Citation Nr: 21023384 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-41 240 DATE: April 20, 2021 ORDER Entitlement to a total disability rating for compensation due to individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1972 to October 1973 and from December 1990 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2014 rating decision that denied entitlement to TDIU. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at September 2019 videoconference hearing and a transcript of the hearing has been associated with the claims file. In a February 2020 decision, the Board denied entitlement to a TDIU rating. In October 2020, the Veteran and the Secretary of VA (parties) entered into a joint motion for remand (JMR), which was granted by the United States Court of Appeals for Veterans Claims (Court) later in the same month. The JMR stated that remand was warranted because the Board failed to provide an adequate statement of reasons or bases for its denial. Specifically, the parties stated that the Board improperly found “it significant that the Veteran’s initial TDIU applications did not include his psychiatric disability as a claimed condition that precluded employment,” and failed to address whether the Veteran’s service-connected dysthymic disorder, claimed as depression, impacts his ability to meet the requirements of substantial gainful employment. The parties clarified that the Veteran noted his service-connected depression in his December 2015 TDIU application as preventing him from securing substantially gainful employment and, further, the Veteran testified in September 2019 that depression, “more than anything,” has been the cause of his inability to hold down a job. The matter is again before the Board. The Veteran asserts that he is precluded from securing or following substantially gainful employment due to his combined service-connected disabilities, but testified that the primary issues were caused by depression and his bilateral foot disabilities. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that 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 because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service-connected for dysthymic disorder (rated as 70 percent disabling from June 27, 2010), bilateral pes planus (rated as 0 percent disabling from October 4, 1973, as 10 percent disabling from December 31, 1998 to January 30, 2002, with each foot rated separately as 10 percent disabling from January 31, 2002 to February 22, 2010, and as 50 percent disabling from February 22, 2010), bilateral tinnitus (rated as 10 percent disabling from April 18, 2011), left and right hallux valgus (each rated as 0 percent disabling from February 22, 2010), right and left residual scars status post great toe bunionectomies (each rated as 0 percent disabling from February 22, 2010), and bilateral hearing loss (rated as 0 percent disabling, from June 24, 2013). Based upon the above, the Veteran’s combined disability rating during the relevant appeal period is 90 percent from June 27, 2010. As such, the Veteran meets the schedular criteria for a TDIU rating for the entire period on appeal. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment. The reasons follow. The Veteran’s original TDIU application in November 2013 stated that he became too disabled to work in September 2010. On a subsequent TDIU application in December 2015, he stated that he had become too disabled to work in August 2015. The Veteran has reported that he experiences pain and swelling in his feet resulting from his multiple service-connected bilateral foot disabilities. Treatment records show a remote history of using a cane for ambulation but generally do not indicate the use of a cane during the relevant period. In August 2011, the Veteran was described as a “community ambulator without device.” He stated that he enjoys swimming and jumping rope. In a January 2013 Function Report submitted to the Social Security Administration (SSA), the Veteran reported that he experienced chronic pain that impacted his mobility and activities of daily living. However, when asked what problems he has with matters of personal care (dressing, bathing, hair care, shaving, feeding, toilet use, other), the Veteran primarily referred to pain in the wrist, pelvis, neck, and knees, areas for which the Veteran does not have service-connected disabilities. Only for bathing did the Veteran indicate problems associated with ankle pain, but the Veteran’s feet were not mentioned. The Veteran also reported the use of a cane for ambulation, which is not documented in concurrent medical records. Regardless, the Veteran indicated that he is able to prepare his own meals, do household chores, perform occasional yardwork, use public transportation independently, and go shopping in stores. A November 2013 treatment record reported the Veteran to be dancing during a counseling session when he was in a particularly good mood. The Veteran was noted to have a normal gait and station during treatment in May 2014. Treatment records in June 2014 documented that the Veteran had no problems with his activities of daily living. It was documented that the Veteran enjoys bowling, swimming, singing, dancing, and roller skating. However, in the same month, a VA examiner concluded that the Veteran’s pes