Citation Nr: 21020704 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 08-06 558A DATE: April 8, 2021 ORDER The claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran’s only service-connected disorder is dysthymic disorder for which a 30 percent rating has been in effect throughout his appeal. 2. Service-connected disability or disabilities have not prevented the Veteran from obtaining and maintaining substantially gainful employment consistent with his level of education and work history on a schedular or extraschedular basis. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met, and referral to the Director of Compensation Service for extraschedular consideration is not warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1964 to July 1965. Following the issuance of a January 2021 supplemental statement of the case (SSOC) regarding these issues, the Veteran submitted a VA Form 20-0996, Request for Higher-Level Review opting into the Appeals Modernization Act (AMA) as to his service connection claim for OSA. He specifically limited his request for Higher-Level Review to his claim for service connection for OSA. Given the above, the issue of entitlement to service connection for OSA will now be adjudicated under the AMA framework, and it will not be addressed further herein. Entitlement to a TDIU. After a review of the evidence of record, the Board finds that entitlement to TDIU is not warranted. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran's service-connected disability does not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) (2020). The Veteran is service connected for dysthymic disorder rated as 30 percent disabling throughout the appeal period. Therefore, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) (2020). When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b) (2020). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b) (2020). Accordingly, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2020). In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie directed the Board to consider the following factors: (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 required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2020). The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that referral for extraschedular consideration is warranted. The reasons follow. Various documents of record, to include when the Veteran filed a claim for a TDIU in June 2020, reflect that he worked in different aspects of law enforcement and security from 1968 to 1996 and part-time as a bailiff for a short period of time in February to March 2020. The record also reflects that the Veteran has received Social Security Administration (SSA) benefits from August 2000 due to hypertension and cardiomyopathy. When examined by VA in January 2005 regarding his mental health, the Veteran stated that he retired successfully from his job in law enforcement after 28 years. He said that his employment had been very stressful, although he denied experiencing any particular difficulties at work related to stress or his nerves. At this time, he worked around the house (e.g., mowing the lawn) and attended church. He volunteered as an advocate for veterans’ needs. When examined by VA in April 2006, the examiner noted that there were no psychological reasons that prevented the Veteran from gainful employment if he so desired. He was noted to be active in his community. Additional VA examiner in September 2008 opined that total occupational and social impairment due to mental disorder signs and symptoms was not demonstrated. A VA examiner in April 2012 found that psychiatric symptoms resulted in 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. Later, in the same report, the examiner opined that his dysthymia symptoms (depressed mood sleep disturbance, low energy, and diminished self-esteem) would render him unlikely to be able to secure or follow a substantially gainful occupation. Another VA examiner in October 2013, following examination of the Veteran, opined that he was capable of substantial gainful employment when considering just his mental health symptoms. VA records dated in September 2017 reflect complaints of depressive and anxiety symptoms. He said that he had a lot of current stressors to include multiple medical issues and that he was also caretaker for his wife. A private vocational assessment from June 2020 includes an opinion from a certified rehabilitation counselor (who also holds a Ph.D.) that the Veteran was unable to obtain substantially gainful employment due to service-connected mental health symptoms, to include aggravation, diminished self-esteem, sleep disturbance, depression, low energy, exhaustion, mood swings, melancholia, panic attacks, and memory impairment. As already noted, for the entire rating period, the Veteran has only been service connected for dysthymic disorder, rated at 30 percent disabling. On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the Veteran is rendered unable to obtain or maintain substantially gainful employment as a result of the service-connected dysthymic disorder. As noted above, the Veteran worked full-time until the mid-1990s in law enforcement. He retired successfully, though he now reports that the stresses of work associated mental health manifestations played a part in his retirement. The veracity of the Veteran’s assertion is not disputed. In support of his claim is the June 2020 vocational assessment that includes an opinion that the Veteran’s dysthymic disorder symptoms alone precluded all substantially gainful employment. The Board, however, has found this opinion to be of less probative value because the private examiner’s assessment varies significantly with the other relatively consistent VA examination reports and treatment record evidence showing the degree of occupational and social impairment caused by the service-connected dysthymia. Specifically, as noted above, throughout the appeal process, the Veteran’s dysthymic symptoms have been noted, and they are significant, but the record does not indicate that all substantially gainful employment is precluded. Moreover, these limitations were considered in the disability rating he received. Again, the assignment of the schedular ratings is recognition of the functional limitations caused by his disabilities, and the 30 percent rating assigned for service-connected dysthymic disorder contemplates the severity and overall impact his mental health symptoms have on his life. Despite these limitations, however, the Board finds that the most probative evidence shows that the Veteran was not unable to secure or maintain substantially gainful employment due solely to his service-connected disability. While he may no longer be able to handle the stresses of his former employment in law enforcement, the record does not demonstrate that he could not perform additional types of work, to include non-exertional jobs that do not involve meeting the public and dealing with stressful situations. In sum, the evidence collectively does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disability. Thus, the Board finds that the Veteran has not satisfied the requirements for extraschedular referral under 38 C.F.R. § 4.16(b) (2020). See also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). As the Veteran does not meet the schedular requirement for a TDIU and as the Board finds that referral for extraschedular consideration is not warranted, the claim for a TDIU must be denied. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeals. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria, including 38 C.F.R. § 4.16(b) (2020) referral, for TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2020). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.