Citation Nr: 21010915 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-03 847 DATE: February 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 14, 2014, is denied. REMANDED Entitlement to service connection for PTSD is remanded. FINDING OF FACT The Veteran was not unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to March 14, 2014. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to March 14, 2014, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1970 to October 1973 and from October 1974 to April 1975. In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in November 2018 with instructions to the Agency of Original Jurisdiction (AOJ) to obtain the Veteran’s outstanding VA treatment records and obtain an addendum opinion as to whether any of the Veteran’s diagnosed acquired psychiatric disabilities other than unspecified trauma/stressor-related disorder may be related to his active service. Pursuant to the remand, the AOJ obtained the Veteran’s outstanding VA treatment records and obtained an opinion in September 2019 that is consistent with and responsive to the November 2018 remand directives. Accordingly, the Board finds that VA at least substantially complied with the November 2018 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to a TDIU prior to March 14, 2014 The Veteran seeks entitlement to a TDIU prior to March 14, 2014. The appeal for entitlement to a TDIU was raised as part and parcel to the appeals for higher initial (compensable) ratings for healed fracture of the right fifth metacarpal with mild palmer angulation and for laceration scar on left thumb. Therefore, the applicable period is from May 26, 2010, the effective date for the award of service connection for those disabilities, through March 13, 2014. See 38 C.F.R. § 3.400. Those are the Veteran’s only two service-connected disabilities during that period. Service connection was not granted for a psychiatric disorder until March 14, 2014. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “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,” and 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). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). During the relevant period, the Veteran was service connected for healed fracture of the right fifth metacarpal with mild palmer angulation and for laceration scar on the left thumb. Both of those disabilities were rated as noncompensable throughout the relevant period. Thus, the regulatory percentage requirements for a TDIU were not met prior to March 14, 2014, because the Veteran did not have a single disability rated at 60 percent or above or a single disability rated at least at 40 percent and a combined rating of at least 70 percent during that period. Nevertheless, the Board will consider whether the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation during that period. See 38 C.F.R. § 4.16(b). The Veteran reported on a VA Form 21-8940 received in August 2012 that he became too disabled to work on March 19, 2012, due to neuropathy. On a VA Form 21-4192 received in August 2012, the Veteran’s most recent employer indicated that the Veteran last worked on March 17, 2012, as a machine technician and that he stopped working to go on a leave of absence. The Veteran testified at the April 2018 Board hearing that he cannot be hired because he walks “like a monster” due to prior surgeries on his back and a lack of balance due to neuropathy. He also testified that he last worked as a process technician in a bakery and stopped working “because my neuropathy got so bad that I could [not] walk the floor no more.” His Social Security Administration (SSA) disability records show that he was found disabled for SSA purposes from March 17, 2012, due to a primary diagnosis of diabetes mellitus and a secondary diagnosis of diabetic and other peripheral neuropathy. The SSA records show that the Veteran’s disorder of the spine was also considered in the determination of whether the Veteran was disabled for SSA purposes. The medical treatment records dating during the relevant period show that the Veteran reported chronic hand pain. The Veteran underwent VA examinations as to his service-connected right fifth metacarpal disability and left thumb scar in November 2010 and May 2013. At the November 2010 VA examination, the Veteran had decreased strength, decreased dexterity/coordination, pain, and stiffness in the right hand. He also reported that he has swelling. On examination, he had reduced range of motion of the right little finger. Regarding the service-connected left thumb scar, the examiner found no pain, skin breakdown, limitation of motion, or other limitation of function associated with the scar. At the May 2013 VA examination, the Veteran had painful, limited range of motion, incoordination, and deformity of the right little finger. He had full grip strength in the right hand. The examiner opined that the service-connected right fifth metacarpal disability does not have a functional impact on the Veteran’s ability to work. Regarding the service-connected left thumb scar, the examiner found no pain, skin breakdown, limitation of motion, or other limitation of function associated with the scar. The examiner indicated that the service-connected left thumb scar does not impact the Veteran’s ability to work. In view of the above, the Board finds that during the relevant period prior to March 14, 2014, due to his service-connected disabilities the Veteran had pain, stiffness, swelling, and reduced coordination and strength in his right hand. His service-connected left thumb