planus resulted in discomfort and pain in both feet with standing and walking, which made it very difficult for him to participate in any job that involves standing and walking. Notably, the examiner specifically did not check any box indicating the use of a cane or other assistive device other than “soft shoes with arch support.” The record indicates that the Veteran has received little treatment for his foot disabilities since that time without significant exacerbations of symptoms. More recent treatment records from March 2019 document the Veteran’s report of some worsening pain due to his bilateral arches and flat feet, but his overall symptomology of pain and swelling had remained consistent. He stated that he was taking Gabapentin 900 mg daily for pain. On examination, while the Veteran was found to have some diminished sensation, he also recorded normal range of motion, full strength, and normal reflexes bilaterally. He reported the use of orthotic shoe inserts, but, again, there was no documentation of the Veteran using an assistive device. Regarding the Veteran’s dysthymic disorder, he received recurrent psychiatric counseling, primarily relating to his goal of achieving abstinence from alcohol, in 2013 to 2014. The Veteran indicated that he would experience depressive symptoms when he drank; however, the Veteran’s symptoms were treated with routine medication management, and the record does not show significant exacerbations requiring urgent or inpatient treatment. In a January 2013 Function Report for SSA, the Veteran reported that he had no problem at all getting along with authority figures and that he’d never lost a job due to trouble getting along with others. He further reported regularly visiting a senior citizens center, church, and weekly AA meetings. VA treatment records, although limited, generally reflect the Veteran to record unremarkable findings on mental status examination. In August 2013, the Veteran was alert, oriented, and cooperative with coherent and logical thoughts. In November 2013, the Veteran was described as well-groomed, cooperative, alert, oriented, engaging, and in a good mood. In March 2014, the Veteran was described as alert, oriented, calm, cooperative, and talkative, with good memory, insight, and judgment. The Veteran relapsed on alcohol in May 2014, but records do not suggest significant exacerbations of any psychiatric symptoms. The Veteran reported that he agreed to monitor the pool at his apartment complex that summer. On multiple occasions in June 2014, the Veteran was noted to be alert, attentive, and fully oriented. He was described as cooperative and reasonable, with a normal, coherent thought process, no unusual thought content, good insight and judgment, normal cognition, and no suicidal ideation. He reported being involved in a choir group and that he enjoyed singing and was looking forward to choir practice. Although the Veteran testified that depressive symptoms are a primary factor in his unemployability, the record does not indicate that the Veteran continued with consistent treatment and does not demonstrate symptom exacerbations resulting in significant functional deficits. Notably, the Veteran’s 70 percent disability rating for his service-connected dysthymic disorder from June 27, 2010 contemplates occupational and social impairment with deficiencies in most areas; however, the Board cannot equate this with a finding that the Veteran is precluded from securing or following a substantially gainful occupation, especially in light of the totality of the evidence, including the Veteran’s continued education, utilization of VA vocational rehabilitation services, and additional work attempts during the relevant period, discussed in greater detail below. As to the Veteran’s hearing loss and tinnitus, upon VA audiological examination in May 2014, the examiner found that the Veteran’s hearing loss resulted in difficulty hearing and understanding, especially if he is in a group or crowd, while his tinnitus made it difficult for him to fall asleep and stay asleep. However, records from the same time period reflect the Veteran to participate in many social activities without significant hearing problems, including participating in choir practice, attending church and AA meetings, taking classes for massage therapy and medical billing, and visiting the senior citizens center. The Veteran has demonstrated the ability to engage in conversation without difficulty, including at his 2019 Board hearing. Treatment records do not reflect communicative deficits resulting from hearing loss or tinnitus and generally indicate the Veteran’s ability to interact effectively with treating providers. He has not required more than routine follow-up relating to his hearing-related disabilities. The Board notes that, while the Veteran has repeatedly asserted that he is precluded from securing or following a substantially gainful occupation, he has made multiple inconsistent statements of record regarding his medical history, education, and employment, which are fundamental facts when considering entitlement to a TDIU rating. For example, the Veteran’s initial November 2013 TDIU application reported that his disability affected full-time employment in September 2010, when he became too disabled to work, but that he last