Citation Nr: 21012624 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-20 300 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to December 3, 2013, to include on an extraschedular basis, is denied. FINDING OF FACT Prior to December 3, 2013, the preponderance of evidence is against finding that the Veteran's service-connected disabilities resulted in total unemployability. CONCLUSION OF LAW Prior to December 3, 2013, the criteria for TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to August 1969. His claim comes before the Board of Veterans' Appeals (Board) on appeal of a June 2011 Department of Veterans Affairs (VA) rating decision. This case was previously before the Board in August 2018, at which time the Board remanded the issue of a TDIU prior to December 3, 2013 for referral to the Director of Compensation Service for extraschedular consideration. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Entitlement to a TDIU prior to December 3, 2013 The Veteran asserts that his service-connected disabilities prevented him from securing and following a substantially gainful occupation prior to December 3, 2013. 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. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341 (a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered as one disability. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran does not meet the schedular requirements for a TDIU prior to December 3, 2013, as his combined evaluation is 50 percent from August 24, 2010 to December 3, 2013: the Veteran is service-connected for post-traumatic stress disorder (PTSD) as 30 percent disabling; left quadriceps muscle strain as 10 percent disabling; right quadriceps muscle strain as 10 percent disabling; right external oblique muscle strain as 10 percent disabling; and linear scars of the right and left lower extremities and abdomen as noncompensable. Therefore, the Board finds that the Veteran did not meet the percentage requirements under 38 C.F.R. § 4.16(a) prior to December 3, 2013. In exceptional circumstances, where the Veteran does not meet the percentage requirements under the schedular criteria, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. Such cases are referred to the Director of Compensation Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners' conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment. As noted above, the Board referred this claim to the Director of Compensation Service for extraschedular consideration in its August 2018 remand. In October 2020, the Director of Compensation Service evaluated the Veteran's TDIU claim under the provisions of 38 C.F.R. § 4.16(b). The Director concluded that during the period prior to December 3, 2013, the Veteran was not found to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Director explained that the Veteran is shown to have retired in 2009 in lieu of being laid off; the evidence does not indicate that the Veteran discontinued working, or was asked to discontinue working, due to the service-connected conditions. As no service-connected disabilities have been identified either individually or collectively as the sole reason for the Veteran's unemployability, the Director found that a TDIU is not warranted on an extraschedular basis. The Board can review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination. Anderson v. Shinseki, 22 Vet. App. 423 (2008). Thus, the question before the Board is whether the Veteran's service-connected disabilities precluded substantial gainful employment for which his education and occupational experience would have otherwise qualified him prior to December 3, 2013. In this regard, the Board notes that, for a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. For the reasons discussed below, the Board finds that throughout the relevant appeal period, the evidence does not show that a TDIU on an extraschedular basis is warranted. On his application for a TDIU, received by VA in August 2015, the Veteran contended that he has been unable to secure and follow substantially gainful employment since he retired in 2009. In his statement, the Veteran described posttraumatic stress disorder (PTSD) as the disability that primarily impacted his ability to work when he was employed though he did not indicate that he left his job due to disability. The record reflects that the Veteran last worked as a calibration support technician for the United Space Alliance until he retired in October 2009. Further, the record shows that the Veteran graduated high school and attended college for one year in the 1970’s but did not continue. No other education or specialized training is noted. Although the Veteran is unemployed, the objective medical evidence of record fails to establish that he was precluded from employment due to service-connected disabilities prior to December 3, 2013. Evidence on record indicates no concessions were made for the Veteran due to age or disability during his career, and the Veteran lost no time due to disability in the year before retirement. At a March 2011 VA PTSD examination, the Veteran described experiencing low motivation which affects chores and eating meals regularly as well as sleep disturbance. The Veteran informed the examiner that he had worked with the United Space Alliance for 25 years in the Calibration and Clean Lab cleaning instruments on the shuttle. He reported working with a group but having limited interchange with people. He told the VA examiner he retired on an early buy out before lay off that he was eligible for by age or duration of work. The examiner opined that the Veteran’s PTSD did not result in total occupational and social impairment. The Veteran’s PTSD symptoms do not result in deficiencies in judgement thinking, family relations, work, mood or school and that the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning. At a December 2013 private psychological evaluation, the Veteran reported that he left work after multiple explosive incidents and that he got in fights with boss, stating that he was irritable and quick to snap. He described working at about 12 different jobs after returning from Vietnam because he had an attitude and felt the civilians didn’t understand him. He tended to take jobs which kept him isolated from others. In January of 1985, he began work at the Space Center where he remained until October of 2009, where he could no longer tolerate any more interaction with others and management. In a March 2014 VA PTSD examination, the Veteran reported moved from job to job after returning from Vietnam due to conflict with peers and supervisors and that he eventually retired from his position as a calibration support technician due to his PTSD symptoms and the opportunity to leave early during shut down. During the period in question, the Veteran underwent VA examinations for his other service-connected disabilities, including muscle strains and scars (characterized as scars at the time of the December 2010 examination). However, the VA examiner found that these disabilities did not impact the Veteran's ability to work, opining that the scars had no significant effects on the Veteran’s occupation. The Veteran's VA treatment records for the relevant period were also reviewed. The Board notes that the Veteran's treating clinicians did not suggest he is unemployable at any time due to his service-connected disabilities. Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation at any time from August 24, 2010 to December 3, 2013. The Board recognizes that the Veteran asserts that his service-connected disabilities prevent him from securing or following any substantially gainful employment. However, the available evidence shows that when he last worked, the Veteran did not lose any time at work due to a service-connected disability. Moreover, his employer denied making any concessions for him due to a disability. In multiple lay statements, the Veteran indicated that he had resigned from his job due to his PTSD symptoms but none of the clinical evidence from the relevant period identified symptoms that rendered the Veteran unable to work. While the Board acknowledges that the Veteran has not worked for the past several years and has a limited education, the Board finds that the Veteran has not presented sufficient evidence that his service-connected disabilities were so debilitating as to preclude all forms of employment for the period prior to December 3, 2013. In making this determination, the Board acknowledges that the Veteran's service-connected disabilities certainly cause him some level of functional impairment. For example, his PTSD causes impaired sleep, fatigue, and irritability symptoms that would undoubtedly interfere with productivity in a workplace setting as described in his statements describing disagreements with his supervisor. However, the Board does not find that his PTSD or any service-connected disabilities resulted in total occupational impairment, rendering the Veteran completely unable to secure and follow a substantially gainful occupation prior to December 3, 2013. None of the Veteran's VA or private examiners have suggested that his service-connected disabilities, either solely or in combination with each other, precluded him from engaging in substantially gainful employment prior to December 3, 2013. The Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for the disabilities compensate the Veteran for such impairment. Therefore, as the Veteran has not provided any competent and credible evidence that his service-connected disabilities, either singly or combined, prevented him from securing or following any substantially gainful employment for the period prior to December 3, 2013 the Board finds that entitlement to a TDIU on an extraschedular basis is not warranted. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected PTSD prevented him from securing or following a substantially gainful employment from August 24, 2010 to December 3, 2013. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rosenthal, Ariana 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.