Citation Nr: 21021740 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 10-31 935A DATE: April 13, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran’s service-connected posttraumatic stress disorder with secondary alcohol use disorder and stimulant use disorder (PTSD), rated 50 percent; tinnitus, rated 10 percent; bilateral hearing loss, rated 0 percent, are rated 60 percent, combined, and are not shown to be of such nature and severity as to render him unable to secure and maintain regular substantially gainful employment. CONCLUSION OF LAW The schedular requirements for a TDIU rating are not met; and a TDIU rating on an extraschedular basis is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a)(b). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1970 to March 1972. This matter is before the Board on appeal from a May 2010 Department of Veterans Affairs (VA) rating decision. In August 2014, June 2018, and February 2019, the Board remanded the claim for additional development. Entitlement to a TDIU rating, to include on an extraschedular basis, is denied. The Veteran contends that since he left his last job in 2008, his service-connected disabilities have prevented him from engaging in substantially gainful employment. A TDIU rating 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 (service-connected) disabilities, provided at least one 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran’s service connected disabilities did not meet the schedular criteria for a TDIU rating under 38 C.F.R. § 4.16(a) at any time during the appeal period. His service connected disabilities are: PTSD, rated 50 percent; tinnitus, rated 10 percent; and bilateral hearing loss, rated 0 percent, and are rated 60 percent, combined. [The Board notes that there are temporary periods of a temporary total rating for PTSD during the evaluation period (and the matter of the rating for does periods is not for consideration herein).] Where the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be considered when a veteran is nonetheless unable to obtain and maintain a substantially gainful occupation due to service-connected disability. 38 C.F.R. § 4.16(b). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). See also Faust v. West, 13 Vet. App. 342, 356 (2000). Marginal employment (for purposes of 38 C.F.R. § 4.16) generally shall be deemed to exist when a veteran’s earned annual income does not exceed the poverty threshold for one person, as established by the U.S. Department of Commerce, Bureau of the Census. 38 C.F.R. § 4.16(a). Substantially gainful employment contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013)(citing 38 U.S.C. § 5103A(d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). Whether service-connected disabilities render a veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care providers. For a veteran to prevail on a claim for TDIU, the record must reflect circumstances that place the veteran’s case in a different category than other veterans with an equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Here, the Board finds that the preponderance of the evidence is against a finding that the Veteran has been unable to obtain and maintain a substantially gainful occupation due to his service-connected disabilities. Initially, the Board notes that in February 2019 the case was remanded to the AOJ for referral to the Director, Compensation Service, for consideration of an extraschedular TDIU. Referral is made where a veteran, who is unemployable by reason of service-connected disabilities, fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The Board is obligated to “explain[] its reasoning when a factual finding made at the referral stage comes out differently at the review stage.” Ray v. Wilkie, 31 Vet. App. 58 (2019). It is emphasized that a remand of the Board is a preliminary action and not a final, appealable determination. In February 2019, the Board did not make an explicit finding, either favorable or unfavorable, regarding whether TDIU is warranted. Also, as the CAVC recognized in Ray, the evidentiary standard for referring a case to the Director for consideration of extraschedular TDIU constitutes a lower threshold than for awarding an extraschedular TDIU. The determination to refer a case is a factual finding that does not bind the Board or require it to award an extraschedular rating. Nevertheless, the Board must still provide a full explanation for “deviating from its earlier referral decision”, and this requirement appears to stem from the CAVC’s concern for addressing inconsistencies in the record. The Board will now explain its seemingly divergent findings made at the referral stage as compared to its ultimate conclusion in this decision that an extraschedular TDIU rating is not warranted. In Ray, the CAVC essentially found that the initial referral decision by the Board addresses only whether there is evidence sufficient to substantiate a reasonable possibility that the Veteran is unemployable due to service-connected disabilities. Here, as noted in the February 2019 Board remand, evidence in the file included a March 2012 VA vocational rehabilitation consultation report noting that the Veteran’s psychiatric diagnosis created barriers to employment; a March 2013 vocational rehabilitation counseling record noting that the Veteran’s service-connected disabilities resulted in limitations, and the counselor’s opinion