worked fulltime in April 2009 as a valet for Central Parking System, where he worked from 2007 to 2009, with his highest earnings being $1,920 per month. He also stated he did not leave his last job due to disability, without further explanation, and reported an educational history including four years of high school with additional training in 2012 for medical billing and coding. However, his subsequent August 2014 TDIU application reported that he became too disabled to work in April 2009, that his highest earnings were $3,264 per month, and that his educational history was limited to three years of high school. Later, in December 2015, the Veteran submitted another TDIU application that included his service-connected depression and reported that he became too disabled to work on August 6, 2015. He reported that the most he ever earned in one year was in 2008, when he earned $12 per hour; however, he did not report any specific information regarding prior employment or education history, but indicated that he did not leave his last job due to disability. VA noted the difference in the Veteran’s documentation of becoming too disabled to work in August 2015 and wrote the Veteran asking for clarification of his employment in June 2016. In the letter, it asked the Veteran inform VA of work he performed from 2009 to 2015 and noted that he had told an August 2011 VA examiner that he was working as a manicurist. The Veteran did not respond to this request, and the agency of original jurisdiction noted such fact in the August 2016 statement of the case. Regarding the Veteran’s education, training, skills, and work history, he has a varied job record and diverse skillset. In his initial TDIU application, the Veteran reported that he last worked full time in April 2009 as a valet. His resume shows he worked as a valet, traffic director, and a cashier within the spectrum of this employment. The Veteran later indicated that he stopped working at that job because he relocated to a different state. He testified that he is a high school graduate with additional training in medical billing and coding, though he noted that he failed his certification examination after graduation. 2010 examination records document the Veteran’s report that he had started culinary school but was unable to stand for long hours due to foot pain, so he had to take a job where he could sit and became an esthetician and skin care specialist. He has reported an approximately 30-year history in this field as a manicurist, off and on. Upon VA psychiatric examination in March 2011, the Veteran reported that he committed a felony for check forgery in 2009 and that he had worked in parking services at a hospital for two years, where he had a good relationship with his supervisor and coworkers. In August 2011, he reported sporadic unemployment but noted that he had been working for the past three months as a manicurist. VA treatment records from April 2012 document the Veteran’s report that he was enrolled in school for medical billing. He noted that he had obtained his cosmetologist license in Tennessee and stated that he would be taking some classes after he finished the medical billing courses. In December 2012, he reported that he had graduated from school and still had to pass his medical billing and coding certification in order to find gainful employment. He planned to study and audit classes to prepare for his test, but he later testified that he was not able to pass his certification after graduation. Treatment notes also indicated that the Veteran reported graduating massage therapy school in October 2013. In July 2014, the Veteran reported he finally had money to pay for his massage therapist certification test. It is unclear if the Veteran obtained his certification, but he was noted to have “provided a massage for a new client” during the same time period. In his January 2013 Function Report, the Veteran stated that computer learning is one of his hobbies. At his 2019 Board hearing, he testified that he had recently attempted to work in parking service in September 2018. As previously noted, the Veteran indicated in his most recent TDIU application that he became too disabled to work in August 2015, after listing May 2009 on a previous application. The Veteran testified that from May 2009 to August 2015, he was not trying to work because he was in alcohol rehabilitation. Despite this, the Veteran did continue with vocational development in areas including massage therapy and medical billing/coding during this time period. However, the Veteran has not signaled to any demonstrable worsening of his overall condition to explain why he became unemployable in August 2015, other than suggesting that this is when his alcohol rehabilitation ended. Treatment records also indicate that August 2015 is when the Veteran’s probation ended relating to his conviction for cashing bad checks. Regardless, the Veteran’s diverse job history and varied vocational pursuits demonstrate a capacity for learning, training, and adaptation that would facilitate a return to substantially gainful employment. As to the Veteran’s physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences chronic pain and recurrent swelling with some decreased sensation in his feet. However, the record indicates that the Veteran has