Citation Nr: 21013637 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 11-30 813 DATE: March 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran’s service-connected disabilities render her unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1989 to February 1990, November 1990 to October 1992, and from January 1998 to August 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2015 by the Department of Veterans Affairs (VA) Regional Office in Lakewood, Colorado. The Veteran testified at a hearing before the undersigned in June 2016. A transcript of that hearing has been associated with the record. This claim was previously before the Board in September 2016, November 2018, and October 2020. In October 2020, it was remanded for further development, to include obtaining an addendum opinion concerning the Veteran’s employability. Such opinion was obtained in November 2020; thus, the Board finds there has been substantial compliance with its instructions and it may proceed with deciding the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). The Veteran contends that her service-connected disabilities render her unable to secure or follow a substantially gainful occupation. Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 disabilities. Provided, that if there is only one such disability, this disability shall be ratable as 60 percent or more, and that, 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. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to her age, or to the impairment caused by non-service-connected disabilities. Id. In reaching such a determination, 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). Additional considerations are noting that for a TDIU, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.17. During the appeal period, service connection has been in effect for the following disabilities: somatic symptom disorder, rated at 50 percent disabling; sinusitis, rated at 50 percent; fibromyalgia, 40 percent; eczema, 30 percent; bronchitis, 10 percent; and recurrent bladder infections, vulvar intraepithelial neoplasia and right knee scar, each rated as noncompensable. Her combined disability rating was 90 percent throughout the appeal period, and the schedular criteria is met. 38 C.F.R. § 4.16 (a). In a claim for TDIU, the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator; here, the Board. See 38 C.F.R. § 4.16 (a); see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”). In the instant matter, the record reflects that the Veteran worked full-time up to 2010, and then worked again briefly in 2020. She is a high school graduate who has taken some college courses in the past and is currently enrolled in such. She speaks 5 languages and has worked in the past as a nursing assistant, census taker, and French language interpreter. In March 2015, just prior to filing her claim for TDIU, the Veteran underwent a VA examination and reported that she last worked in 2010 but quit due to her physical conditions at the time. The examiner noted that the Veteran easily engaged in verbal altercations with others; however, her thought processes and communication are not impaired. Her social functioning was impaired due to low frustration tolerance of others. Her orientation, long-term memory, attention, concentration, language skills, and general concentration were grossly intact. In her initial application for TDIU in August 2015, the Veteran claimed that due to her “legs, lungs and feet” she was unable to work. At that point, she had last worked in 2010 as a linguist. A November 2015 VA examiner determined that the Veteran’s functional ability to work was hampered by her inability to walk more than 100 feet. At a March 2016 VA mental disorders examination, the Veteran explained that she quit working to take care of her encephalitic daughter. The Veteran was able to dress and feed herself and used cane to walk but was able to attend her children’s sporting events and also volunteer. The examiner found an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although the Veteran was generally functioning satisfactorily. It was determined that the Veteran would best work in an environment in which she could work independently without close supervision, or interaction with the public. At the June 2016 hearing before the Board, the Veteran testified that she was constantly fatigued and had issues with memory. She explained that she tried to find employment in the past but was precluded from working by her pain, fatigue, and associated hospitalizations. When working as a nurse’s aide in the past, she specifically took evening shifts so that she could rest. She explained that she last worked in a temporary role for the U.S. Census, and experienced a lot of pain during the job. She testified that she attempted to find new employment but that her level of pain caused difficulty in doing so. In December 2017, the Veteran submitted a new application for TDIU. At that time, she reported having completed 3 years of college. She applied in September of that year for a job at a call center but was not hired. In an application for Social Security Administration disability benefits, the Veteran reported that she was unable to lift, stand, reach, walk, kneel, climb stairs, complete tasks or get along with others due to her psychiatric disability and disabilities of her lower extremities. She was ultimately found not to be disabled for Social Security Administration purposes, as it was determined she would be able to work in an environment that was less demanding than those in the past. The Veteran could still work in a sedentary position without frequent co-worker or public interaction. The Veteran underwent multiple VA examinations in January 2018. As part of a mental disorders examination, the VA psychologist determined that the Veteran’s psychiatric disability would not preclude her from working in employment that required routine engagement