Citation Nr: 21021491 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-35 002 DATE: April 13, 2021 ORDER A total disability rating based on individual unemployability due to a service-connected disability (TDIU) from February 1, 2013 to January 28, 2017 is denied. FINDING OF FACT For the rating period from February 1, 2013 to January 28, 2017, the Veteran was not rendered unable to obtain or maintain substantial gainful employment as a result of service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for TDIU from February 1, 2013 to January 28, 2017 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1959 to August 1969. The Veteran died in December 2017. The appellant is the Veteran’s surviving spouse, who has been substituted in this claim. 38 U.S.C. § 5121A. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision from the Regional Office (RO), which, in pertinent part, denied an increased disability rating in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD). During the pendency of the appeal for an increase disability rating for PTSD, the Veteran submitted a claim for TDIU that attached to the issue of increased rating for PTSD for the rating period from February 1, 2013. See October 2016 TDIU Claim (VA Form 21-8940). See Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). A December 2017 rating decision granted TDIU, effective from January 28, 2017. As such, the remaining TDIU rating period on appeal is from February 1, 2013, the date of receipt of the claim for increased rating for PTSD, to January 28, 2017, the date that TDIU was granted. In March 2020, the Board remanded the issue on appeal to refer the TDIU issue on appeal to the Director of Compensation Services for adjudication under 38 C.F.R. § 4.16(b). The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the March 2020 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Appellant nor the evidence has raised any specific contentions regarding the duties to notify or assist. TDIU Disability ratings are determined by applying the criteria set forth in VA’s Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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. Submission to the VA Director of Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). TDIU from February 1, 2013 to January 28, 2017 In October 2016, the Veteran submitted a formal claim for TDIU, asserting that the service-connected PTSD prevented him from securing or following substantial gainful employment. See October 2016 VA Form 21-8940 (Claim). The Veteran indicated that he last worked full time as a consulting designer for Carpet Marketing Service from 1990 to 1996. The Veteran indicated that he became too disabled to work in January 1998 and answered “yes” that he left his last job due to the service-connected disability. See October 2016 Claim. Prior to the Veteran’s death in December 2017, service connection was established for PTSD. During the relevant rating period from February 1, 2013 to January 28, 2018 the PTSD was rated 50 percent disabling. Because there was not one service-connected disability rated at least 60 percent, or one service-connected disability rated at least 40 percent with a minimum combined rating of at least 70 percent for all service-connected disabilities, the service-connected PTSD did not satisfy the threshold combined disability rating percentages requirement for consideration of TDIU for this period. 38 C.F.R. § 4.16(a). For this reason, the Board directed TDIU adjudication by the the Director of Compensation Services 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16 (b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). The Board will now conduct de novo review of the TDIU issue. Having considered all the evidence of record, lay and medical, the Board finds that a TDIU from February 1, 2013 to January 28, 2017 is not warranted. While the record suggests that the service-connected PTSD caused some functional impairment, the evidence does not show that the service-connected PTSD rendered the Veteran unable to secure or maintain substantial gainful employment during the appeal period. Although the Veteran wrote that his PTSD rendered him unable to maintain or obtain substantial gainful employment and that he last worked full time in 1996, other lay and medical evidence of record weighs against finding that the service-connected PTSD rendered the Veteran unemployable during the relevant rating period. During the relevant appeal period from February 1, 2013 to January 28, 2017, the symptomatology and functional impairment associated with the service-connected PTSD included symptoms of nightmares, chronic sleep impairment, anxiety, depressed mood, suspiciousness, disturbance of motivation and mood, and difficulty establishing and maintaining work and social relationships. The VA examiners in October 2011, December 2013, and May 2015 assessed no more than mild or transient symptoms without significant impairment in social or occupational functioning. See October 2011, December 2013, May 2015 VA examination reports. VA treatment records indicate that the service-connected PTSD remained relatively stable on conservative treatment with group therapy for many years. The Veteran was not prescribed psychotropic medications, did not engage in individualized psychotherapy, and did not require any psychiatric hospital admissions during the relevant rating period. Additionally, group therapy notes consistently indicated that the Veteran presented no symptoms of distress, no suicidal ideation or homicidal ideation, no hallucinations, and no impulsivity or other psychotic defects. Mental status examinations also show that the Veteran was observed to be cooperative, alert, and oriented with appropriate hygiene, normal speech, euthymic mood and affect, intact memory, linear and coherent thought processes, intact judgment and insight, and no suicidal ideation, homicidal ideation, or hallucinations. See February 2011, May 2016, June 2016, September 2016, January 2017, April 2017 VA treatment records. To the extent that the Veteran asserted that he left his last full time job in 1996 due to the service-connected PTSD and had been unable maintain or obtain substantial gainful employment due to PTSD in the October 2016 Claim, this assertion is inconsistent with and outweighed by other evidence of record, which shows that the service-connected PTSD did not render the Veteran unemployable during the relevant rating period from February 1, 2013 to January 28, 2017. Specifically, vocational rehabilitation and education (VR&E) records from March 2009 show that the Veteran reported that he had been self-employed as an indoor and outdoor contractor for 20+ years, and that he left the job because it was hard to get customers in the economy at the time. The Veteran specifically denied any impairments related to the PTSD when asked multiple times, stating that he was only losing clients due to the down economy, not as a result of PTSD symptoms. See March 2009 VR&E records. The Veteran also did not indicate during VA examinations that PTSD rendered him unemployable. An April 2010 VA examination report indicates that the Veteran reported being self-employed. During the October 2011 VA examination, the Veteran reported being involved in full time work, that he handled his own activities of daily living, including doing his share of the household chores, cooking, shopping, and managing funds. During the December 2013 VA examination the Veteran reported that he last worked four years ago until the company he worked for closed. During the May 2015 VA examination, the Veteran endorsed working part time in contracting and interior design sales, though he reported that the work was sporadic. See April 2010, October 2011, December 2013, May 2015 VA examination reports. Although the Veteran reported that his PTSD rendered him too disabled to work on the October 2016 Claim, he also wrote that he was physically, not mentally, unable to maintain a positive work level. See October 2016 Claim. Overall, the evidence from February 1, 2013 to January 28, 2017 indicates that the Veteran stopped working due to circumstances unrelated to the service-connected PTSD, including due to losing clients in a down economy, his former employer closing the company, and due to non-service-connected physical limitations. Moreover, the Veteran has also reported working full time and part time during the relevant period despite functional limitations associated with his PTSD. The evidence of record shows that the Veteran was not rendered unable to obtain or maintain substantially gainful employment by virtue of the service-connected PTSD from February 1, 2013 to January 28, 2017. For these reasons, the appeal for TDIU must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Moore, Shanna 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.