remained capable of performing a wide array of physical activities and has remained independent in activities of daily living. He is capable of ambulating throughout the community and using public transportation independently without the use of an assistive device. The Veteran received only sporadic treatment without significant exacerbations requiring inpatient or urgent care. The Veteran also recorded normal range of motion, full strength, and normal reflexes bilaterally on examination in 2019. Thus, as suggested by the 2014 VA examiner, it appears that the Veteran’s foot disabilities can be accommodated by restricting the Veteran from occupations in which he would be required to spend the majority of his time standing or walking. Despite the Veteran’s hearing loss and tinnitus, he has demonstrated the ability to converse without difficulty and to socialize appropriately. Therefore, it seems that the Veteran’s hearing loss and tinnitus can be accommodated by restricting the Veteran from work in crowded public spaces with high noise exposure. Accordingly, the evidence shows that the Veteran was physically capable of performing substantially gainful employment during the relevant period. As to the Veteran’s ability to perform the mental requirements of substantially gainful employment, the Board acknowledges the Veteran’s history of depressive symptoms associated with his dysthymic disorder. However, the longitudinal evidence does not indicate that his symptoms have resulted in significant functional impairments. The Veteran’s treatment records reflect generally unremarkable findings on mental status examination, including that the Veteran is alert and oriented, cooperative, calm, attentive, and reasonable, with a normal, coherent thought process, no unusual thought content, good insight and judgment, normal cognition, intact memory, and no suicidal ideation. Although the Veteran reported that he had difficulty and was unable to complete his certification for medical billing, he has engaged in vocational rehabilitation, and he graduated from massage therapy school in 2013. He has also reported regular social engagement in activities such as joining a choir, visiting church and the senior citizens center, and attending regular AA meetings, in addition to his vocational pursuits. Thus, he is able to interact appropriately in social situations. The Board finds that the Veteran’s dysthymic disorder can be accommodated by restricting the Veteran from occupations that would require advanced training or additional education. The evidence shows that the Veteran’s service-connected psychiatric disorder does not preclude him from performing the mental requirements of substantially gainful employment. Based on the above assessment of the Veteran’s physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment. Although the Veteran testified that he was unable to continue with his past job as a manicurist because he had to spend to spend too much time on his feet, this would not appear to be representative of all manicurist positions, and the Veteran would appear capable of obtaining a manicurist position that only works on hands, which could primarily be performed while sitting. This is a field in which the Veteran has experience and expertise. As noted above, the Veteran previously reported that he specifically became an esthetician and skin care specialist, as opposed to pursuing a culinary career, because he needed a job where he could sit, which led to his work as a manicurist. Alternatively, there are a wide range of occupations that the Veteran could perform despite his service-connected disabilities. For example, given the Veteran’s reports of computer learning as a hobby and the familiarity he would have gained during medical billing/coding training, the Veteran could perform jobs involving data entry. With data entry, the Veteran would be primarily responsible for entering data into a system. These jobs can often be done from home, would not require significant training or expertise, and could be performed while seated. The Veteran could also perform an occupation such as telemarketer, where the employee makes calls and reads a script, which does not require extensive training or experience, would require minimal exertional activity, and could be performed while seated. Additionally, the Veteran appears capable of performing certain cashier or assembly line positions, or work as a library or museum attendant in some settings, entry-level positions that may allow the Veteran to spend most of his time seated without excessive noise exposure. As documented in his resume, he performed the duties of a cashier while working as a valet, which means he has experience in these types of jobs. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment due to his service-connected disabilities during the relevant period. For all these reasons, the Board finds the preponderance of the evidence is against a finding that the Veteran has been precluded from securing or following a substantially gainful occupation due to his service-connected disabilities for the period on appeal. As the probative evidence of record weighs against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim of entitlement to a TDIU rating is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.