Citation Nr: 21012090 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-42 424 DATE: March 3, 2021 ORDER Entitlement to a total disability rating for compensation based on individual unemployability due to a service-connected disability or disabilities (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of a service-connected disability or disabilities. CONCLUSION OF LAW The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from December 1968 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter in February 2012 in order for the Veteran to clarify his employment history. The February 2012 Board remand stated: The Veteran filed an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) on August 26, 2010, indicating that he would be working until August 31, 2010. However, November 2010 VA clinical records note that the Veteran was working in construction and also employed at Walmart; in a July 2011 VA PTSD examination, the Veteran reported that he was working until one week prior when he retired due to fatigue; and VA treatment records dated between 2012 and 2016 consistently note that the Veteran was in construction and worked at Walmart. As such, the Board is unable to ascertain the Veteran’s employment history and remand for clarification is necessary. Within the remand directives, the Board added that the Veteran should clarify his employment since August 2010. One week later, VA provided the Veteran with an additional VA Form 21-8940 and requested that he complete the form in its entirety and return it to VA. The subsequent development was performed as required by the Board remand directive; however, no response has been received from the Veteran, who has not clarified his employment history or returned the VA Form 21-8940 provided to him. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has alleged that he was unemployable due to a range of PTSD symptoms, including anxiety, irritability, difficulty getting along with others, paranoia, and social isolation. TDIU Total disability will be considered to exist where there is present any impairment of mind and 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 for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Since March 8, 2017, the Veteran has been in receipt of a combined 100 percent schedular rating for all of his service-connected disabilities. The grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU rating moot, as a TDIU rating could, in certain circumstances, render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that a TDIU rating is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). At the present time, the Veteran does not have a 100 percent disability rating for any singular disability; however, within this decision, the Board has considered both whether the Veteran is entitled to a TDIU rating for the service-connected PTSD alone or if a TDIU rating is based upon the service-connected disabilities of PTSD and diabetes mellitus, which are the only two service-connected disabilities prior to March 8, 2017. The additional disabilities granted as of March 8, 2017 preclude the award of a TDIU rating for all the service-connected disabilities as of that date. Prior to March 8, 2017, the Veteran’s service-connected disabilities met the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) since July 30, 2010 when the Veteran was assigned a 70 percent disability rating for PTSD. The only other service-connected disability that the Veteran had during the period on appeal was type II diabetes mellitus, assigned a 10 percent disability rating as of June 29, 2012, and a 20 percent disability rating as of September 27, 2012. Thus, the Veteran’s relevant combined rating prior to March 2017 was 70 percent as of filing his TDIU claim, raised to 80 percent as of September 27, 2012. However, the Board notes the presence of a significant number of separate disabilities for which the Veteran is not service-connected, or was not service-connected for prior to March 8, 2017, and, therefore, which cannot be considered for purposes of the Veteran’s TDIU claim. These disabilities include coronary artery disease; peripheral vascular disease of the lower extremities; peripheral neuropathy of the lower and upper extremities; hearing loss; tinnitus; sleep apnea syndrome; hypertension; carcinoma of the colon and bowel obstruction; headaches; and a liver condition. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). 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 nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran was precluded from securing and following substantially gainful employment due to the service-connected PTSD or the service-connected PTSD and diabetes mellitus. The reasons follow. Entitlement to a TDIU rating prior to March 8, 2017 The Veteran has not alleged significant physical limitations resulting from his diabetes, which is consistent with what he documented in the VA Form 21-8940 received in August 2010, wherein he wrote that it was his PTSD that precluded substantially gainful employment. The Veteran had his hemoglobin A1c measured between 6.3 and 6.9 percent during the relevant period, indicating adequate blood sugar control without the need for insulin injections or intensive treatment. The Veteran underwent a VA examination in August 2012 for assessment of his diabetes. The examination report indicated no hospitalizations for issues associated with diabetes and