Citation Nr: 21012367 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 10-31 785 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The record contains no indication that during the entire period on appeal, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.10, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army Reserves from November 1968 to November 1970, including service in the Republic of Vietnam, and additional reserve service. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for posttraumatic stress disorder (PTSD) and assigned an initial 30 percent rating, effective October 14, 2008. The Veteran filed a timely notice of disagreement received by VA in April 2010. In July 2010, the RO issued a statement of the case. The Veteran’s substantive appeal was received by VA in July 2010. Following additional development, the RO issued a supplemental statement of the case in March 2011. In a January 2016 decision, the Board, in pertinent part, granted an initial rating of 50 percent, but no higher, for the Veteran’s service-connected PTSD and found that the issue of entitlement to a TDIU had been reasonably raised by the record and remanded that issue for further development. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court) the Board’s decision to grant a 50 percent initial rating but no greater for PTSD. The Court affirmed the Board’s decision in a June 2017 decision. The RO issued a supplemental statement of the case denying entitlement to a TDIU in November 2017 and the matter was returned to the Board. The Board remanded the matter again for further development in August 2020, and the RO issued a new supplemental statement of the case in October 2020. Entitlement to a TDIU. The Veteran seeks a TDIU. Neither the Veteran nor his attorney has provided any specific contentions. As described above, in its January 2016 decision, the Board found that the issue of entitlement to a TDIU had been raised by the evidence of record, particularly VA treatment records from September 2013, September 2014, and a March 2015 VA PTSD examination in which the Veteran reported he had stopped working in 2013 because of problems with concentration, memory, irritability, and pain. See Rice v. Shinseki, 22 Vet. App. 447, 450–51 (2009) (a claim for a TDIU, either expressly raised by the appellant or raised by the record, is not a separate “claim” for benefits, but rather, is part and parcel of the claim for an increased rating). VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified by the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id.  However, where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, at least one disability is rated at 40 percent or more and sufficient additional disability brings the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the 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. 38 C.F.R. §§ 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). The Veteran is currently in receipt of service connection for PTSD evaluated as 50 percent disabling from October 14, 2008; ischemic heart disease evaluated as 30 percent disabling from June 1, 2015; diabetes mellitus type II evaluated as 20 percent disabling from January 16, 2012; tinnitus evaluated as 10 percent disabling from July 29, 2015; and residuals of injury to muscle group XIX, to include abdominal scar on the right side, evaluated as 10 percent disabling from May 31, 2016. Combined, the Veteran is in receipt of a 50 percent rating from October 14, 2008, a 70 percent rating from June 1, 2015, and an 80 percent rating from January 16, 2020. Therefore, the Veteran does not meet the rating threshold for a schedular TDIU for the period prior to June 1, 2015, but does meet the schedular threshold thereafter. Thus, because the Board cannot award an extraschedular TDIU in the first instance, it will consider whether it is appropriate to remand for referral to the Director of Compensation to consider whether a TDIU on an extraschedular basis is warranted for the period prior to June 1, 2015. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001); 38 C.F.R. § 4.16(b). In addition, the Board will consider whether a schedular TDIU for the period beginning June 1, 2015. The Board finds that referral for consideration of an extraschedular TDIU prior to June 1, 2015, is not warranted because, upon weighing the evidence, the most probative evidence of record establishes that the Veteran’s service-connected disabilities did not prevent the Veteran from securing or following a substantially gainful occupation for that period. In addition, the Board finds that a schedular TDIU is not warranted for the period beginning June 1, 2015, because upon weighing the evidence, the most probative evidence of record establishes that the Veteran’s service-connected disabilities did not preclude the Veteran from securing or following a substantially gainful occupation for that period. Review of the evidence of record reveals that the Veteran has reported he last worked in 2013. See, e.g., September 2018 VA Treatment Record. Further, the Veteran has reported that he completed an 8th grade education; he did not graduate from junior high school. See, e.g., August 2014 VA Treatment Records; January 1983 Military Personnel Recorsd. Before being drafted, the Veteran worked in a box