Citation Nr: 21021531 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 12-33 657 DATE: April 13, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service connected-disabilities is denied. FINDING OF FACT 1. The Veteran’s service-connected disabilities consist of major depressive disorder, claimed as posttraumatic stress disorder (70 percent), tinnitus (10 percent), and bilateral hearing loss (noncompensable). His combined total rating is 70 percent from March 11, 2010. 2. The Veteran’s service-connected disabilities do not preclude him from securing and following substantially gainful employment consistent with his educational and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to July 1967. This claim stems from issues that had been in appellate status since 2011 and has been remanded several times. Most recently, in October 2020, the Board deferred adjudication of the issue of entitlement to a TDIU until the AOJ processed grants of service connection for bilateral hearing loss and tinnitus and implemented an increased rating for major depressive disorder. Subsequently, in October 2020, the RO issued a rating decision that granted service connection for bilateral hearing loss and tinnitus, and assigned them initial ratings, and increased the rating for major depressive order to 70 percent effective March 11, 2010. The RO also issued a Supplemental Statement of the Case (SSOC) denying entitlement to a TDIU. The Board therefore finds there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU. Total disability meriting a 100 percent schedular rating exists “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. Where the schedular disability rating is less than 100 percent, a total rating due to individual unemployability may nonetheless be assigned if a veteran is rendered unemployable as a result of service-connected disabilities, provided that certain regulatory requirements are satisfied. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability ratings for compensation 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 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) disability 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. “Marginal employment,” for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered “substantially gainful employment.” 38 C.F.R. § 4.16(a). Here, the Veteran’s service-connected disabilities consist of major depressive disorder, claimed as posttraumatic stress disorder (70 percent), tinnitus (10 percent), and bilateral hearing loss (noncompensable). His combined total rating is 70 percent from March 11, 2010. Thus, the percentage requirements of § 4.16(a) are met. Regarding his education and employment history, the Veteran indicated on an April 2018 Application for Increased Compensation Based on Unemployability that he had a bachelor’s degree and had worked from November 1984 to December 2003 as a mail handler at the U.S. Postal Service. He indicated that his depression disorder prevented him from securing or following any substantially gainful occupation. The Board finds that the Veteran’s service-connected disabilities do not preclude him from securing or following substantially gainful employment consistent with his educational and work background. In a September 2010 VA PTSD examination, the Veteran reported that he had a bachelor’s degree and worked for 22 years as a mail handler for the U.S. Postal Service. In his last few years on the job, he called in sick more often due to lack of motivation and “almost came to blows a couple of times.” The examiner determined that the Veteran was able to manage his financial affairs and his mental health symptoms required continuous medication and were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. In a December 2010 VA audiological examination, the Veteran indicated that his hearing loss made it difficult to make out what people say and the ringing, which started 2-3 years prior, made him irritable. In September 2012, the Veteran had a VA mental disorders examination. His symptoms included depressed mood, anxiety, panic attacks that occur weekly or less, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner did not check the boxes indicating that the Veteran had difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including a work or worklike setting; or inability to establish and maintain effective relationships. The Veteran was capable of managing his financial affairs and the examiner indicated that the depression had improved, some of which was due to the medication, and was “relatively mild in many respects” although the Veteran continued to experience moderate amotivation and loss of interest as well as passive suicidal ideation without intent or plan. The examiner indicated that the Veteran’s mental health symptoms caused 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. The Veteran had a third VA mental disorders examination in November 2014. His symptoms included sadness, being withdrawn, detached from people, poor motivation, no energy, and poor memory. He was competent to manage his financial affairs. The examiner concluded that the Veteran’s mental health symptoms caused 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. In a November 2014 VA hearing loss and tinnitus examination, the Veteran reported that his hearing loss impacted his ordinary conditions of daily life, including the ability to work, in that he had to ask his wife to repeat things. In November 2018, the Veteran’s former employer indicated that the Veteran had been employed as a mail handler from November 1984 to December 2003. He was not working due to optional retirement. The Veteran had a fourth and most recent VA mental disorders examination in October 2019. He reported that he retired in 2004 because it “was time for me to retire. I was turning 62 at the time. And plus, I had had an injury, I couldn’t do my job, they had me on lite duty at the time.” His symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long term memory, difficulty in understanding complex commands, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He was competent to manage his financial affairs. The examiner concluded that the Veteran’s mental health symptoms caused occupational and social impairment with reduced reliability and productivity. The Board recognizes that the Veteran is competent to report on the nature and perceived impact of his symptoms to the extent that they are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). However, under the facts of this case, the Board finds that the Veteran has limited competence to opine on the occupational impact of such symptoms, as this is beyond his lay competence. Moreover, the Veteran has made contradictory statements about the reason for leaving his employment, noting that he had retired due to his age and an on-the-job injury unrelated to this military service. Upon review of the evidence of record, the Board finds that the Veteran’s service connected disabilities do not render him unemployable, and the claim must therefore be denied. There is no doubt that the Veteran has had serious symptoms, as reflected by the Board’s previous grant of an increased 20 percent rating for the depressive disorder. However, the evidence as outlined above reflects the Veteran’s depression, hearing loss, and tinnitus do not render him unable to secure or follow a substantially gainful occupation. Rather, VA examination reports dated during this period of appeal are silent for mention of unemployability due to service-connected disabilities. In three VA mental health examinations in September 2010, September 2012, and November 2014, the Veteran’s depression symptoms were characterized as “mild” or causing only intermittent periods of being unable to perform occupational tasks. In the October 2019 VA mental health examination, the Veteran’s symptoms were noted to cause reduced reliability and productivity, but the Board finds it significant that the Veteran reported in this examination that he had stopped working due to his age and an injury incurred on the job, not his service-connected disabilities. There is no other medical evidence suggesting that the Veteran is unable to work due to his service-connected disabilities. In reaching this conclusion, the benefit of the doubt has been considered; however, the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, the Veteran’s claim for TDIU is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.