scar did not cause any functional impairment. The service-connected right fifth metacarpal disability may have limited his ability to lift, carry, grip, and perform fine manipulation for extended periods. However, he would still have been able to obtain and maintain a wide range of jobs that do not require such activities, such as those involving inspection work or security monitoring. In determining whether the Veteran was entitled to a TDIU during the relevant period prior to March 14, 2014, the Board has also considered the Veteran’s level of education and previous work experience. See 38 C.F.R. §§ 4.16. The Veteran has indicated that he has a high school education. The Board finds that the Veteran’s education level is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as inspection work or security monitoring. The Veteran has past work experience as process technician at a bakery. He has indicated that he stopped working in that occupation due to neuropathy, which is not a service-connected disability. His SSA disability records also show that he stopped working in that occupation due to nonservice-connected disabilities. There is no indication in the record that the Veteran could not perform his past work as a process technician during the relevant period prior to March 14, 2014, due to the disabilities that were service connected during that period. Thus, the Veteran’s work history is also not inconsistent with an ability to perform work of an unskilled or semi-skilled nature. The Board does not doubt that the Veteran’s service-connected disabilities limited his occupational functioning during the relevant period prior to March 14, 2014. However, as discussed above, during that period the Veteran retained the functional capacity to perform a wide range of jobs that do not require lifting, carrying, gripping, and performing fine manipulation for extended periods. Examples of such jobs include inspection work and security monitoring. The Board acknowledges the Veteran’s representative’s arguments in a February 2021 brief that the Veteran was awarded SSA disability benefits since September 2012 and has been unable to obtain and maintain gainful employment since March 2012, and that in March 2013 T. B., a third-party witness, said that the Veteran’s pain has had a negative effect on his mind. Regarding the Veteran’s receipt of SSA disability benefits, as noted above the award of those benefits was based on nonservice-connected disabilities, including diabetes mellitus, neuropathy, and a spinal disability. The SSA records do not reflect that the award of benefits was based in any part on the two disabilities that were service connected during the relevant period prior to March 14, 2014. The Board therefore finds the SSA’s conclusion that the Veteran was disabled from March 2012 to be unpersuasive in this case. Regarding T. B.’s March 2013 statement, the Veteran was not service connected for a psychiatric disability prior to March 14, 2014. Moreover, T. B.’s assertion that the Veteran’s pain affected his mind is vague and does not sufficiently describe an occupational limitation caused by the service-connected right fifth metacarpal or left thumb scar such that it may be determined that those disabilities caused functional limitation greater than those described above. Therefore, the Board also finds T. B.’s March 2013 statement to be unpersuasive. In conclusion, the evidence of record does not show that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities at any time during the relevant period prior to March 14, 2014. The preponderance of the evidence is against a finding of entitlement to a TDIU prior to March 14, 2014, the doctrine of reasonable doubt is not for application, and the appeal must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for PTSD is remanded. In a June 2020 rating decision, the AOJ granted the Veteran entitlement to service connection for major depression and obsessive compulsive disorder, which it combined for rating purposes with the previously service-connected unspecified trauma/stressor related disorder. The AOJ concluded that this was a total grant of benefits sought on appeal. The AOJ did not include the issue of entitlement to service connection for PTSD in a June 2020 supplemental statement of the case as to the Veteran’s appeal. A review of the record reveals that this arises from the Veteran’s March 2014 claim for entitlement to service connection for “PTSD, Depression, and Anxiety”, “Agoraphobia with Panic Attacks”, “Obsessive Compulsive Disorder – Tic Related”, and “Other Specified Tic Disorder”. Although the service-connected acquired psychiatric disabilities contemplate the Veteran’s claimed depression, anxiety, agoraphobia, panic attacks, and obsessive-compulsive disorder with tic, they do not contemplate the Veteran’s claim for entitlement to service connection for PTSD. Therefore, the issue of entitlement to service connection for PTSD remains on appeal despite the grant of additional benefits in the June 2020 rating decision, and the issue must be remanded for adjudication by the AOJ in a supplemental statement of the case. The matters are REMANDED for the following action: Readjudicate the issue of entitlement to service connection for PTSD. If the issue cannot be granted in full, provide the Veteran and his representative a supplemental statement of the case as to the issue and provide an opportunity to respond. A reasonable period should be allowed for response before the appeal, is returned to the Board. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.