plant, where he worked for a total of 33 years until the plant went out of business in 2004. The Veteran was then employed as a warehouse worker from 2005 to 2013. In February 2010 the Veteran was afforded a VA PTSD examination. The Veteran told the examiner that he had had memory problems for about seven or eight years and felt that it was getting worse. The Veteran was employed, but did not work full-time because of the economy. The Veteran reported generally adequate performance on the job. The Veteran indicated that he did yard work in his free time. He was able to complete the activities of daily living, including managing his hygiene, taking care of basic cooking and cleaning tasks, driving, and managing his finances. The examiner opined that the Veteran presented with a mild to moderate impairment of functioning and mild to moderate impairment of occupational functioning. VA treatment records from April 2010 show the Veteran was concerned about his job security because the company he worked for was downsizing. VA mental-health treatment notes from June 2010 indicate the Veteran had a constant burning sensation in his head, which caused his “whole life” to be restricted. VA treatment records from September 2010 show the Veteran complained of daily burning pain in his head. The Veteran said that he was making mistakes at work because of the pain; he had been easily distracted and thought his attention had been poor. In October 2010, the Veteran reported that he was making mistakes at work, such as going to the wrong location or taking the wrong product, which he attributed to the burning pain in his head. November 2010 VA treatment records show the Veteran felt that the burning pain in his head was getting worse and began to interfere with his daily activities including work. A February 2011 VA mental-health note indicates the Veteran reported he was beginning to have trouble at work because a constant burning sensation in his head, which he reported had been present for many years, made it hard for him to concentrate. The Veteran said that he stayed away from people because of pain and aggravation. VA treatment records from March 2011 show the Veteran reported he was making a lot of mistakes at work, which the Veteran attributed to his pain. In March 2011 the Veteran was afforded a PTSD VA examination. The Veteran reported that he worked in a warehouse and was having difficulty on the job because of his memory. The Veteran stated that he was about to lose his job, but upon direct questioning admitted that he was not told so by anybody. In August 2011, the Veteran stated that his symptoms, notably the burning sensation in his head, were getting progressively worse and distracting him at work. The Veteran said the constant pain interfered with his ability to concentrate and that he was subsequently making mistakes at work. VA treatment records from October 2011 show the Veteran still had a burning sensation in his head and he was making mistakes at work. The Veteran said that he was unable to think of much else aside from the pain and was considering retiring. In December 2011, the Veteran continued to report that the burning sensation in his head was affecting his job due to an inability to concentrate or focus. VA treatment records from January 2012 show the Veteran experienced chronic pain and headache and had work-related stress, often working seven days per week and 50 or more hours per week. The Veteran reported his memory was poor and as a result he was making mistakes at work. The Veteran expressed that he was worried about getting fired. In March 2012 the Veteran again reported the burning sensation, saying it had not gotten any better. The Veteran stated that he was having more trouble on the job due to a lack of focus caused by the burning sensation in his head. In May 2012 the Veteran was afforded a diabetes mellitus VA examination. The examiner opined that the Veteran’s service-connected diabetes mellitus did not require regulation of activities and did not impact his ability to work. A May 2012 VA mental-health treatment record shows that the Veteran’s short-term memory remained poor, which was adversely affecting his work performance. The Veteran did not report any major changes in cognitive function. VA treatment records from August 2012 indicate that the Veteran worked from 3:30 p.m. to 1 a.m. with a 30-minute lunch. The Veteran reported that he had been written up for poor attentiveness. The Veteran denied taking sick leave apart from doctor visits. VA treatment records from May 2013 indicate the Veteran neither showed nor reported any changes in cognitive function. He reported that he was still working but making mistakes at work due to memory issues. In September 2013, the Veteran reported that he retired from his job the previous week. VA treatment records from June 2014 indicate that the burning sensation in the Veteran’s head was more likely than not a somatization of trauma pain from PTSD. September 2014 VA mental-health treatment records indicate that the Veteran reported he stopped working due to severity of pain and difficulty with concentration and short-term memory. No changes in cognitive functioning were seen or reported since the Veteran’s prior mental-health visit. The Veteran lived alone. He saw his grandchildren