he was found to have no complications or other conditions secondary to this disability during the relevant period. At the time, his diabetes was managed only by a restricted diet. Although it was indicated that the Veteran needed to exercise regularly and avoid overheating and dehydration, it was further indicated that the Veteran’s diabetes did not impact his ability to work. The Veteran underwent another VA examination in March 2013, which reflected generally stable functioning. The Veteran was now prescribed an oral hypoglycemic agent, but it was noted that the Veteran did not require regulation of his activities, that he had no associated complications, and that the diabetes did not impact the Veteran’s ability to work. These findings were repeated on VA examination in June 2015 and again in August 2017. The evidence of record shows that the Veteran is prescribed anti-depressants that improve his mood and functioning, but he has otherwise received only periodic and routine treatment at VA without intensive, recurrent individual psychotherapy, and without the need for urgent or inpatient care. On examination in July 2011, it was indicated that the Veteran gets snappy and anxious if he does not take his medications and that he does not understand outcomes of his behavior, but mental status findings were largely normal, indicating the Veteran to be alert and oriented with unremarkable thought content and thought process, good impulse control, average intelligence, intact insight and attention, and no delusions. He was described as cooperative with appropriate behavior. He reported social isolation but indicated that he goes to church twice a week and fishing once per week. The examiner suggested that the Veteran was independent in his activities of daily living with associated problems only relating to nonservice-connected issues of reduced vision and incontinence. The Veteran underwent a VA examination in February 2012. The examiner summarized the Veteran’s level of impairment relating to PTSD to be occupational and social impairment with reduced reliability and productivity. The examiner stated that the Veteran has multiple medical conditions besides PTSD that would impair his full employability. The Veteran continued with periodic check-ups and medication management without indications of significant symptom exacerbations, with treatment records generally describing the Veteran as cooperative, polite, and respectful, despite notes reflecting some mood fluctuations, nightmares, and paranoia. In May 2015, the Veteran reported hearing voices telling him to do things, but such symptoms were sparsely reported and did not appear to impact the Veteran’s functioning. On mental status examination, he was fully alert and oriented with a goal-directed thought process, appropriate insight, adequate judgment, and no hallucinations elicited. The Veteran continued to record predominantly unremarkable findings on mental status examination through 2016 and treatment notes reflected the Veteran’s continued independence in activities of daily living. In July 2016, the Veteran reported no psychiatric complaints and reported that he traveled to Germany for the month of June 2016 to visit family and further stated that he would be returning to Germany in September. Treatment records continued to show stable functioning in 2017, despite continued reports of poor sleep, mood swings, hypervigilance, and social isolation. The Veteran reported that he does outdoor activities and enjoyed doing yardwork. Regarding the Veteran’s education, training, skill, and work history, an evaluation relating thereto has been hindered by the Veteran’s failure to submit a supplemental VA Form 21-8940, which was provided to him in February 2020 and requested to be returned, pursuant to the February 2020 Board remand. The Board notes that the duty to assist a claimant is not a one-way street, and the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991); 38 U.S.C. § 5107(a). However, the Veteran’s treatment records provide some pertinent information regarding his work history. For example, medical notes indicate that the Veteran worked as an electrician in Germany for 30 years before returning to the United States in 2001. Although some treatment notes indicate that the Veteran finished only the tenth grade, the Veteran reported that he completed four years of high school on his original TDIU application in August 2010. At that time, he listed his only prior employment as working as a Stocker for Walmart from 2001, indicating that he would stop working at the end of August 2010. A VA Form 21-526, Veteran’s Application for Compensation and Pension, received in July 2000 shows he reported working in construction and in customer service. However, as noted in the February 2020 Board remand, there is reason to believe he continued to work at Walmart and/or in other capacities thereafter. In November 2010, the Veteran indicated that he was still planning on quitting his job at Walmart, but that he had yet to do so. In January 2011, the Veteran complained of bilateral upper arm pain and stated that he was retiring at the end of the month, saying that his body “won’t take the work any longer.” In May 2011, the Veteran reported that he still worked at Walmart, “pulling heavy pallets.” He stated that “it is killing me.” At a July 2011 VA examination, the Veteran reported that he had retired due to fatigue just