Citation Nr: 21022798 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-14 267 DATE: April 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his educational and vocational experience. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1963 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded by the Board in September 2018 and April 2020 for further development. The case has now returned to the Board for adjudication. Total disability will be considered to exist 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. 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 as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant's case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. In determining unemployability, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of earning more than marginal income (outside of a protected environment as determined by the U.S. Department of Commerce as the poverty threshold for one person and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The appropriate standard for the Board when determining whether to remand a claim for TDIU pursuant to §4.16(b) is whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Turning to the facts of this case, the Veteran’s service-connected disabilities consist of PTSD with alcohol use disorder rated as 70 percent disabling, tinnitus rated as 10 percent disabling, and bilateral hearing loss rated 10 percent disabling. The Veteran met the schedular eligibility for a TDIU rating as of July 19, 2017, when his rating for PTSD was increased to 70 percent. 38 C.F.R. § 4.16(a). However, prior to July 19, 2017, the Veteran did not meet the schedular eligibility for TDIU. Thus, for the period on appeal prior to June 19, 2017, the Board many only consider whether TDIU may be referred on an extraschedular basis. 38 C.F.R. § 4.16(b). The Veteran asserts that he is unable to work due to his service-connected posttraumatic stress disorder (PTSD) with alcohol use disorder and bilateral hearing loss. Upon review of the evidence, the Board finds that entitlement to TDIU is not warranted. In a September 2000 VA Psychological Evaluation report, the Veteran reported that he had been successfully employed since his service in Vietnam. In a January 2010 mental status evaluation, the Veteran indicated that he had started a business for a Housing and Urban Development (HUD) project managing a rental property and that he had done some carpentry work over the years. During a September 2010 VA examination for PTSD, the Veteran reported that he had to quit his business because he became too angry and ashamed in public, and he indicated that he had difficulty interacting appropriately with family, peers, and customers. In a June 2012 VA examination for PTSD, the Veteran indicated that he had not worked for 10 years. In his April 2014 VA Form 21-8940, Application for Increased Compensation based on Unemployability, the Veteran indicated that he had last worked in September 2002 as the co-owner of an apartment complex and that he left his last job because of his disability. The application also noted that he had completed two years of college. He also completed a VA Form 21-4192, Request for Employment Information in Connection with Claim, which indicated that he performed work as a landlord of a low-income housing project, and that he left due to stress. In an April 2014 letter, C.T. (initials used to protect privacy), a private clinical social worker, indicated that the Veteran had difficulty obtaining and holding a job due to health issues, relational problems, and irritability. During an April 2014 VA examination for the Veteran’s hearing loss, the examiner indicated that his hearing sensitivity may affect his ability to communicate in certain occupational settings. In a May 2016 VA examination for hearing loss, the Veteran reported that he could not hear or understand normal conversation, especially when there is background noise. He also reported that he could not hear over the telephone or hear his family members or the television. During a May 2014 VA examination, when asked to comment on the functional impairment of the Veteran related to his PTSD symptoms, the examiner indicated that the Veteran described minimal impact of PTSD symptoms on his ability to actually complete work tasks, but significant inconsistency on the job due to his leaving employment when he was working for other people. The examiner did note an ability to work if the Veteran was working for himself and that he would likely do best in jobs that require less customer service or social interaction and are more task oriented. The examiner also indicated that while some of the Veteran’s PTSD symptoms might intermittently impact occupational functioning and reduce his reliability if he were working, the Veteran voluntarily left the workforce due to his age/retirement and sold his housing project to his previous partner. The examiner also noted that although the Veteran had not attempted to work since then, he has still engaged in some work-like activities, including helping in his wife’s business. In a November 2017 letter, a VA vocational rehabilitation counselor indicated that the Veteran had not overcome the limiting effects of his service-connected disabilities and that he was not reasonably feasible for either continued training or suitable competitive employment at this time. The counselor also indicated that while the Veteran was approved for many vocational training programs and goals, he was unable to successfully complete them. In a December 2017 special report of training, the same vocational counselor indicated that the Veteran had been successful in maximizing his independence for daily living and decreasing his dependence on others. When it was determined that the Veteran was not feasible for employment, he was placed under a comprehensive independent living plan which he was able to complete. The report noted that the intent of the independent living plan is to enable individuals to the maximum extent possible, to increase independence, and when feasible, improve his or her potential to work. The counselor concluded that the Veteran had been rehabilitated and that all of his rehabilitation goals had been successfully completed. March