Citation Nr: 21007477 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-15 628 DATE: February 9, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability, prior to March 30, 2015, is denied. FINDING OF FACT The evidence of record does not show that the Veteran’s service-connected disability alone precludes him from obtaining or maintaining substantially gainful employment consistent with his level of education and work history on a schedular or extraschedular basis prior to March 30, 2015. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to March 30, 2015 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to February 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board remanded the issue on appeal for additional development in July 2020. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). By way of background, in an August 2020 rating decision, an earlier effective date for the Veteran’s TDIU was granted, now effective March 30, 2015. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. This appeal began as a claim for an increased rating for the Veteran’s posttraumatic stress disorder (PTSD), along with an inferred TDIU claim. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). TDIU has already been inferred by the record and will be discussed below. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). TDIU Prior To March 30, 2015 In a May 2016 rating decision, the regional office originally awarded a TDIU, effective from March 8, 2016. In June 2016, the RO assigned an earlier effective date of January 22, 2016 for the award of that TDIU. As previously noted above, in August 2020 the RO granted an earlier effective date now of March 30, 2015. As the evidence reflects that the Veteran was unemployed during at least part of the appeal period after the initial date of service connection for his PTSD and he contends that his service-connected disability contributed to his inability to work, the issue of entitlement to a TDIU, prior to March 30, 2015, remains on appeal before the Board. See Harper v. Wilkie, 30 Vet. App. 345 (2018). Legal Standards A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master degree in education and his part-time work as a tutor). When considering a TDIU, the overriding issue is unemployability, not unemployment. The sole fact that a veteran is unemployed for non-service- connected reasons, or has difficulty obtaining employment because of economic circumstances, is not enough for a TDIU grant. A high schedular rating, in itself, is recognition that the impairment makes it difficult to obtain and retain employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can, in fact, find employment. See 38 C.F.R. §§ 4.1, 4.15. As noted, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s employment history, his educational and vocational attainment, and his particular disabilities are to be considered in making a determination on unemployability. The VA General Counsel has concluded that VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated as totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also held that unemployability is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991). “Substantially gainful employment” contains economic and noneconomic components; the economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray, 31 Vet. App. at 73-74. As noted above, in determining whether the veteran is entitled to individual unemployability, neither his non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, in deciding the claim, the Board may not favorably consider the effects of the non-service-connected disabilities with respect to their degree of interference with his employability. Indeed, the Court stated that in order for a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, supra. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See Gary v. Brown, 7 Vet. App. 229 (1994). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. As noted, consideration may not be given to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. However, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.10. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Schedular TDIU A total disability rating for individual unemployability may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The Veteran is service-connected for his PTSD with a 30 percent evaluation from May 23, 2014 to March 30, 2015, and with a 70 percent evaluation from March 30, 2015 forward. The Veteran has no other service-connected disabilities as of this Board decision. The Veteran’s total combined evaluation for compensation prior to March 30, 2015, the period in question for this TDIU claim, is 30 percent. Because the Veteran does not have a combined evaluation of at least 70 percent with at least one disability evaluated at 40 percent or higher, or a single service-connected disability that has been rated 60 percent or higher during the period at issue, under the 38 C.F.R. § 4.16(a) criteria outlined above, the Veteran does not meet the schedular criteria for a schedular TDIU rating prior to March 30, 2015. Consequently, a TDIU rating on a schedular basis prior to March 30, 2015, under 38 C.F.R. § 4.16(a), is not warranted. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Extraschedular TDIU If the above percentage thresholds are not met, the Veteran’s claim may still be referred to the Director, Compensation Service for consideration of an extraschedular rating, when the evidence of record shows that Veteran is “unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.” 38 C.F.R. § 4.16(b). For the period on appeal for the earlier TDIU claim, May 23, 2014 to March 30, 2015, the Veteran has only one service-connected disability, his PTSD, with a 30 percent evaluation effective from May 23, 2014, the initial date of service connection. The Board notes that it is precluded from an assigning an extraschedular rating in the first instance, as previously discussed. