Citation Nr: 21023939 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-05 264 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD), to include on an extraschedular basis, is denied. FINDING OF FACT The evidence of record does not show that the Veteran’s service-connected PTSD renders him incapable of securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for establishing entitlement to a TDIU are not 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 had active service from May 1966 to February 1970. The current appeal before the Board of Veterans’ Appeals (Board) arose from an October 2014 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for PTSD and assigned a 30 percent disability rating, effective June 25, 2014. During the course of the Veteran’s appeal for a higher rating for the service-connected PTSD, the Board determined that the issue of entitlement to a TDIU had been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). While the Board disposed of the higher rating claim for PTSD in a December 2019 decision, the Board also, at that time, remanded the TDIU claim to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. Entitlement to a TDIU Total disability will be considered to exist when there is present any impairment of mind or 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 are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A TDIU also may be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disability or disabilities but who fail to meet the percentage standards set forth in § 4.16(a). The Board, however, is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is first referred to the Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). For the Veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, consideration may be given to his level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, service connection is in effect only for PTSD, which is rated as 50 percent disabling for the entirety of the appeal period. Thus, the Veteran does not meet the schedular percentage requirements for TDIU eligibility. 38 C.F.R. § 4.16(a). For the reasons described below, the Board also finds that a referral of the TDIU for extraschedular consideration is not warranted, as the current record does not support a finding that he is unable to secure and maintain substantially gainful employment due solely to his service-connected PTSD. 38 C.F.R. § 4.16(b). Pursuant to the Board’s December 2019 remand directives, the AOJ sent the Veteran a letter in March 2020 notifying him of the evidence required to support an award of a TDIU. In May 2020, the AOJ sent him a copy of VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and a copy of VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. The AOJ asked the Veteran to return the completed forms, including one VA Form 21-4192 for each of the employers identified on the VA Form 21-8940. The Veteran, however, did not respond to the AOJ’s correspondence. Therefore, the Board will decide this matter based on the evidence of record as it currently stands. Further review of the relevant and competent evidence of record, which includes the Veteran’s VA treatment records and VA examination reports, when taken in total, is not adequate to demonstrate that the Veteran is unable to obtain or maintain substantially gainful employment on account of his service connected PTSD. In a statement received in February 2015, the Veteran’s wife reported that the Veteran’s PTSD resulted in a loss of concentration which would eventually lead to his job loss. Apparently referring to a specific incident, she noted that written warnings stated that he had a lack of interest for his work, was abrupt with fellow employees, often accused others of incompetence, and distracted others. A September 2014 VA PTSD examination report noted that the Veteran had worked in manufacturing, doing purchasing and inventory control, for 10 years, but that he was forced into early retirement approximately three year prior to the examination, as a result of conflicts with younger management strategies. He reported currently working a part-time job in the purchasing department of a small company. During a September 2019 VA-contracted examination, the Veteran reported working part-time in the supply warehouse of an optics company. He reported that his relationship with his coworkers and supervisor was going okay (much better than in prior jobs when he was working full-time). He noted, however, that he had been reduced to two days/week and that he believed this may be causing his difficulty in getting along with others. The examiner noted that the Veteran described very rigid views about how his coworkers needed to behave. In a September 2019 Individual Employability Statement, a VA-contracted psychologist noted that the Veteran had symptoms of intrusive thoughts which interfered with his ability to stay focused on tasks at hand and that he had significant difficulty functioning around other people, that he had difficulty functioning as a team member, and that he felt uncomfortable around others. Review of the Veteran’s VA clinical treatment records indicates that he reported having retired from working as an office manager and that he was currently working in a warehouse one day per week. More recent treatment reports noted that the Veteran had continued to work in the field of inventory control a few days per week. As of October 2020, he was still working in this capacity. The Board acknowledges that the Veteran and his wife are competent to report observed symptoms of his service connected PTSD. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Also, their reports are credible with respect to the Veteran’s symptoms and their effects on his activities. Neither the Veteran nor his wife are competent, however, to identify a specific level of disability according to the appropriate Diagnostic Codes or to assess whether the symptoms preclude employment. Here, the evidence indicates that the Veteran had continued to work after his retirement, albeit apparently only on a part-time basis. Based on the evidence of record, however, the Board simply cannot determine whether the Veteran has indeed been precluded from securing and maintaining substantially gainful employment as a result of service-connected PTSD. The failure to complete the VA Form 21-8940, and VA Forms 21-4192, as appropriate, deprives VA of valuable information as to the Veteran’s employment history, educational history, and training—and it deprives VA of information pertaining to his income, which is necessary to determine properly whether his service connected PTSD renders him unable to secure and follow substantially gainful employment in light of his education and occupational experience. While VA is obligated to assist a claimant in obtaining evidence necessary to substantiate his or her claim, 38 U.S.C. § 5103A (a), “[t]he duty to assist is not always a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A veteran is obliged to cooperate in the development of a pending claim. Id. While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability level, the evidence of record is simply insufficient to support a contention that his service-connected PTSD, alone, renders him unable to secure or follow a substantially gainful occupation. Although the evidence clearly established that the Veteran’s PTSD produces some, even significant, impairment, including in his ability to function in an employment capacity, the evidence of record is insufficient to establish that gainful employment is indeed precluded solely due to the service-connected PTSD. In this regard, the Board notes that the Veteran has not identified or submitted any specific, competent evidence demonstrating that his service-connected PTSD (CONTINUED ON NEXT PAGE) precludes him from securing and maintaining substantially gainful employment, thereby entitling him to a TDIU. Therefore, referral of the matter of entitlement to a TDIU for extraschedular consideration is not warranted in this appeal. The Board, therefore, finds that the claim for a TDIU must be denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.