Citation Nr: 21012494 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-20 204 DATE: March 4, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.   FINDING OF FACT The Veteran’s service-connected disabilities do not prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2008 to April 2011. The case is on appeal from a decision by the VA Regional Office (RO). In May 2016, the Veteran testified at a Board hearing. The claim was remanded by the Board in February 2018 for further development. In an October 2019 decision, the Board denied the claim for a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an October 2020 Joint Motion for Partial Remand (JMR), the Court issued an October 2020 Order that vacated the portion of the Board’s decision that denied a TDIU and remanded the claim back to the Board for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall 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 addition, 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. Therefore, rating boards should submit to the Director for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director’s decision in the first instance before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran’s history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Court in Ray specifically noted that, while it looked to the standards and guidelines used by the Social Security Administration (SSA), it was not adopting or imposing those guidelines on VA. Ray, 31 Vet. App. at 72. Facts The Veteran contends he is unable to work due to his service-connected disabilities. At the May 2016 Board hearing, the Veteran’s representative indicated that records from the SSA show that he is entitled to unemployability based on his service-connected conditions. The Board notes to date, a completed TDIU application has not been submitted to VA; however, the record shows that the Veteran has not worked since his separation from service. Procedurally, as noted above, the TDIU claim was denied by the Board in its October 2019 decision. The October 2020 JMR and Order vacated the decision and remanded the claim back to the Board. The parties agreed that the Board did not fully address the Veteran’s history, education, skill and training, along with the favorable October 2013 SSA decision. The Veteran was afforded a March 2013 VA psychiatric examination in which the examiner indicated his posttraumatic stress disorder (PTSD) causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner reported symptoms of depression, anxiety, panic attacks, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, as well as difficulty in establishing and maintaining relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran was afforded a March 2013 VA audiological examination in which the examiner opined his hearing loss impacts his ordinary conditions of daily life but does not impact his ability to work. An April 2013 VA right shoulder examination revealed the Veteran has less movement than normal, weakened movement, excess fatigability and pain during movement. With regard to functional impairment, the examiner opined “the Veteran is not working due to his current pain condition due to his shoulder and etoh.” As noted, the Veteran’s record includes SSA documents and a decision in which the SSA determined the Veteran to be totally disabled under SSA rules effective May 31, 2011, due to his anxiety related disorder. SSA records suggest the Veteran has PTSD, anxiety and depression. His highest education obtained is listed as a GED, he has no other special education or training, and his employment history prior to service includes working in a warehouse from January 1995 to December 2007. This employment required the Veteran to operate a forklift, move pallets of merchandise and stack empty pallets by hand. He frequently had to lift up to 10 pounds. The Veteran reported in the SSA records that he is able to cook dinner, do laundry, feed his cats and exercise, including running. He noted dressing is painful for him but can be performed, and he has no problem bathing, caring for himself, shaving and using the restroom. He stated his depression has reduced his appetite, he has lost a lot of weight and he requires reminders to shower. He further reported he can walk, ride in a car and go shopping, but cannot pay bills. He stated his psychiatric symptoms make it difficult for him to think clearly. He reported difficulty with memory, completing tasks, concentration, understanding and getting along with others. He noted he drinks alcohol to reduce his pain and to “drown out nightmares.” During the May 2016 Board hearing, the Veteran reported his right shoulder disorder hurts when he mows the lawn or rakes. He stated he would not be able to perform the occupational tasks he did prior to service, as the noise and people he had to interact with would exacerbate his psychiatric disability. He testified his PTSD prevents him from shopping, cooking, cleaning and doing laundry. Following the August 2016 Board remand, the Veteran was afforded an October 2016 VA right shoulder examination, in which the examiner indicated the Veteran’s right shoulder impacts his ability to work, including causing pain with overhead lifting. The Veteran was afforded an October 2016 VA psychiatric examination in which the examiner reported his PTSD symptoms have a moderate impact on his ability to function in an occupational environment. The examiner noted the psychiatric symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational asks, although generally functioning satisfactorily. He stated the Veteran’s PTSD symptoms would decrease work efficiency and his ability to perform occupational tasks only during periods of significant stress. Following the February 2018 Board remand, the Veteran was afforded an August 2018 VA right shoulder examination. The examiner indicated the Veteran’s activities involving use of the right shoulder are impaired and he limits aggravating activities. Analysis In consideration of the evidence, The Board finds that the Veteran’s service-connected disabilities have not prevented all substantially gainful employment. The Board takes note of the Veteran’s contentions and the impairment caused by his service-connected disabilities, including his PTSD and right shoulder disorder. The Board further acknowledges the SSA decision which determined the Veteran is totally disabled from working due to his anxiety related disorder. However, the evidence related to the Veteran’s service-connected disabilities, including the VA examination reports, does not support that he is prevented from securing or following substantially gainful employment solely due to his service-connected disabilities. The Board notes the Court’s precedent that the sole fact that a veteran is unemployed or has difficulty obtaining employment is not sufficient to warrant an award of TDIU. A high rating, alone, is recognition that the impairment makes it difficult to obtain or keep employment. Thus, 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 v. Brown, 4 Vet. App. 361 (1993). As noted, SSA found the Veteran is totally disabled from working due to his anxiety related disorder. However, although the Court has looked to SSA rules, including in Ray, it has not, to date, imposed the SSA requirement that certain work, or a certain occupation, be identified in the U.S. economy which the Veteran is capable of performing when determining employability. The medical evidence shows the March 2013 and October 2016 VA psychiatric examiners found the Veteran’s PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Further, the October 2016 VA right shoulder examiner indicated the Veteran’s right shoulder impacts his ability to work, including causing pain with overhead lifting. This medical evidence is suggestive of less severe psychiatric and right shoulder disabilities. Additionally, the SSA records include reports that the Veteran is capable of cooking, doing laundry, exercising, bathing, caring for himself and using the restroom. The medical evidence of record, along with the SSA records noted herein, do not support a TDIU. Based on the Veteran’s education level of a GED and his background of working in a warehouse for approximately 13 years, the Board finds that he has the skills necessary for a broad range of work opportunities, including unskilled or semi-skilled work. Moreover, such work would be consistent with his education, background, skills and experience. (Continued on the next page)   The Board is sympathetic to the impact the Veteran’s service-connected disabilities have on him, both professionally and personally. However, those problems have been compensated by the schedular ratings for such disabilities. See Van Hoose, 4 Vet. App. at 361. Moreover, while these disabilities caused some economic impairment, his assigned disability ratings contemplate his level of occupational impairment. A TDIU claim is not purely a medical question. Here, the Board has considered both the relevant medical evidence, as well as the non-medical evidence, such as education, work history and lay statements. Thus, the Board has addressed the concerns of the October 2020 JMR. Accordingly, the Board finds that the Veteran’s service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. Thus, the preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, a TDIU is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.