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The question for the TDIU claim in this appeal is, then, whether the evidence indicates unemployability sufficient to warrant a referral for an opinion regarding extraschedular consideration for a TDIU. Colayong v. West, 12 Vet. App. 524, 537 (1999); see Bagwell v. Derwinski, 9 Vet. App. 337, 339 (1996). The Veteran provided a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in March 2016, where he noted he worked as a delivery driver through March 1, 2015, his last reported employment. The Veteran noted he had completed 10 years of school and no other training. He indicated his highest source of income was when he worked earlier as a tile installer. The Veteran noted his delivery driving work but noted that it was part time and he could not function purely on part-time work. The Board previously issued a decision dated July 9, 2020 where it considered but denied a rating in excess of 30 percent for the Veteran’s PTSD prior to March 30, 2015, his sole service-connected disability. The Veteran has not appealed that Board decision, and thus the issue is no longer on appeal. However, the VA examinations and treatment notes in the appeal period contain VA treatment notes from February 2013, September 2013, December 2013, and January 2014 consistently note diagnoses of anxiety with symptoms of anxious mood and effect, but also that the Veteran was logical, goal-oriented, displayed good insight and judgment, and served as a quartermaster for his local chapter of a national veterans organization. Sleep issues were consistently noted but also that consistent use of prescription medication and regular psychological treatment had helped with the Veteran’s anger and that he was much calmer. The Veteran’s VA initial PTSD examination occurred in September 2014. This psychologist examiner noted occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, and that symptoms were controlled by medication. Examination revealed that the Veteran was neatly groomed, and his speech and tone were within normal limits. His thought process was logical and goal oriented. The Veteran was anxious, and his memory and concentration were intact. There were no indications of hallucinations or delusions. Also, the Veteran denied any suicidal or homicidal ideations. The Veteran denied a history of abuse or trauma growing up. He stated that he had been divorced for 20 years and had been living with his girlfriend for 18 years. The Veteran reported that he did not see his sons much, but had two close friends. He went to school until the ninth grade and worked several jobs, including having his own tile business at one point. The Veteran denied a family or personal history of mental health disorders. The Veteran reported that he had had several jobs, but he didn’t stay with them, but when he had his own tile business, then he stayed with it, giving up that line of work due to his knee replacement, a non-service-connected condition. In March 2015, the Veteran’s licensed clinical social worker provided a statement for the Veteran’s claims file, indicating she had treating the Veteran since September 2012, and that when the Veteran was first being treated, he was seen for anger management, increased anxiety/stress, and symptoms of depression. He was traumatized from combat in Vietnam, and this resulted in being diagnosed with PTSD and anxiety disorder not otherwise specified (NOS). He experienced anxiety, withdrawn behavior, anger management issues, and depression. The Veteran also had difficulty socializing and would rather have been in isolation. He could not tolerate being in crowds, he had self-medicated with alcohol for years, and his psychiatric disability affected his relations with friends and family and made it difficult to maintain employment. The Board also notes that the Veteran was involved in the management of his local chapter of a national veterans organization, to include management, “keeping the books in line,” and other managerial tasks during this period on appeal. The Board acknowledges that the Veteran’s service-connected disability of his PTSD, evaluated at 30 percent disabling prior to March 30, 2015. However, such interference is contemplated in the ratings assigned for his service-connected disability, and the weight of the evidence does not demonstrate total occupational impairment from the Veteran’s service-connected disability of his PTSD at any time in the period on appeal. The Board has considered the Veteran’s medical reports regarding his service-connected PTSD, and also his vocational history. For this period from May 23, 2014, to March 30, 2015, the Board notes the Veteran’s PTSD was diagnosed and being treated with regular outpatient sessions with a licensed clinical social worker and prescription medication. Some effect was noted regarding occupational and social functioning, indicating some degree of impairment. However, during this period, no VA medical examiner or treatment provider opined or remarked that the Veteran was totally precluded from gainful employment. The Board also notes that while the Veteran had previously run his own business as a tile installer, which he noted had to end due to non-service-connected knee disabilities, that the Veteran was working as a manager at the local chapter of his national veterans organization, to include managerial tasks, maintaining the books, and other functions indicative of capacity for gainful employment. Even though the Veteran had physical limitations for non-service-connected disabilities, the Veteran had the mental ability to perform the activities involved at his local chapter of his veterans’ organization, displaying appropriate memory and concentration, along with the ability to get along with co-workers, with demonstrated reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019); see also Withers v. Wilkie, 30 Vet. App. 139 (2018). The ultimate responsibility for determining the effects of disabilities on the question of employability rests with the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, the Board finds that the evidence of record does not demonstrate that the service-connected disability of record alone renders the Veteran unemployable. For this particular period, the Board notes limited effects of the Veteran’s diagnosed PTSD on his occupational and social functioning, but it does not rise to the level of total impairment. The Veteran has had a girlfriend for over 18 years and remains in contact with his children, indicating he is not totally isolated and is capable of social functioning. The Board notes and acknowledges the limitations of the Veteran’s other diagnosed conditions, to include his knee replacements and other painful joints. However, those other disabilities are not service-connected, and are thus not pertinent to the Veteran’s claim for a TDIU. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Under these circumstances, the Board concludes that extraschedular referral for TDIU is not warranted. Gilbert, supra. Based on the foregoing, the Board finds that referral to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted because the most credible, competent, and probative evidence of record does not reflect that the Veteran is unable to follow or secure substantially gainful employment due his service-connected disability for the entire period on appeal prior to March 30, 2015. See also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). (CONTINUED ON NEXT PAGE) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (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). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.