one week prior. The examiner noted that the Veteran retired due to colon cancer, muscular pain, and bladder difficulties. While the Veteran reported he was retired thereafter, treatment records for several years continued to indicate that the Veteran worked in construction and at Walmart. An August 2011 statement submitted by the Veteran’s caretaker/girlfriend indicated that physical limitations were the primary reason he was unable to maintain employment, citing to the Veteran’s arthritis, difficulty using his extremities, and incontinence. She only suggested a worsened mental state after his reported retirement in July 2011. Although the Veteran originally reported in August 2010 that he was unable to continue working due to increasing difficulty dealing with authority figures and coworkers, as well as increased depression and anxiety, at a time when he admitted to still being gainfully employed, the Veteran’s subsequent statements indicate that the heavy physical labor associated with his work was a primary factor in his decision to retire, which related to nonservice-connected disabilities not for consideration herein. The Veteran’s consistent employment history reflects that he is dependable and has a capacity for learning, training, and adaptation. These skills do not appear to have been hindered by the Veteran’s service-connected disabilities and would have facilitated the Veteran’s return to substantially gainful employment prior to March 2017. As to the Veteran’s physical capabilities, the evidence supports a finding that the Veteran was physically capable of performing substantially gainful employment. His only service-connected physical disability during the period at issue was diabetes. The Veteran required only routine, conservative treatment and diabetes was repeatedly found not to impact the Veteran’s ability to work. The record does not indicate diabetes limited the Veteran’s independence in activities of daily living, and he continued to travel internationally, perform outdoor activities, and do yardwork. Treatment notes indicate that physical limitations contributing to the Veteran’s reported retirement in 2011 were associated with separate disabilities for which the Veteran was not service-connected during the relevant period, including arthritis, colon cancer, and incontinence. As stated above, within the August 2010 TDIU application, the Veteran had listed only his PTSD as precluding substantially gainful employment and not both the PTSD and diabetes mellitus. Accordingly, the weight of the evidence does not indicate the Veteran’s service-connected diabetes mellitus restricted his ability to perform substantially gainful employment during the relevant period. As to the Veteran’s mental capabilities, the record indicates him to be capable of performing substantially gainful employment. Despite recurrent symptoms of depression, irritability, anxiety, alleged social isolation, and sleep difficulties, the Veteran has routinely recorded normal findings on mental status examination and his symptoms are improved with the use of medication. The record generally reflects the Veteran to have a logical thought process, average intelligence, intact judgment and insight, normal behavior, no noted deficits in memory, concentration, or cognition, and no perceptual abnormalities or suicidal ideation. Although the Veteran has indicated a history of difficulty getting along with others, the record shows him to be described as cooperative, calm, respectful, and polite. The Veteran was noted to have friends, to attend church, and to maintain close relationships with family, whom he travels internationally to visit in Germany. Accordingly, it seems that the Veteran’s PTSD can be accommodated by restricting the Veteran from work that requires frequent social interaction with the general public. As such, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran’s physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran was capable of work that would result in income at the level of substantially gainful employment. For example, the Veteran’s service-connected PTSD alone or in combination with the diabetes mellitus during the relevant period would not have prevented the Veteran from pursuing his past work as an electrician, work which would not require frequent interaction with the public and which was not precluded due to the Veteran’s diabetes, as it did not cause the Veteran any occupational limitations. Additionally, the Veteran’s service-connected PTSD alone or in combination with the diabetes mellitus would not preclude the Veteran from occupations such as a warehouse worker, or assembly line worker, positions that would be repetitive, have structure, and would not necessarily involve new tasks, novel concepts, or require significant social interaction. This is evidence against a finding that the Veteran was precluded from all forms of substantially gainful employment due to the service-connected PTSD or the service-connected PTSD with diabetes mellitus. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that Veteran was precluded from all forms of substantially gainful employment either due to PTSD or in combination with diabetes mellitus and, therefore, was not entitled to a TDIU rating. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU rating due to a service-connected disability or disabilities is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.