Citation Nr: 21015066 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-30 104 DATE: March 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of evidence does not support that the Veteran’s service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1984 to November 2008. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In October 2014, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript of the hearing is available in the record. VA sent the Veteran a letter in July 2017 notifying him that he had the right to a new hearing before the VLJ who would rule on his case. The letter stated that if the Veteran did not respond within 30 days, the Board would assume he did not wish another hearing and the Board would proceed accordingly. VA did not receive a response from the Veteran, and thus the Board will proceed with the decision. This matter has previously been before the Board. In a September 2017 decision, the Board found the issue of TDIU had been raised as part of the Veteran’s claim for increased ratings for posttraumatic stress disorder (PTSD) and his lumbar spine disability, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board cited to the Veteran’s comments in VA examinations and in the medical treatment record, that the Veteran was unemployed potentially due to his PTSD symptoms and his left knee surgery. The Board remanded the TDIU claim for the RO to provide the Veteran with written notice of his potential entitlement to a TDIU rating and SMC under 38 U.S.C. § 1114 (s). In a July 2020 decision, the Board again remanded the claim after it found previous notice by the RO to the Veteran was not in substantial compliance with the Board’s September 2017 directives. The July 2020 remand also ordered updated medical records to be associated with the claim file and for the Veteran to be afforded a VA medical opinion on the TDIU claim. Subsequently, the Veteran was provided with notice his potential entitlements, and he was afforded VA examination to assess the impact of his service-connected conditions on his employability. Updated medical records have been associated with the claim file. The Board finds there has been substantial compliance with its instructions. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU is denied. As a preliminary matter, the Veteran is presently evaluated at a combined 100 percent disability status. He is service-connected for PTSD at 70 percent; status post left knee surgical repair with degenerative joint disease at 60 percent; headaches at 30 percent; deep vein thrombosis at 20 percent; lumbar spine degenerative changes with history of herniated disk at 20 percent; status post right knee surgical repair with degenerative joint disease at 10 percent; and he is service-connected with non-compensable ratings for status post right foot gunshot wound injury and an associated scar. It should be noted that, to date, VA has not received a completed VA Form 21-8940 (TDIU application) from the Veteran. Through the pendency of this claim, VA has requested a Form 21-8940 from the Veteran several times. Most recently, in November 2020, the Veteran was notified of his potential entitlement to TDIU, as well as potential entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). The RO also notified the Veteran of additional considerations for self-employed veterans, asking that he reply with the completed form and necessary information within 30 days. See November 2020 Subsequent Development Letter. After 30 days elapsed with no response of record, the Veteran was notified that his appeal had returned to the Board’s docket for adjudication. The Veteran is advised that VA’s duty to assist is not a one-way street. If a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board will therefore proceed with adjudication of the Veteran’s claim based on the evidence currently of record. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). The law provides that a total disability rating 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 as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16 (a). The Veteran’s current combined rating is 100 percent, from December 1, 2015. His evaluation for posttraumatic stress disorder (PTSD) alone is at 70 percent disabling. Thus, the schedular threshold requirements of 38 C.F.R. § 4.16 (a) have been met. The inquiry then turns to whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. After a review of all the evidence, lay and medical, and consideration of the United States Court of Appeals for Veterans Claims (Court) opinion in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Board finds that the evidence does not show that the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. In Ray, the Court held that in determining whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to: (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 (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which 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 (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue, in which 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity. Additionally, the Court held that, “[b]y discussing [the] potentially relevant factors, we don’t create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it.” See Ray, 31 Vet. App. at 62. Regarding the Veteran’s work experience and education, the Veteran’s resume indicates he was the president and CEO of a clothing business from November 2008 to September 2013. The Veteran’s resume indicates he attended college classes at several schools, but the record is unclear whether he holds a college