and July 2019 VA treatment records documented that the Veteran was working hard with assisting with construction being done on his home. In an August 2019 VA examination for PTSD, the examiner indicated that the Veteran had occupational and social functioning in most areas that affects his social, occupational, judgment, relationships, and overall thinking skills. The examiner noted that the Veteran was not currently employed, but had worked in construction for 30 years, and had last worked in 2000 or 2001. In an October 2020 VA opinion for individual employability, the examiner determined that with proper hearing or adaptive devices, the Veteran had no work restrictions due to his hearing loss and tinnitus. The examiner opined that the Veteran could work in a position that did not require phone use, or communication in noisy environments, and that the use of assistive listening devices or frequency modulation systems could be very helpful in these situations. In a separate October 2020 VA opinion, the examiner concluded that the Veteran had no job-related difficulties secondary to his service-connected mental health issues. The examiner indicated that there was no specific indication of occupational impairment associated with mental disorder symptoms, and that per the April 2014 VA examination, the Veteran retired at the age of 62 years old and started to receive social security administration benefits. The examiner also noted that the Veteran had quit previous jobs, but was never fired. He also indicated that he had hated his last job because he had to deal with individuals in public housing. Having considered the medical and lay evidence of record, the Board finds the Veteran’s service-connected disabilities, when considered in its totality, do not preclude him from securing or following a substantially gainful occupation consistent with his educational and vocational history. While the record indicates that the Veteran experiences some occupational impairment with regard to his PTSD, he was able to successfully maintain employment for close to 30 years and as noted in his May 2014 VA examination for PTSD, he voluntarily left the workforce due to retirement. The Board notes that the Veteran indicated in his VA Form 21-8940, Application for Unemployability, that he left due to stress from his PTSD and that he was unable to work for others, however the May 2014 VA examiner noted that the Veteran could do jobs that required less social interaction and were more task-oriented. The examiner also noted that the Veteran was able to complete a job when working for himself. The record reflects this, as the Veteran had worked as a property manager for several years. The Board acknowledges that the Veteran’s vocational counselor indicated that the Veteran had not overcome the limiting effects of his service-connected disabilities and that he was not reasonably feasible for either continued training or suitable competitive employment at the time, however it is unclear if the counselor considered the Veteran’s medical history or reviewed his claims file. On the other hand, multiple VA examiners, specifically the May 2014 and October 2020 VA examiners, specifically found that the Veteran was able to perform certain types of employment. These examiners considered the Veteran’s medical and employment history, and based their opinions on a review of the claims file. Moreover, the employment described by these examiners was consistent with the Veteran’s prior experience as a carpenter and property manager. Notably, in the October 2020 VA opinion, the examiner indicated that the Veteran’s dislike for his job as a property manager had to do more so with the type of people he was dealing with, rather than as a result of his service-connected mental health issues. In addition, more recent VA treatment records document that the Veteran has been able to assist with construction related tasks on his home. Thus, the Board has afforded greater probative value to the opinions rendered by the May 2014 and October 2020 VA examiners. With regard to the Veteran’s lay statements regarding unemployability, the Board acknowledges his statements regarding his inability to work due to symptoms from his service-connected disabilities. While the Veteran is competent to describe his symptoms from his service-connected disabilities, he is not competent to offer an opinion regarding the functional impact his service-connected disabilities have on his ability to maintain gainful employment, as this is beyond the scope of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The competent and objective medical findings by skilled professionals provide the most persuasive evidence regarding the limitations posed by the Veteran’s service-connected disabilities. As such, the lay assertions in this regard have limited probative value. Moreover, the Veteran’s limitations and symptoms associated with his service-connected PTSD and hearing loss are appropriately compensated in accordance with the currently assigned ratings. Notably, the Veteran is assigned a 70 percent rating for his PTSD which reflects occupational and social impairment with deficiencies in most areas. (Continued on the next page)   While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability, the evidence of record does not support his claim that his service-connected disabilities alone render him unemployable. Although they produce some impairment, the evidence does not reflect gainful employment was precluded solely due to the Veteran’s service-connected disabilities. As discussed above, prior to July 19, 2017, the Veteran did not meet the schedular criteria for TDIU. The evidence of record includes evidence from clinicians indicating that his service-connected disabilities do not render him incapable of performing substantially gainful employment when considering his education, work experience, and residual functional capacity. As the persuasive competent evidence of record demonstrates that the Veteran is not unemployable, the Board finds no basis to refer this claim for extraschedular consideration of TDIU. See Ray, 31 Vet. App. at 66. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Saikh, 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.