regularly and picked them up from school. The Veteran had a few friends and went fishing regularly. VA mental-health treatment records from March 2015 show that the Veteran reported that doing yardwork and cutting grass helped him feel better. In March 2015 the Veteran was afforded a VA initial PTSD examination. The examiner opined that the Veteran’s service-connected PTSD caused occupational and social impairment 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. The Veteran told the examiner that he had three or four friends with whom he socialized three to four times per week. He also saw his siblings a couple times per week. The Veteran stated that he fished weekly, cooked, cleaned, did yard work, watched television, read, spent time on the internet, attended church three times per month, exercised almost daily, and regularly picked up one of his grandchildren from school. The examiner indicated that the Veteran’s PTSD symptoms included anxiety, chronic sleep impairment, mild memory loss, impaired abstract thinking, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work and worklike settings. October 2015 VA mental-health treatment notes show the Veteran mostly stayed to himself at home other than pursuing necessary activities for domestic life, caring for his grandchild for up to an hour after school, and attending church. The Veteran also stated that he did his own yard work as needed and kept his house clean. VA mental-health treatment records from January 2016 show the Veteran reported that he kept fairly active with watching his grandchild every day after school. He also said he felt better when he kept himself busy around the house and that he looked forward to doing yardwork on the weekend. The Veteran reported that before his close friend and fishing buddy died, he would fish with him nearly every day, but that he had no interest in fishing since then. VA treatment records from March 2016 show the Veteran planned to resume fishing again. In August 2016, the Veteran was afforded a VA hearing loss and tinnitus examination. The VA examiner opined that the Veteran’s service-connected tinnitus did not impact the ordinary conditions of daily life, including the Veteran’s ability to work. The Veteran was also afforded a VA PTSD examination in August 2016. The VA examiner opined that the Veteran’s service-connected PTSD caused occupational and social impairment with reduced reliability and productivity. The Veteran reported that he had completed a 7th grade education. He further stated that he had last worked in 2013, when he retired because he was having problems with concentration and memory. The Veteran denied missing time from work due to mental-health issues in the last year that he worked. He said that he had problems with irritability and was short with coworkers. The examiner identified the Veteran’s PTSD symptoms as depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or worklike settings, inability to establish and maintain effective relationships, obsessional rituals which interfered with routine activities, avoidance of crowds and loud noises, and chronic pain in the side of his head. In August 2016, the Veteran was afforded a muscle injury VA examination. The VA examiner opined that the Veteran’s service-connected residuals of injury to muscle group XIX, to include abdominal scar on the right side, caused pain that limited the Veteran’s concentration, thus impacting his ability to work. VA treatment records from December 2016 indicate the Veteran reported he kept himself busy with keeping up his home and providing for his daily needs. October 2017 VA mental-health treatment notes indicate the Veteran stated he did yard work and projects around the house to stay busy. VA treatment records from September 2018 show the Veteran watched his grandchild after school and helped with the grandchild’s homework. VA treatment records from September 2019 indicate the Veteran did yard work, and he continued to help with his grandchild’s homework. November 2019 VA treatment records show that the Veteran picked up his grandchild from school daily and that he attended church regularly. In February 2020, the Veteran was afforded a VA diabetes mellitus examination. In pertinent part, the VA examiner opined that the Veteran’s service-connected diabetes mellitus did not impact his ability to work. The Veteran’s diabetes mellitus required regulation of activity insofar as the Veteran had to check his blood sugar once per day. Applying the relevant facts in this case to the legal criteria set forth above, the Board finds that the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation at any time during the period on appeal. The evidence, as detailed above, shows that the Veteran was employed at the same company from the beginning of the appeal period to September 2013. Although the Veteran reported that he experienced memory and concentration problems as a result of the pain caused by his service-connected disabilities, and asserted that he was thus making mistakes at work and feared he would be fired, the record does not indicate that the Veteran was actually unable to secure or follow a substantially gainful occupation. Rather, the Veteran held his job for several years before he chose to retire, and the Veteran admitted to the March 2011 