Citation Nr: 21023701 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-05 183 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis due to service-connected major depressive disorder with generalized anxiety disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s service-connected psychiatric disability precludes him from securing and following any substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1980 to October 1980. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Veteran testified at a Board hearing. A copy of the proceeding is associated with the electronic claims file. Subsequently, the matter was remanded for further development in July 2015. In April 2018, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted the April 2014 hearing was no longer employed by the Board and would be unable to participate in the adjudication of his claim. The Veteran was also informed that he had the right to a new hearing with a different VLJ. In June 2018, the Veteran responded, through his representative, that he did not want a second Board hearing. Accordingly, the Board proceeded with adjudication of the appeal and granted service connection for major depressive disorder with generalized anxiety disorder in September 2018. At that time, the Board remanded the Veteran’s claim for a TDIU in order to allow the agency of original jurisdiction (AOJ) to implement the award of service connection for major depressive disorder with generalized anxiety disorder and readjudicate the claim for a TDIU. Entitlement to a TDIU on an extraschedular basis When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. Where a veteran’s schedular rating is less than total, a total disability rating may be assigned 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 certain requirements are met. 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). In this case, the Veteran is in receipt of a 30 percent rating for major depressive disorder with generalized anxiety disorder, effective March 11, 2010. Accordingly, he does not meet the schedular requirements for a TDIU at any time during the appellate period. When a veteran fails to meet the schedular requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a), discussed above, the case may be submitted to VA’s Director of Compensation Service (Director) for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) unless the issue is initially reviewed by the Director. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Here, the issue of extraschedular entitlement to a TDIU was referred to and considered by the Director who issued a memorandum in December 2020 finding that extraschedular TDIU benefits were not warranted. Specifically, the Director noted that the totality of the evidence did not support the contention that the Veteran’s service-connected psychiatric disorder rendered him unable to secure or follow a substantially gainful occupation. As the matter has been reviewed by the Director, the Board may therefore proceed with review of whether the Veteran is entitled to an extraschedular TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Review of the record indicates that the Veteran last worked in 2002 or 2003 as a telephone systems maintenance technician. The Veteran’s educational background includes two years of college and ITT telephone technician training. See December 2011 Application for Increased Compensation Based on Individual Unemployability, VA Form 21-8940. During a February 2011 VA examination, the Veteran reported difficulty sleeping, decreased concentration, memory deficits, anxiety, low self-esteem, and social isolation. He indicated that when he takes his medications, he has no problems. The VA examiner opined that the Veteran’s psychiatric symptoms are controlled by continuous medication. The examiner indicated that the Veteran’s service-connected psychiatric disability did not cause occupational impairment, decreased work efficiency, or reduced reliability and productivity. The Veteran underwent a private psychiatric/psychological impairment questionnaire in February 2013, completed by Dr. J.R., in which he noted persistent irrational fears; depression affecting ability to function independently, appropriately, and effectively; deficiencies in mood; difficulty adapting to stressful circumstances; intrusive recollections; unprovoked hostility and irritability; inability to establish and maintain effective relationships; and deficiencies in judgment. Dr. J.R. noted that the Veteran was last employed as a telephone systems maintenance technician in 2003, at which time the company he worked for closed. He opined that the Veteran is psychiatrically impaired to an extent that he cannot function in a competitive employment environment and any attempts at employment would require vocational training and a supportive work environment with little responsibility or stress. The examiner further opined that even in a limited, low-stress work placement in a supported/sheltered supervised work setting, he would be an unreliable and unproductive employee due to his moderate to marked psychiatric disability. The Veteran underwent a private examination with Dr. R.G. in June 2014. Dr. R.G. opined that the Veteran is unable to function in any full-time or part-time competitive work situation or tolerate stressful situations due to his psychiatric impairment. He stated that the Veteran has been unable to work since 2002, as he is socially withdrawn, detached, and experiences difficulties establishing and maintaining social relationships. During his April 2014 Board hearing, the Veteran testified that he last worked as a communications technician and completed two years of college. He also testified that he is a minister. The Veteran stated that he