Citation Nr: 21011316 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-08 864 DATE: March 1, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence has not shown that the Veteran’s service-connected disorders have made him unable to follow substantially gainful employment. CONCLUSION OF LAW The criteria to establish a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1967 to March 1971. In July 2020, the Board of Veterans’ Appeals (Board) remanded the Veteran’s TDIU claim for referral to the Director of VA’s Compensation and Pension Service for extraschedular consideration. The Director denied extraschedular entitlement in a December 2020 advisory opinion. Thus, there was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. 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 level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities may not be considered. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, supra. In order to grant a TDIU on an extra-schedular basis, the record must reflect that circumstances, apart from nonservice-connected conditions, place the claimant in a different position than other veterans with the same compensation rating. 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. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, supra. Requiring a Veteran to prove that he is totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word “substantially” suggests intent to impart flexibility into a determination of the Veteran’s overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Veteran’s service-connected disabilities include posttraumatic stress disorder (PTSD) rated 30 percent disabling, tinnitus rated 10 percent disabling, and bilateral hearing loss assessed as noncompensable (0 percent disabling). His combined disability rating has been 40 percent since July 14, 2010. As stated above, the Veteran does not meet schedular criteria for a TDIU but the Board will consider entitlement on an extraschedular basis under 38 C.F.R. § 4.16 (b). However, the Board finds the Veteran’s service-connected disabilities, standing alone, have not prevented him from obtaining or maintaining substantially gainful employment. Unfortunately, the claim must be denied. The record indicates that the Veteran has a high school education and last worked as a union laborer in August 2009. He reported that he was forced to retire in 2010 because the union ran out of work. In his application for a TDIU, he listed additional education in scaffolding and “line and rig” training. During a February 2015 VA psychiatric examination, the Veteran reported symptoms including depression, anxiety, weekly panic attacks, chronic sleep impairment, difficulty establishing effective relationships, impaired impulse control, persistent delusions or hallucinations, and neglect of personal appearance and hygiene. The VA examiner summarized the Veteran’s symptoms as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and thinking/mood. The Veteran reported being the sole caretaker for his wife of 30 years, who had severe medical problems due to brain tumors. He reported declining an opportunity to work for the post office because he could not deal with the social interactions. The examiner indicated the Veteran’s ability to work was further limited by his difficulty with memory and attention, controlling emotions, and organizing and prioritizing tasks. The examiner concluded that due to the Veteran’s psychological functioning and his wife’s increased dependency on him for care, it would be highly unlikely that he would be able to maintain adequate employment. Since 2015, the Veteran has consistently attended PTSD support group meetings through VA. VA mental health records show gradual improvement in the Veteran’s PTSD symptoms, including his mood, social functioning, attention, and memory. However, he continued to report stress from caring for his wife, whose condition had worsened and required in-home hospice care. At a February 2018 VA hearing loss examination, the Veteran reported difficulty hearing conversations in a crowd, high pitched noises, and being unable to hear the television or his wife when speaking from another room. He also reported tinnitus which was bothersome and could interfere with work. During audiological testing, the Veteran’s speech discrimination scores were 96 percent bilaterally. During an October 2018 VA psychology consultation, the Veteran described his mood as “happy,” reported he was satisfied with his life, and was hopeful about the future. He denied any difficulty hearing the examiner or experiencing visual or auditory hallucinations. The Veteran underwent various psychological tests which indicated moderate PTSD symptoms but did not indicate clinical depression. In a September 2020 VA psychiatric record, the Veteran reported his mental health was “excellent,” he was sleeping well at night, and he was catching up on housework and leisure time. He reported a reduced burden since his wife was moved to a local care facility. The VA psychiatrist indicated the Veteran was well-groomed and his concentration, attention, insight and judgment were fair to good. The Veteran described his mood as “really, really good.” The Veteran’s wife died in early 2021. In a December 2020 advisory opinion, the Director of Compensation and Pension Services acknowledged the Veteran’s functional limitations due to his service-connected disorders, including social difficulties, depression, anxiety, panic attacks, memory loss, disturbance of motivation and mood, and difficulty hearing. However, the Director concluded that these impairments alone do not cause the Veteran to be unable to obtain or maintain gainful employment. The preponderance of the evidence is against awarding a TDIU. While the Veteran has tinnitus and some difficulty hearing conversations, his impairments are not so severe as to prevent him from working. With respect to PTSD, the Board notes that the 2015 VA examiner concluded the Veteran unable to maintain adequate employment due to his wife’s increasing dependence on him, and his psychological functioning at that time. However, the record shows that the Veteran’s social and mental functioning, mood, and other mental health symptoms improved over time. Presently, the medical evidence does not show the Veteran’s service-connected disabilities alone cause him to be unable to perform the mental and physical tasks required by employment. Where, as here, the preponderance of the evidence is against the claim, it must be denied as a matter of law. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.