degree. The Veteran has indicated Lean Six Sigma and Lean Logic training, as well as training in professional sales, management, and leadership. See December 2010 Resume. In October 2020, a VA examiner elicited the Veteran’s work history. The examiner documented the Veteran’s reports that after the military, he sold t-shirts from 2008 to 2010. From 2010 to 2013 he reported he was unable to find a job. In 2013, the Veteran had total knee replacement surgery and was unable to work. From 2014 to 2019, the Veteran was unable to work as a result of knee problems. In 2020, the Veteran worked as a certified medical assistant doing injections and blood draws. However, the Veteran quit that job due to poor working conditions. In 2020, the Veteran also worked at a VA facility as a screener for COVID-19. The Veteran quit that job due to stress. See October 2020 Compensation & Pension (C&P) Examination. The Board is mindful that the Veteran’s reports above do not fully comport with the Veteran’s resume, in which he indicated being president and CEO of a clothing company from 2008 to 2013. Specifically, the Veteran’s reports of seeking employment from 2010 to 2013 are inconsistent. Nonetheless, the Veteran’s reports are not otherwise contradicted by the evidence of record. Turning to the second Ray consideration, the Veteran’s physical ability to perform work, the medical evidence of record indicates the Veteran has several restrictions. A June 2015 VA examination of the Veteran’s knee condition showed that he had functional limitations resulting in reduced motion due to pain, especially during flare-ups. A September 2015 VA examination of the Veteran’s lower back showed that he was limited in his ability to sit or stand for more than 20 minutes at a time. The Veteran’s ability to lift, or to walk for a prolonged time was also precluded. March 2016 evaluations of the Veteran’s headache disability and of his peripheral nerve conditions indicated neither condition caused reduced ability to work. In October 2020, a VA examiner found the Veteran was limited to walking 50 feet or less without assistance, and that he used a cane or a walker. However, the Veteran was not bedridden, and no other orthopedic or prosthetic devices were documented. The examiner indicated the Veteran would not do well in a job which required a lot of walking, but that he was not precluded from sedentary work. The third Ray consideration is whether a Veteran’s mental abilities to perform work are limited by his service-connected disabilities. In October 2020, a VA psychologist observed that the Veteran had voluntarily left two jobs in 2020 because he did not like certain coworkers or supervisors. The Veteran had left school because he did not like another student. The examiner documented that the Veteran experienced symptoms of anxiety, chronic sleep impairment, circumstantial, circumlocutory or stereotyped speech, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. It should be noted that the examiner indicated the interview with the Veteran yielded “a serious question of reliability,” citing several discrepancies between that interview and previous evaluations for PTSD, specifically regarding the claimed stressors which had been reported to have caused PTSD, and other past events. The psychologist concluded with an opinion that the Veteran’s mental health condition did not result in a dysfunction to employability. See October 2020 C&P Examination. The Board finds the psychologist’s evaluation to be highly probative based on the thorough elicited social and employment history, as well as extensive discussion of the Veteran’s lay reports, including discussion of the effects of his mental health condition. While the Board recognizes that the Veteran’s service-connected disabilities have resulted in some occupational impairment, the weight of the probative evidence does not support a finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. The Veteran held at least two jobs in 2020, and he left each of those jobs voluntarily for reasons not claimed as related to his service-connected disabilities. The evidence of record does not show that the Veteran was unable to be hired for those jobs, nor does the evidence support that his service-connected disabilities were a factor in leaving those jobs. No medical opinion of record has indicated that any of the Veteran’s disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran has previously suggested that his lapses in employment were at least in part the result of inability to work because of his service-connected knee and PTSD disabilities. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily observable disabilities. 38 U.S.C. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the evidence does not support that the Veteran has the training or expertise to render an opinion regarding his medical conditions. Moreover, the record is silent as to any explicit contention by the Veteran that he is precluded from working because of any identified reason, including from his service-connected disabilities. The Veteran has not provided employment information or other information required by the VA Form 21-8940 (TDIU application), and the Veteran’s verbal reports of employment to his medical examiners have been inconsistent. Thus, the Board finds the assessments of his medical examiners are more probative. The preponderance of evidence does not support that the Veteran’s service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. The claim for TDIU is denied. Jack S. Komperda Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.