that the Veteran was significantly impaired in his ability to participate in and achieve rehabilitation due to his PTSD and other issues; a September 2018 VA examiner’s opinion that the Veteran’s mental diagnoses cause 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; and an addendum opinion in which the examiner opined that the Veteran’s PTSD symptoms might result in distractibility, difficulty focusing on tasks, weaknesses in short-term memory, fatigue during the day, difficulty paying attention to tasks, and irritability and mistrust that can cause him to isolate and he can have difficulty working with the public, coworkers, and superiors. Read together, such evidence raises a reasonable possibility that the Veteran is unemployable due to service-connected disabilities; therefore, the Board referred the claim to the Director, Compensation Service. Recognizing that the Board is not obligated to defer to the findings of the Director (see Wages v. McDonald, 27 Vet. App. 233 (2015)), who in this case determined not to grant an extraschedular TDIU, on review of all the pertinent evidence the Board now finds that the evidence against an award of TDIU outweighs the evidence supporting it. The evidence demonstrates that the Veteran has numerous disabilities, both service-connected and nonservice-connected; considering only his service-connected disabilities, the Board finds they do not preclude substantially gainful employment. Stated another way, he is not shown to be incapable of a regular gainful occupation despite the functional impairment due to his PTSD, tinnitus, and bilateral hearing loss. In his March 2019 TDIU application, the Veteran stated that he last worked full-time, and became too disabled to work, in 2008. He stated that he left his last job because of his service-connected disabilities and had not tried to obtain employment since he became too disabled to work. He reported having a high school diploma and 2 years of college. The question here, however, is whether his service-connected symptoms alone are of sufficient severity to prevent a gainful occupation. The Veteran’s education, work history, and skills/training have been considered. Although requested (on the TDIU application), and responses to requests for employment information from the Veteran’s former employers were received, specific information regarding the circumstances surrounding the termination of his jobs has not been received. On March 2009 treatment, the Veteran reported he had worked as a carpenter for two years, but lost his job two months earlier. He endorsed symptoms of anger, rage, hostility, poor impulse control, sadness, poor concentration, hypervigilance, intolerance, and isolation. He stated he was laid off from his job at a cabinet making company due to cutbacks (notably, not for disability). On April 2009 VA examination, the diagnoses included PTSD and polysubstance abuse dependence in early remission. The Veteran reported that he was seeking work. He reported he had been employed as a truck driver but had been unemployed for less than a year, and was fired due to downsizing. He did not contend his unemployment was due to the effects of his mental disorder. A May 2010 VA vocational rehabilitation consultation report notes the Veteran was seeking employment. His psychiatric diagnosis was noted to create barriers to employment. His criminal history, anxiety, depressive symptoms, substance abuse history, poor anger management, components of a personality disorder, lack of vocational training, and poor recent work history were also noted to be barriers. He had completed high school, but not college. He reported he last held a job in 2009. He had worked as a cabinet maker, and had also worked in delivery for 11 years. A June 2010 counseling record notes his service-connected disabilities resulted in a number of limitations: sleep difficulties; social isolation; impaired concentration; flashbacks; irritability; anxiety; agitation; nightmares; intrusive feelings; and anger. He did not report any limitations due to hearing loss or tinnitus. The counselor opined the service-connected PTSD impaired his ability to prepare for, obtain, or retain employment consistent with his abilities, aptitudes, and interests. In an October 2010 letter, a VA physician opined the Veteran was eligible for the VA Vocational Rehabilitation program because he was able to work in his field of interest and was currently seeking employment. He was suspended from the program in January 2011 after not completing the necessary evaluation, and was suspended again in August 2011. A March 2012 VA vocational rehabilitation consultation report notes that the Veteran’s psychiatric diagnosis created barriers to employment. His criminal history, anxiety, depressive symptoms, substance abuse history, poor anger management, components of a personality disorder, lack of vocational training, and poor recent work history were also noted to be barriers. He was found to be eligible for the program, and community employment was the expected outcome. A March 2012 VA social work note notes the Veteran was attempting to obtain a housekeeping position at the local VA hospital. A March 2013 vocational rehabilitation counseling record notes the Veteran’s service-connected disabilities resulted in limitations, including: sleep difficulties; social isolation; impaired concentration; flashbacks; irritability; anxiety; agitation; nightmares; intrusive