Citation Nr: 21010087 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-23 288 DATE: February 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT While the threshold requirements for TDIU on a schedular basis have been met, the Veteran's service-connected posttraumatic stress disorder (PTSD) disability does not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 2005 to May 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In July 2018, the Board granted an initial 70 percent rating for the Veteran’s service-connected PTSD and remanded the TDIU claim to the agency of jurisdiction (AOJ) for adjudication in the first instance. After taking appropriate notification and development steps, the AOJ denied the Veteran’s entitlement to a TDIU in an October 2020 SSOC and returned the matter to the Board for appellate consideration. 1. Entitlement to TDIU The Veteran contends that he is unable to work due to his service-connected PTSD disability. Total disability will be considered to exist when there is any present 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). 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 be given to a veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In the instant case, the Veteran is service connected for the following disabilities: PTSD rated at 70 percent; migraine headaches rated at 30 percent; tinnitus and benign positional paroxysmal vertigo rated at 10 percent; and right hand third metacarpal fracture, left hand fifth metacarpal fracture, and right and left foot plantar fasciitis each rated at zero percent disabling. As the Veteran has a combined rating of 80 percent for the entire appeal period, the Veteran meets the criteria for schedular consideration of TDIU under 38 C.F.R. § 4.16(a). For the Veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Turning to the evidence of record, on June 2012 VA mental health examination, the Veteran reported that he had been working full time at Sabia Inc. for two years and also engaged in farm work two or three times a week. However, he also reported that he takes time off from work one day a week due to being tired and lacking motivation, except during the summer. The Veteran also experienced difficulty with being distracted at work, but denied having other problems at work due to mental health concerns. After reviewing the Veteran’s PTSD symptoms, the VA examiner stated that the Veteran’s occupational and social impairment was consistent with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In his September 2013 notice of disagreement (NOD) the Veteran stated that he was only able to work because his supervisors made extreme accommodations for him. He believed he would never be able to receive these accommodations with a different employer. For example, if the Veteran felt too tired, his boss let him leave for a couple hours to take a nap. If the Veteran became irritable with co-workers, his boss would let him work alone without being bothered. In July 2015 correspondence to the Veteran’s U.S. Senator, the Veteran’s father stated that two months after securing permanent housing, the Veteran experienced multiple episodes of panic and job-related stress with other employees. On some occasions, the Veteran made verbal threats towards his supervisor after having difficulty understanding complex work instructions. These issues resulted in the loss of employment that the Veteran had maintained for four years. As such, the Veteran is unable to maintain employment due to personal relationships. The Veteran is also unable to make long-term decisions regarding employment because he tends to jump from one career choice to another on a weekly basis. His obsession with insignificant activities also prevented him from completing day-to-day routines. On his August 2019 VA 21-8940, the Veteran indicated that he worked in manufacturing with S. Inc. from 2010 to 2014. The average work week was 40 hours, but the Veteran lost 90 days due to illness. The Board notes that S. Inc. never replied to the VA’s request for additional information. The Veteran also worked as a laborer with F.I. from April 2016 to May 2016 where the average work week was 40 hours per week. In this role, the Veteran lost 16 days due to illness. April 2020 correspondence from F.I. indicated that they had no record of the Veteran’s employment. Additionally, the Veteran noted his latest employment with S.C. as a framer. The Veteran worked at S.C. from May 2016 until he quit in February 15, 2018. Although the average work week required 40 hours, the Veteran reportedly lost 216 days from illness. His highest gross earning per month was $600. The Veteran tried to obtain employment again from S.C. in March 2018, as he was given the opportunity to come back at any time. However, the Veteran had “no idea why I couldn’t hold [his] last job”, even though his employer worked with him on missing days due to PTSD symptoms. For some reason, the Veteran could not bring himself to go back to the high stress environment, even though he loved working that job. The Board notes that in June 2020 correspondence, a representative of S.C. indicated that the Veteran quit with no evidence suggesting that the Veteran was unable to perform the job. As for his education, the Veteran indicated that he completed four years of high school and two years of college. He also had manual machining training in August 2015 after he reportedly became too disabled to work. Following the July 2018 Board remand, the Veteran underwent another VA mental health examination in October 2020. During the examination, the Veteran reported that he had been unemployed since September 2017 to be a stay-at-home caregiver and father while his girlfriend underwent treatment for stage-four cervical cancer. While the examiner indicated that the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity, the examiner went on to opine that the Veteran's needed to stay home and not engage in gainful employment is not related to his service-connected PTSD. Based on the foregoing evidence, the Board finds that the award of a TDIU is not warranted. Here, the Veteran has competently and repeatedly established that his fatigue, lack of motivation, and irritability impacted his work attendance. However, this evidence does not establish that these symptoms prevented him from completing the physical and mental acts required by employment. Here, during his June 2012 VA examination and in his September 2013 NOD, the Veteran conceded that his supervisors allowed him to leave work when he was tired or work alone when he became irritated with other. Although the Veteran’s father asserted that these symptoms resulted in his loss of employment, there is no evidence to suggest that the Veteran’s employers took issue with his work performance when they made accommodations for his symptoms. While the statements from the Veteran and Sabia have consistently indicated that he left his latest employment on his own volition and with the option to return, the Veteran has given inconsistent statements as to why he left. Notably, after initially stating that he could not bring himself to return to the high stress environment of his job in his August 2019 VA 21-8940, he later told the October 2020 VA examiner that he left job to be a stay-at-home caregiver and father while his girlfriend battles cancer. Thus, the Board finds that any current assertions as to his reasons for leaving employment are deemed not credible. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). In summary, while the Board does not doubt that the Veteran's service-connected PTSD disability has some impact on his employability, the weight of the evidence does not support his contention that this service-connected disability is of such severity so as to preclude his participation in any form of substantially gainful employment. In fact, while the medical opinions of record have concluded that there is some impact on his ability to work, there is no medical opinion of record which indicates that he is unable to work. The Board finds that the symptoms associated with the Veteran's service-connected PTSD disability are appropriately compensated via the currently assigned ratings. See 38 C.F.R. §§ 3.321 (a), 4.1. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim for TDIU must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Spann, 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.