Citation Nr: 21022313 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 12-29 647 DATE: April 15, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to June 30, 2015, is denied. FINDINGS OF FACT 1. The Veteran had active service from June 1970 to March 1974; he has been 100 percent disabled since June 30, 2015. 2. Prior to June 30, 2015, the Veteran was service connected for posttraumatic stress disorder (PTSD) at 50 percent and diabetes mellitus (DM) at 20 percent. His combined disability rating was 60 percent. 3. Service-connected disabilities did not render the Veteran unable to secure or maintain gainful employment prior to June 30, 2015. CONCLUSION OF LAW The criteria for a TDIU prior to June 30, 2015, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 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). Prior to June 30, 2015, the Veteran was service connected for PTSD at 50 percent and DM at 20 percent. His combined disability rating was 60 percent, aside from a period of temporary total evaluation from July through August 2012. As such, he did not meet the schedular criteria for a TDIU during the appeal period. In September 2017, the Regional Office (RO) granted a 100 percent rating for PTSD, effective June 30, 2015. As such, the RO found that the claim for TDIU was moot as a rating of 100 percent had already been granted and the evidence did not show entitlement to an earlier effective date. In June 2018, the Board remanded the issue of entitlement to a TDIU prior to June 30, 2015, as the RO had never specifically adjudicated this matter. The RO was instructed to consider TDIU on an extraschedular basis for this time period and refer the claim to the Director of VA’s Compensation Service, if appropriate. After remand, the RO found that referral to the Director of Compensation and Services for extraschedular consideration was not warranted. As such, entitlement to a TDIU prior to June 30, 2015, was denied. Therefore, the RO substantially complied with the remand instructions of the June 2018 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for a TDIU, the case may be referred to the Director, Compensation Service (Director) for consideration of assignment of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As to education, the record reflects the Veteran has a high school education. As to employment history, Social Security Administration (SSA) records show that he last worked as a truck driver in 2007. SSA determined that he was disabled as of October 2009 due to arthritis, DM, hypertension, and a heart condition. Accordingly, his source of income has been SSA disability benefits since that time. While he is service-connected for DM, he is not service-connected for arthritis, hypertension, or a heart condition. For the purposes of entitlement to TDIU, the Board may only consider the effects of service-connected disabilities. The Veteran has claimed that service-connected disabilities, specifically PTSD, prevented him from securing or following a substantially gainful occupation prior to June 30, 2015. Turning to the medical evidence, in a May 2008 mental health treatment note, he reflected that he had trouble keeping jobs because he frequently got into altercations with others. During an April 2009 VA examination, the Veteran reported that he had been unemployed for the last one or two years due to a poor job market. He did not contend that unemployment was due to symptoms of a psychiatric disability. The examiner found that psychiatric symptoms resulted in mild to moderate difficulty in social and occupational functioning. Further, the examiner specifically denied total occupational and social impairment due to mental disorder signs and symptoms. In a June 2010 VA examination, the Veteran reported that he had been unemployed for one to two years and that his physical and mental health problems made it impossible to drive. He stated that he was often annoyed with people at work and he experienced shoulder and knee pain on the job. The examiner noted that the Veteran had held steady jobs since separation from service and found that there was not total occupational and social impairment due to psychiatric symptoms. Additionally, the examiner reported that while there were deficiencies in mood, there were no deficiencies in judgment, thinking, family relations, or work. The examiner also specifically reflected that there was not occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to PTSD symptoms. Further, the symptoms did not cause reduced reliability and productivity. He concluded that mental disorder symptoms were not severe enough to interfere with occupational and social functioning. The same examiner also noted that DM caused no functional impairment. Next, in a September 2011 neuropsychological report, a private psychologist reflected that the Veteran’s symptoms had increased and were interfering with his family, social, and occupational functioning. She also noted that additional problems, such as heart problems and chloracne, which are not service-connected, were interfering with functioning. In January 2013, a VA examiner reported occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; however, the Veteran was generally able to function satisfactorily with normal routine behavior, self-care, and conversation. Relevant psychiatric symptoms included depressed mood, anxiety, suspiciousness, and disturbances of motivation and mood. Accordingly, the medical evidence does not show that the Veteran was unemployable due solely to service-connected disabilities prior to June 30, 2015. Multiple medical examiners found that psychiatric symptoms did not cause total occupational or social impairment. Further, several nonservice-connected disabilities, including arthritis, hypertension, and a heart disorder, were noted to cause functional impairment. There is no medical evidence which suggests that service-connected disabilities rendered the Veteran unable to secure or maintain substantially gainful employment prior to June 30, 2015. As such, the medical evidence does not support the claim and referral to the Director for extraschedular consideration is not warranted. The Board has considered the lay statements and testimony of the Veteran regarding his capacity to work throughout the entire period on appeal. 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 employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise 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. Kokolas, Associate 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.