feelings; and anger. He did not report any side effects due to hearing loss or tinnitus. The counselor opined the Veteran was significantly impaired in his ability to participate in and achieve rehabilitation due to his PTSD; back and neck disabilities; ongoing treatment for PTSD; long periods of unemployment; alcohol and substance abuse; withdrawal from society; lack of education or training; difficulties with communicating; and criminal record. In an October 2013 letter (received in November 2013), a VA treating physician noted the Veteran was being treated for PTSD in a residential treatment program. His symptoms included anxious and sad moods, recurrent nightmares, sleep difficulties, intrusive memories, hypervigilance, emotional detachment, isolation, irritability, and memory and concentration problems. The physician opined the PTSD affected his ability to function in his social and occupational roles. The physician noted hypertension, hyperlipidemia, gout, COPD, sleep apnea, low back pain, and chronic kidney disease had been diagnosed and opined he could not “sustain employment due to his psychiatric and medical problems.” At the July 2014 Board hearing, the Veteran testified that his PTSD caused him to have anger issues, nervousness, depression, nightmares, and flashbacks. He testified that he stopped working due to anger issues caused by the PTSD. On May 2016 VA examination, the diagnoses included PTSD, stimulant use disorder in sustained remission, and alcohol disorder in partial remission. His PTSD symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work-like setting. He reported that he had not worked since age 60 or 61, in the delivery and installation of cabinetry. The examiner opined that the Veteran’s level of occupational and social impairment was best summarized as occupational and social impairment with reduced reliability and productivity. The examiner opined that due to his low frustration tolerance and difficulty getting along with others due to PTSD, “he would have problems serving in any position requiring frequent or prolonged contact with others. He would also have difficulty working in any environment that could become crowded and he would need to working in a flexible environment where he could leave for short periods of time to calm his nerves as necessary. Furthermore, due to the Veteran’s impaired attention span and declining memory he would likely have difficulty working in an environment where he is unsupervised for long periods of time and he may require additional time to complete tasks or learn new skills.” The examiner noted the Veteran had been hospitalized three times since the April 2009 VA examination (January-April 2013, September 2013-January 2014, and a non-VA facility for two weeks in 2010 for depression and suicidal ideation). On May 2016 VA audiological examination, the examiner opined that the Veteran’s mild bilateral hearing loss impacted his ordinary conditions of daily life, including his ability to work, and he would benefit from the use of hearing aids. She opined that as long as he used appropriate amplification and was provided reasonable accommodations, he should be able to perform most jobs for which he has the training and background. The examiner opined his tinnitus did not impact the ordinary conditions of daily life, including the ability to work. On September 2018 VA examination, the Veteran reported that his mental health symptoms interfered with his occupational functioning. He reported that after service, he worked for Sears in transportation for eleven years, worked for the city of Fort Lauderdale in the water department for three years, worked for a furniture company building cabinets, and worked for a meat company and cleaned the shop; and stopped working at age 62. His reported symptoms included depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including work or a work-like setting. The examiner opined that the Veteran’s mental diagnoses cause 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. In an addendum opinion, the examiner opined that the Veteran’s intrusive thoughts about his military experiences and hypervigilance might result in distractibility, difficulty focusing on tasks, and weaknesses in short-term memory; his insomnia and nightmares likely cause him to feel fatigued during the day, which can cause him to complete tasks at a slower pace; his anxiety and depressed mood might result in difficulty paying attention to tasks; and his irritability and mistrust can cause him to isolate and he can have difficulty working with the public, coworkers, and superiors. In the February 2019 remand, the Board noted that the vocational experts’ opinions of record that the Veteran’s service-connected disabilities impact his ability to perform occupational tasks, when considered alongside the September 2018 VA examiner’s opinions regarding his limitations, satisfy the 38 C.F.R. § 4.16(b) criteria for submission of a claim to the Director of the Compensation and Pension Service for extraschedular consideration. The Board noted that, because alcohol use disorder is considered secondary to the Veteran’s PTSD, its effects must be considered, noting his several extended periods of inpatient alcohol rehab treatment and that, nonetheless, alcohol abuse remained a problem (and apparently a significant obstacle to employability). In his March 2019 TDIU application, the