with basic tasks, but that her behavioral symptoms would interfere. Specifically, the Veteran’s “preoccupation with physical symptoms and her perceived need to seek frequent treatment for those conditions” would cause periodic problems that would require some time away from work. The psychologist determined that the Veteran’s excessive thoughts, feelings and behaviors about her multiple physical conditions were due to her service-connected psychiatric disability. Symptoms such as unstable and intense interpersonal relationships, impulsivity, irritability, anxiety, chronic feelings of emptiness, inappropriate intense anger with frequent displays of temper, and stress-related paranoid thinking were all due to a personality disorder, for which service connection had not been granted due to the legal impossibility of such. Despite all of these symptoms, the VA psychologist determined that the Veteran would be able to engage in simple tasks in a loosely supervised environment. In the examination concerning the Veteran’s service-connected sinusitis, the condition had resolved, and the examiner determined that the Veteran would be able to perform work tasks without restrictions or limitations. In 2019, the Veteran was awarded VA education benefits and enrolled in college classes to obtain the training to become an Avionic Electrical Technician. Subsequent VA treatment notes show the Veteran was working with VA employment and vocational assistance to find a job. A July 2020 VA treatment note indicated that the Veteran had been hired to work at a resort hotel. In a November 2020 mental disorder examination report, a VA psychologist determined that the Veteran would experience 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. He noted that she recently quit working as a security guard at a courthouse due to leg pain. In a concurrent examination related to the Veteran’s fibromyalgia, she reported ongoing aches and pain throughout her body, constant in nature. The examiner determined that the condition impacted the Veteran’s ability to work in that she experienced pain and also fatigue due to an inability to sleep due to the pain. It was noted that she was still a student at that time. Based on this evidence, it is clear to the Board that the Veteran is likely able to obtain and maintain substantially gainful employment, as her service-connected disabilities as a whole do not render her unemployable. The evidence of record reflects that she can perform job duties which require minimal physical activity. In addition, upon psychological examination the Veteran did not have issues with judgment, hygiene, disorientation, or other factors which would cause disruptions in a workplace. The January 2018 VA examiner found that any interpersonal issues experienced by the Veteran which would cause issues with co-workers, such as impulsivity, inappropriate anger, and paranoiac thinking, were due to her non-service-connected personality disorder. See Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992) (TDIU is to be determined without regard to the non-service-connected disabilities). While the Veteran’s disabilities interfere somewhat with her ability to work, the competent opinions of record indicate that they do not cause such functional impairments so as to prevent her from working. Every examiner asked to address the question of employability has found her able to work, which supports the Board’s finding. In addition, the Veteran was able to find employment at a hotel and as a security guard even after a long period of unemployment. She continues to attend college classes in pursuit of an advanced degree and by all indications is able to function among her peers and successfully pass the rigorous study required of college-level study. In addition, although it is not binding on VA, the fact that the Social Security Administration found that the Veteran was not disabled due to her disabilities is further support for the Board’s determination. Accordingly, based on the evidence of record, the Veteran still possesses some residual employment capacity, and thus is not considered unable to secure or follow substantially gainful employment by reason of her service-connected disabilities. In rendering this decision, the Board has considered the competent and credible evidence provided by the Veteran with regards to the contention that her service-connected disabilities render her unemployable. However, as unemployability is a legal determination for the finder of fact, the Board places the most probative weight on the interpretation made of the medical evidence within the record, reflecting that the Veteran is not unemployable due to his service-connected disabilities alone. 38 C.F.R. § 3.100 (a)(delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”). The Board took into consideration the list of potentially relevant factors to be considered in determining whether a veteran can secure and follow a substantially gainful occupation under 38 C.F.R. § 4.16 detailed by the United States Court of Appeals for Veterans Claims in Ray v. Wilkie, 31 Vet. App. 58 (2019). As discussed above, while her service-connected disabilities do result in difficulties with employment, they are not so severe as to render her unable to secure or follow substantially gainful employment. Further, the record reflects that such impairment has been adequately compensated by the current schedular rating for her service-connected disabilities. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321 (a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: “[g]enerally, the degrees of disability specified 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.” See also Van Hoose, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, the preponderance of the evidence is against the Veteran’s claim of entitlement to a TDIU. Accordingly, the benefit sought on appeal is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.