Citation Nr: 21015071 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-35 473A DATE: March 16, 2021 ORDER A total disability rating based on individual unemployability (TDIU) prior to May 12, 2017 is denied. FINDINGS OF FACT 1. The Veteran served on active duty from May 1966 to December 1969; he has been rated at 100 percent disabled for posttraumatic stress disorder (PTSD) since May 2017. 2. Prior to May 12, 2017, the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU prior to May 12, 2017, have not been met. 38U.S.C. §§1155, 5107 (2012); 38C.F.R. §§3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there are sufficient additional service-connected disability ratings to bring the combined rating to 70 percent or more. 38C.F.R. §§3.340, 3.341, 4.16(a). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In this regard, VA regulations provide that marginal employment may be held to exist, on a facts-found basis, when a veteran is engaged in protected employment. See 38 C.F.R. § 4.16 (a). A TDIU may be assigned, if the scheduler 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service connected for PTSD at a rating of 100 percent effective May 12, 2017. As such, a TDIU for the period since May 12, 2017, is not for application. Prior to May 12, 2017, the Veteran was service connected for PTSD at 70 percent effective November 11, 2012. Accordingly, the schedular criteria for assignment of a TDIU has been met prior to May 12, 2017. The Veteran’s service-connected disability meets the schedular criteria for a TDIU prior to May 12, 2017; however, when determining eligibility for a TDIU, the determinative issue is whether he was rendered unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. In this case, the Veteran is not employed, and has not been employed full time since 2013; however, the VA examinations and treatment records noted that since 2005 he was employed part-time as a cashier at a hardware store and he also worked on an independent basis in real estate. On a February 2014 VA PTSD examination, the examiner reported that the Veteran’s PTSD symptoms included depressed mood, anxiety, chronic sleep impairment. The examiner concluded the Veteran’s level of impairment as that of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner noted that PTSD was of mild to moderate severity, and that the Veteran maintained employment and was very active. The examiner indicated that the PTSD symptoms affected the Veteran interpersonally, but that it was not until he was stimulated by an external event that he became symptomatic. Otherwise, the examiner stated that the Veteran led a relatively high functioning life. The Veteran noted that he had been married three times and had no children. He explained that his marriages failed due to his mood swings, irritability, anger, and withdrawal symptoms. He noted that he was working part-time at a hardware store and purchased real estate for investment purposes. He reported that he had never been fired from any job, but that he had quit jobs in the past due to irritability at management and inability to interact effectively with supervisors. He indicated that he believed that the PTSD effected his ability to remain at jobs, interact effectively with supervisors and that he was disciplined on the job several times for mostly “misunderstanding,” or not complying with protocol. In an October 2015 statement, the Veteran reported daily anxiety attacks, passive suicidal ideation, depression, insomnia, irritability, agitation, decreased concentration and energy, a sense of hopelessness, nightmares, bad dreams, excessive worry, and sleeplessness. He noted that he retired early from a job he had held, was unable to focus on online courses he attempted to take, and in his current job, struggled to interact with people due to his mood swings and lack of concentration and energy. He expressed his belief that his three divorces were related to his mood swings, excessive worry, and inability to communicate and connect with his partners. Accompanying VA treatment records dated from November 2015 to December 2015 show that the Veteran reported working as supervisor before retiring two years previously. He indicated that he currently worked part-time at a hardware store and his hours had increased to 40 per week. His provider noted that PTSD was severe, with especially intense and unrelenting intrusion, such that it had taken a severe toll on the Veteran’s relationships, to include his three marriages and the loss of friendships, as well as his overall quality of life. March, August, May, and November 2016 VA treatment records note that the Veteran’s PTSD was manifested by flashbacks, nightmares, insomnia, and anxiety. On examination, he was well-groomed, alert, and oriented. His mood was euthymic, affect was full. His speech was normal, thought process was logical and organized, insight was good and judgment was fair, and memory was intact. In an April 2017 statement, he clarified that he worked alone on his part-time real estate business. He again reported flashbacks, nightmares, and insomnia. On a May 2017 Disability Benefit Questionnaire (DBQ), the examiner reported that the PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short term and long term memory, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner concluded the Veteran’s level of impairment as that of total occupational and social impairment. In the September 2018 application for compensation based on unemployability, the Veteran reported working full-time as a supervisor from September 2005 until September 2013, earning $5,000 per month. He also reported working as a part-time cashier at a hardware store from 2005 to the present, earning $2,000 per month. He reported completing two years of college. He stated that he was only working part time at the hardware store and that the flexibility of being part time allowed him the opportunity to reschedule if he was having difficulty with his PTSD. He further noted that his supervisors were considerate with his disability and made concessions for him. Based on the above, entitlement to a TDIU prior to May 12, 2017, is not warranted. There is no evidence lay or otherwise that the Veteran’s part-time employment was less than substantially gainful, and there is no evidence lay or otherwise that PTSD rendered him incapable of performing the physical and mental acts required by employment. Further, there was no evidence that the Veteran could not find employment due to PTSD. In this regard, he reported that he retired from his extended employment as a supervisor and he used his work as a cashier as a distraction since he needed to keep his mind busy. As such, in the absence of additional evidence, the fact that he worked part-time to full-time (up to 40 hours per week) in a post-retirement occupation does not constitute evidence of unemployability. Instead, the evidence suggests that the Veteran was high-functioning despite the presence of his symptoms. For example, he consistently demonstrated appropriate self-care and the capacity to communicate appropriately and effectively with others. His judgment, insight, and thought processes remained within normal limits on examination. Further, the February 2014 VA examiner indicated that the PTSD symptoms affected the Veteran interpersonally, but that it was not until he was stimulated by an external event that he became symptomatic. Otherwise, the examiner stated that the Veteran led a relatively high functioning life. Therefore, the Veteran was not found to be unemployable as a result of his service-connected disabilities; as such, the medical evidence does not support entitlement to a TDIU prior to May 12, 2017. The Board has considered lay statement submitted by the Veteran regarding his capacity to work prior to May 12, 2017. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16 (a). Such competent evidence concerning the nature and extent of the Veteran’s unemployability prior to May 12, 2017, has been provided by the medical personnel who have examined him and provided pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical experience to render medical opinions regarding the impact of the Veteran’s service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of unemployability, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.