Veteran stated that he last worked full-time, and became too disabled to work, in 2008. He stated that he left his last job because of disability and had not tried to obtain employment since he became too disabled to work. He reported having a high school diploma and 2 years of college. An April 2019 response to a request for employment information from the Veteran’s former employer indicates that the Veteran was employed as a shop helper for 6 weeks in January-February 2009 with varying hours each week; the reason for termination of employment was not given. A November 2020 AOJ memorandum to the Director of Compensation and Pension Service recommended that entitlement to a TDIU rating on an extraschedular basis be denied because the evidence does not support the Veteran is unemployable due to his service-connected PTSD. In a January 2021 advisory opinion, the Director of Compensation and Pension Service noted that the Veteran last worked in 2009 delivering and installing cabinetry. It was noted that evaluations of the Veteran’s mental health symptoms indicate they result in distractibility, difficulty with workplace or personal interactions, and difficulty learning new skills, but are not shown to result in severe mental health symptoms or total occupational or social impairment. The Director noted the impact of the Veteran’s mild bilateral hearing loss and longstanding tinnitus. The Director opined that the records as a whole show the PTSD symptoms result in moderate overall impairment to occupational and social functioning with minimal occupational impairment from hearing loss and tinnitus. The Director opined that the service-connected conditions are not shown to result in an exceptional disability pattern reflecting the need for an extraschedular evaluation for individual unemployability benefits. The Executive Director of Compensation Service indicated that the overall evidence fails to support that any of the Veteran’s service-connected disabilities or a combination of the effects of those disabilities prevents employment, and found that entitlement to extraschedular TDIU benefits is not established. On January 2021 VA PTSD examination, the Veteran reported that he is a retired truck driver for Sears, and stopped working approximately 7 years earlier [so approximately in January 2014] at age 62; he was in this position for 11 years, and had also worked for a furniture shop and at a meat store in part-time positions after he retired. The examiner opined that the Veteran’s mental diagnoses result in occupational and social impairment with reduced reliability and productivity. The Board observes that the Veteran’s reports of when he last worked and whether he has sought work since have been inconsistent and cannot all be accepted as accurate at face value. Generally however, the evidence reasonably shows that his last long-term employment (in making and delivering cabinetry) was terminated around 2009 because of downsizing (and not due to disability). Contrary to his more recent assertions/reports, the record also shows that after losing that employment he continued to seek work and sought participation in VA Vocational Rehabilitation (where he was assessed and found to be capable of work consistent with his education/abilities). His participation in the program was twice terminated for failure to complete requirements In the Board’s assessment, the descriptions in VA records illustrate that the Veteran has not been precluded from gainful employment due to mental incapacity. No VA examiner has opined that his service-connected disabilities alone result in such functional impairment that he is prevented from substantially gainful employment. The Board has considered the outpatient records generated by the Veteran’s treating providers in reaching its decision that evidence of service-connected symptoms showing the Veteran has remained employable throughout outweighs the evidence showing he is/has been unemployable. The totality of the evidence, including the descriptions of the Veteran’s functional capabilities in the VA records, outweighs the evidence that tends to show that he is unemployable due to functional loss from service-connected disabilities. The Board’s conclusion does not suggest that his service-connected disabilities would not have present difficulty in obtaining and maintaining substantially gainful employment. Indeed, his symptoms are not negligible but consequential; they would restrict him to certain types of employment that would limit interaction with others. Further, his education and limited transferable skills would be a factor in the types of available jobs he could perform. However, the Board is persuaded that considering the functional loss from his service-connected mental and physical disability symptoms, he is not shown to (by virtue of service connected disabilities alone) have been/be incapable of gainful employment in various occupations that can be maintained/remain feasible despite the limitations due to the service-connected audiological and psychiatric disabilities (e.g., groundskeeping, monitoring surveillance cameras, night watchman in a public building, grounds security, tracking inventory, and other such occupations). Accordingly, it is the Board’s judgment that the preponderance of the evidence is against the claim for an extraschedular TDIU rating, and that the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.