stopped working because he had difficulty dealing with people and became reclusive, which affected his job. In October 2019, the Veteran submitted lay statements from M.G. and A.A. describing his sleep impairment, outbursts, and aggressive behavior. An October 2019 VA examiner opined that the Veteran’s service-connected psychiatric disorder causes 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. The Veteran reported having a good relationship with his wife and children and reported no significant interpersonal relationship difficulties. The examiner indicated that the symptoms associated with his service-connected disorder include depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and difficulty adapting to stressful circumstances, including work or a worklike setting. The Veteran’s VA and private medical treatment records note symptoms of anxiety, difficulty sleeping, irritability, anger outbursts, and memory and concentration difficulties. He has consistently denied perceptual disturbances, delusions, as well as suicidal or homicidal ideations during the appellate period. The Board acknowledges that the Veteran was found to be disabled by Social Security Administration (SSA) due to his hyperthyroidism, tachycardia, and nervous condition. The Veteran’s SSA records include determinations by physicians that the Veteran’s could stand, sit, or walk with normal breaks for about six hours in an 8-hour workday and occasionally lift up to 20 pounds. It was noted that his hyperthyroidism causes recurring fatigue, anxiety, restlessness, hyperactivity, insomnia, and poor memory. Additionally, it was determined that the Veteran was unable to perform his past relevant work as a telephone installer and communications technician as his work required medium to heavy exertion (lifting 50 to 100 pounds and frequent bending, squatting, walking, and standing) which exceeded his residual functional capacity. Moreover, although findings from SSA constitute probative evidence with respect to a TDIU claim, they are not dispositive or binding on VA. SSA’s legal criteria for assessing disability for Social Security benefits purposes differs in important respects from VA’s own framework for determining entitlement to TDIU. SSA bases disability on a claimant’s maximum residual functional capacity (MRFC), and whether there is substantial gainful activity that could be performed with that MRFC. A claim for TDIU focuses on unemployability based on impairments caused only by service-connected disabilities. Moreover, unlike SSA, VA does not take into account age in making its determination. Ultimately, therefore, SSA findings are not binding or controlling on VA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Based on all of the above evidence, the Board finds that Veteran’s service-connected major depressive disorder with generalized anxiety disorder has not alone precluded him from obtaining and maintaining gainful employment. The evidence does not indicate that the Veteran’s psychiatric symptoms alone inhibit the Veteran from performing occupational tasks akin to that which he has been educated and trained to perform. There is no evidence demonstrating that his symptomatology resulted in any adverse issues at work, including disciplinary actions or complaints regarding his ability to perform his work. Rather, the record indicates that the Veteran stopped working in the early 2000s after his company went out of business. Additionally, the Veteran’s SSA records indicate that the Veteran’s physical limitations due to his non-service-connected disabilities are the primary cause for his unemployment as he is unable to meet the exertion requirements. The Board further notes that the Veteran is a minister. While the psychiatric symptoms documented would undoubtedly impair the Veteran’s interactions with others, his level of impairment alone does not rise to the level of severity necessary to find that he is unable to secure or follow substantially gainful employment. The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions as well as those of private medical professionals or vocational experts are not dispositive. Here, to the extent that the February 2013 and June 2014 private examination reports indicate that the Veteran’s psychiatric symptoms alone interfere with the Veteran’s ability to secure and follow a substantially gainful occupation, these findings are isolated among a large volume of contrary evidence and are afforded less probative value. Moreover, the Board notes that the mere fact that a veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough to warrant a grant of TDIU. Van Hoose, 4 Vet. App. at 363. The Board acknowledges that the Veteran may be unable to perform certain past jobs, which were labor-intensive. However, “substantially gainful employment” is an occupation that provides an annual income that exceeds the poverty threshold for one person and is not based on a veteran’s inability to do his prior or current job. See Faust v. West, 13 Vet. App. 342 (2000). Here, the evidence of record does not indicate that his service-connected psychiatric disability precludes all employment based on his prior education and occupational experiences. While the Board does not doubt that the Veteran’s service-connected major depressive disorder with generalized anxiety disorder have some effect on his employability, the evidence of record weighs against the contention that his service-connected disability alone is of such severity so as to preclude his participation in any form of substantially gainful employment. To the extent that his service-connected disability impacts employment, the assigned schedular rating compensates the Veteran for such impairment. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.