VA examiner that he was never told that he would be fired because of his job performance. Although the Veteran reported in August 2012 that he was written up for inattentiveness at work, the evidence is silent as to any further remedial actions prior to his retirement in September 2013. As discussed above, except for a period of part-time work due to economic downturn, the Veteran worked a full-time schedule. Further, there is no indication in the evidence of record that the Veteran’s occupation prior to September 2013 was merely marginal, noncompetitive, or otherwise not substantially gainful. In addition, the Veteran told the August 2016 VA examiner that he had not missed work due to his service-connected PTSD in the last year that he worked. Further, the evidence reveals that the Veteran was not terminated from his employment, but rather chose to leave the workforce of his own volition approximately three years after he first indicated that his disabilities were affecting his job performance and roughly one year after he reported being written up. Although the effect of his service-connected disabilities may have been a factor that led to the Veteran’s decision to retire, it does not follow that the Veteran’s service-connected disabilities, on their own, actually prevent the Veteran from securing or following a substantially gainful occupation. In this regard, the Board has carefully considered the evidence of record, including the Veteran’s lay statements captured in VA treatment records recounted above, that he chose to retire because of memory and concentration problems due to pain associated with his service-connected disabilities. While the Board recognizes the limitations the Veteran faces due to his service-connected disabilities, these limitations were considered in the disability ratings he receives for such disabilities. Again, assignment of the schedular rating is in recognition of the functional limitations and impairment of earning capacity caused by the Veteran’s service-connected disabilities, and that rating contemplates the severity and overall effect the symptoms have on his life. The ultimate question at issue here, however, is whether the Veteran’s service-connected disabilities, without regard to any nonservice-connected disabilities, prevent him from securing or following a substantially gainful occupation; this has not been shown by the evidence of record. Further, the most probative evidence of record demonstrates that the Veteran’s service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation in the years since the Veteran’s retirement. As discussed above, the record shows that the Veteran was able to perform the activities of daily living, enjoyed keeping busy with yard work and home projects, and that—with the exception of a period during which he lost interest—he fished weekly or more often. The evidence also demonstrates that the Veteran picked up his grandchild daily after school and helped with his grandchild’s homework. The preponderance of the evidence thus demonstrates that the Veteran was able to perform physical tasks and to maintain concentration and memory sufficient to perform both physical and mental tasks despite the impairment caused by his service-connected disabilities. The Board notes that the Veteran has not provided evidence to the contrary. In its August 2020 remand decision, the Board directed the RO to ask the Veteran to submit a TDIU application, detailed information regarding his employment history, and authorization for VA to obtain pertinent records from the Veteran’s most recent employer. The RO made such requests in August 2020, but the Veteran has not responded to those requests and has not submitted a TDIU application or provided further evidence. Although VA has a duty to assist the appellant in the development of his claim, such duty is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the appellant also has an obligation to assist in the adjudication of his claim. “If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Id. at 195. In sum, the Board finds that although the Veteran reports that he chose to retire because his service-connected disabilities impaired his ability to work, the record contains no probative evidence upon which to conclude that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Questions of credibility notwithstanding, even assuming that the Veteran’s primary reason for retirement in September 2013 was due to symptoms of his service-connected disabilities, the most probative evidence establishes that he developed appropriate coping mechanisms and that he was capable of the mental and physical acts required by employment for the entire period on appeal. The Board finds that the preponderance of the evidence of record is against finding that the Veteran has been unable to secure or follow a substantially gainful occupation at any time during the period on appeal. Therefore, the benefit-of-the-doubt rule does not apply. For the foregoing reasons, the Board concludes that referral for consideration of an extraschedular TDIU prior to June 1, 2015, is not warranted, and a schedular TDIU for the period beginning June 1, 2015, is not warranted. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hillan Sosa, 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.