE: February 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability prior to May 7, 2015 is denied. FINDING OF FACT The Board finds that the pertinent and more probative evidence of the record does not demonstrate that the Veteran’s service connected disabilities alone are of sufficient severity to render him unable to secure and maintain substantially gainful employment, prior to May 7, 2015. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability prior to May 7, 2015 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341(a), 4.1, 4.16, 4.19, 4.25 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has a period of active duty service from June 1967 to February 1971. In February 2020, the Board remanded the Veteran’s claim for additional development. The Board finds that there was substantial compliance with the July 2018 remand directives for the issue on appeal discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The regional office (RO) referred the Veteran’s TDIU claim to the Director of Compensation and Pension to determine if TDIU was warranted prior to May 7, 2015 on an extra-schedular basis. In response, it was the finding that the evidence of the record failed to support the assignment of an extra-schedular rating for TDIU prior to May 7, 2015. TDIU The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or 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 are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). This cannot be awarded by the Board in the first instance, but only considered after a preliminary referral to the Director of the Compensation service. That has been done in this case and the Board may proceed with its consideration. In reaching such a determination, 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). Consideration may not be given to the impairment caused by nonservice connected disabilities. See 38 C.F.R. §§ 3.34, 4.16, 4.19. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Substantially gainful employment is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a Veteran’s earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Entitlement to a total disability rating based on individual unemployability prior to May 7, 2015. During the course of an appeal for a higher rating for his service connected disorders, the Veteran asserted that prior to May 7, 2015, his service connected disorders rendered him unable to secure and maintain substantially gainful employment. Review of the records reveals that the Veteran has been unemployed and disabled by SSA since June 2001. Evidence of the claims file reveals that the Veteran was employed as a registered nurse from around September 1996 to July 2001 when he voluntarily retired after being diagnosed with a non-service connected stroke. Prior to May 7, 2015, the Veteran was service connected for the following disorders: Post traumatic stress disorder PTSD at 50 percent; tinnitus at 10 percent; a skin disorder at 10 percent; hypertension at 0 percent; and bilateral haring loss at 10 percent. As the Veteran does not have a single service connected disability ratable at least at 60 percent or more, and there are not sufficient additional service connected disabilities to bring the combined rating to 70, he did not meet the schedular requirements for consideration of individual unemployability prior to May 2015. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2020). As noted, the matter was referred to the Director of the Compensation Service for extraschedular consideration. It was concluded that an extraschedular TDIU was not warranted. This finding is evidence the Board may consider, but it is not binding on the Board. In a September 2010 VA mental disorder examination, the examiner diagnosed the Veteran with PTSD and severe alcohol dependence. During the examination, the Veteran reported that he consumed 12 to 14, 12 ounce beers per evening. The examiner recommended that the Veteran attend an alcohol abuse program, but he declined. The examiner noted that the Veteran has managed to survive due to his serious alcohol dependence. The examiner also noted that the Veteran is an intelligent man who is capable of managing his finances and possesses an intermittent inability to perform activities of daily life including self-care. In a September 2011 VA mental disorder examination, the examiner diagnosed the Veteran with PTSD. The Veteran reported that he holds a BA in psychology. The Veteran also reported that he has not been employed for nearly ten years, but was employed as a postal clerk for almost 10 years post-service. The Veteran also reported that he was employed as a nurse for five years prior to suffering a stroke which left him wheelchair bound for a year. The Veteran reported that he was fired from his postal clerk job for drinking alcohol and excessively calling in sick. During his time as a nurse, the Veteran reported a poor relationship with his supervisor. The Veteran also reported a loss of motor skills and expressed that his unemployment is not primarily due to his PTSD. Concerning functional and occupational impairment, the examiner noted that the Veteran’s PTSD causes occupational and social impairment with occasional decrease in work efficiency and an intermittent inability to perform occupational task although generally functioning satisfactorily with routine behavior, self-care, and normal conversation. The examiner noted that the Veteran’s stroke was responsible for him leaving his job as a nurse because he has difficulty walking. The examiner also noted that the Veteran’s alcoholism is also a factor in him not being able to maintain employment. In an October 2011 VA hearing loss examination, the examiner diagnosed the Veteran with bilateral hearing loss and tinnitus. Concerning functional and occupational limitations, the examiner noted that the Veteran’s hearing loss and tinnitus does not impact his usual occupation or daily activities. In an October 2011 VA skin conditions examination, the examiner diagnosed the Veteran with psoriasis. Concerning functional and occupational limitations, the examiner noted that the Veteran’s psoriasis does not impact his usual occupation or daily activities. In an August 2012 VA hypertension examination, the examiner diagnosed the Veteran with hypertension. Concerning functional and occupational limitations, the examiner noted that the Veteran’s hypertension does not impact his ability to work. In an April 2013 VA skin diseases examination, the examiner diagnosed the Veteran with psoriasis. Concerning functional and occupational limitations, the examiner noted that the Veteran’s psoriasis does not impact his usual occupation or daily activities. In an April 2013 VA hypertension examination, the examiner diagnosed the Veteran with hypertension. Concerning functional and occupational limitations, the examiner noted that the Veteran’s hypertension does not impact his ability to work. The Board reviewed findings from the Social Security Administration (SSA) that considered the Veteran disabled from June 2001 for the residuals of a stroke. The above evidence reflects that the Veteran’s service connected disabilities alone do not render the Veteran unable to obtain and maintain substantially gainful employment prior to May 7, 2015. Importantly, the Board emphasizes that it is not bound by SSA disability findings when considering VA benefits, including entitlement to a TDIU. Although the Veteran claims that his service-connected disabilities prevent his employment prior to May 7, 2015, VA examination reports have repeatedly indicated that his non-service connected stroke had been the primary impediment to his continued employment. The Board finds that while the Veteran’s service connected disabilities render him unable to perform certain types of labor; nonetheless, the evidence of record does not show he is rendered unable to physically or mentally secure or follow substantially gainful employment as a result of his service-connected disabilities prior to May 7, 2015. As indicated in the record, the Veteran has a college education and lengthy work history as a postal clerk and as a registered nurse. Overall, the record indicates that the Veteran’s education and experience are such that the impairment caused by his service-connected disabilities would not prevent him from securing and following substantially gainful employment for the time in question. Moreover, there is no evidence in the record to support a finding that the Veteran’s service connected disorders symptoms are manifested by total social and occupational impairment. As the records show, there is no evidence of gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; or a persistent danger of self-harm or harming others. Moreover, there is no indication of significant employment impairment due to the symptoms associated with the Veteran's service connected disorders. The Veteran’s employment impairment for this time is due to factors other than his service-connected disorders such the residuals of a stroke he experienced in June 2001. The Board also reviewed and carefully considered the Veteran’s lay statements asserting that the severity of his service connected disorders warrants TDIU prior to May 7, 2015. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to TDIU as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lastly, the Board has determined that nothing suggests symptoms outside the norm for rating the service connected disorders. Moreover, prior to May 7, 2015 the evidence of record does not reveal that he presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization due to his service connected disorder so as to render impractical the application of extra-schedular consideration for his service connected disabilities. Although the Veteran has been rendered unable to obtain or maintain substantially gainful employment, this is primarily due to the residuals of his stroke disability and not his service connected disabilities. After a full review of the record, the Board finds that the evidence is against the Veteran’s claim for TDIU prior to May 7, 2015. As discussed above, the pertinent evidence of record does not demonstrate that the Veteran’s service connected disabilities, alone, are of sufficient severity to render him unable to secure or follow substantially gainful employment at any time during this appeal period. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris, 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.