Citation Nr: 21011090 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-09 401 DATE: February 26, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran was not precluded from securing and following a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU rating have not been met for any period on appeal. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1962 to October 1966. The Veteran died in March 2017, and the appellant, who is his surviving spouse, has been substituted for the purpose of seeking accrued benefits based on a claim that was on appeal at the time of the Veteran’s death. This appeal to the Board of Veterans’ Appeals (Board) arose from a January 2014 rating decision, in which a Department of Veterans’ Affairs (VA) Regional Office (RO), inter alia, denied the Veteran’s TDIU claim. The Veteran timely appealed that decision. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). In July 2020, the Board remanded the claim for further development, to include obtaining medical opinion regarding the combined impact of the Veteran’s service-connected disabilities on occupational functioning. Entitlement to a TDIU VA assigns disability ratings by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The central inquiry for entitlement to TDIU 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 his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). VA regulations allow for the assignment of total disability ratings, where the rating under the rating schedule is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. If there is only one disability, it must be ratable at 60 percent or more. If there are two or more disabilities, they must merit a combined rating of at least 70 percent, with one condition rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Entitlement to a TDIU depends on the impact of a veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as work history, education, and vocational training. 38 C.F.R. § 4.16. A TDIU may be assigned, on an extra-schedular basis, to a veteran who does not meet the rating schedule requirements for a TDIU, if the veteran, by reason of his or her service-connected disabilities, is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(b). The Veteran is service connected for posttraumatic stress disorder (PTSD) at 30 percent from September 20, 2010, and 50 percent from March 7, 2012; facial scar and bilateral tinea pedis as noncompensable from September 20, 2010; and hearing loss at 50 percent and tinnitus at10 percent from July 26, 2012. The Veteran’s combined disability rating was 30 percent from September 20, 2010; 50 percent from March 7, 2012; and 80 percent from July 26, 2012. Thus, from July 26, 2012, the Veteran meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). As the Veteran does not meet the schedular criteria for a TDIU prior to July 26, 2012, the matter was referred to the Director of Compensation for an advisory opinion to address TDIU on an extra-schedular basis. For the reasons below, the Board concludes that the Veteran’s service-connected disabilities did not preclude him from securing and following a substantially gainful occupation, either before or after July 26, 2012. The Veteran had a high school education, and he reported that he worked as a slot machine operator at a casino until he stopped working due to his health issues in December 2006. In the January 2011 VA examination report, the examiner stated that the Veteran’s service-connected tinea pedis does not cause any limitation to function and should not cause any physical or sedentary limitation to work. She also stated that the Veteran’s scars cause no limitation of function. Regarding mental health conditions, she opined that these conditions do not significantly interfere with his normal activities. In the December 2011 VA examination report, the examiner stated that the Veteran’s mental health symptoms did not adversely affect his job performance. He stated that the Veteran reported he “was never fired from any position, and moved as the jobs ended and/or he was laid off. He denies any difficulty in terms of his employment due to mental health conditions.” In the June 2012 VA examination report, the Veteran’s mental health disorder was diagnosed as PTSD. Regarding occupational and social impairment, the examiner stated that the Veteran has occupational and social impairment with reduced reliability and productivity. The examiner reported that the Veteran stopped working in 2006 due to chronic obstructive pulmonary disease (COPD). In the November 2012 VA examination report, the Veteran stated that he has difficulty hearing people without visual contact and the tinnitus rings “all the time and drives him crazy.” In December 2013, the Veteran’s Social Security Administration (SSA) records were associated with the claims file. In a disability report dated December 2007, the Veteran reported that his COPD with emphysema and high blood pressure limited his ability to work. He stated that he last worked in November 2006 when he was terminated from his job. The Veteran’s physical residual functional capacity assessment (RFC) stated that he can perform exertional light work due to COPD. In a December 2013 VA psychiatric examination report, the examiner indicated that it was less likely than not that the Veteran’s PTSD produced unemployability. It was noted that he had worked for 13.5 years with only one noted negative event. His work attendance, co-worker relationships and work performance were described as good. In the report of the December 2013 VA audiology examination, the examiner opined that without hearing aids, speech understanding and communication are difficult in all environments; with hearing aids, the Veteran can hear fairly well in quiet situations where people are speaking at close range, but he would have difficulty understanding speech in noisy environments, especially with lack of visual cues. She also stated that tinnitus alone, while bothersome, did not preclude physical or sedentary work. Pursuant to the Board remand, a VA medical opinion was obtained in October 2020. Regarding his service-connected hearing loss, the examiner stated that although the Veteran had decreased progressive hearing loss in both ears, she stated that there is no evidence that the Veteran had sought audiologic care. She stated that “with proper hearing and or adaptive devices, the [V]eteran should be able to perform jobs that would not depend on spoken instruction, meetings, or telephone, but would be able to perform job duties that did not rely on auditory input/instruction.” Medical opinion regarding the effects of his service-connected PTSD on his employability was also obtained in November 2020. The examiner stated that the Veteran’s sleep is so disturbed that he is usually fatigued at work, making concentration and focus on work assignments difficult. She commented that the Veteran’s most recent PTSD examination in 2015 noted that his sleep was interrupted due to nightmares; nevertheless, all other symptoms indicated non-PTSD symptoms but more of an “adjustment disorder” due to the Veteran and his wife’s health conditions, which should have been diagnosed but was not. Moreover, she stated that review of the Veteran’s treatment notes in 2017 (shortly before he died) indicate that his PTSD had possibly resolved or was stable on medication. She also remarked that 2017 VA treatment records indicate that the Veteran’s mood had improved, and his only PTSD symptom was nightmares/waking up sweating. In January 2021, the Director provided an advisory opinion. The director considered the medical evidence and the Veteran’s statements, in light of his education and work history. The Director concluded that the separate and combined effects of the Veteran’s service-connected disabilities did not make him unable to secure and follow a substantially gainful occupation prior to July 26, 2012. The Board acknowledges the lay statements of the Veteran that he was unable to work. However, the evidence of record does not support that this is solely due to his service-connected disabilities. Moreover, the Veteran has not even contended that his service-connected conditions alone are sufficient to cause his unemployablity. Both in reference to obtaining SSA disability benefits and at his June 2012 VA examination the Veteran had cited his nonservice-connected COPD as the primary reason for his inability to obtain and maintain substantial and gainful employment. The Veteran also stated that he believed his PTSD and hearing loss contributed to his inability to go to work. While medical evidence showed that the Veteran’s sleep disturbances would cause fatigue at work, making concentration and focus on work assignments difficult, the Veteran was not found to be unable to perform his job due to these symptoms. Moreover, his PTSD mood improvement was noted, and 2017 treatment notes indicated that his PTSD had resolved or was managed with medication. (Continued on the next page)   Even combining these limitations with the functional impairments reported by the Veteran and his VA examiner during his audiological examinations (inability to hear without direct eye contact, difficulty hearing and understanding conversations, and constant ringing in both ears), the Board finds that the preponderance of the competent evidence fails to establish that the Veteran is unemployable due solely to his service-connected disabilities. As mentioned above, the central inquiry for entitlement to TDIU is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad, 5 Vet. App. at 529 (1993). While the Veteran may have other disabling conditions that are not service-connected, a TDIU is not warranted unless the service-connected conditions by themselves cause impairment that is sufficient to produce unemployability. As none of the evidence of record supports that he is unable to work due to his service-connected disabilities alone (PTSD, facial scar, bilateral tinea pedis, bilateral hearing loss, and tinnitus), the Board finds that entitlement to a TDIU is not warranted, and the appeal in this matter must be denied. See 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.