Citation Nr: 21024079 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 09-32 132A DATE: April 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to March 10, 2018, is denied. FINDING OF FACT Prior to March 10, 2018, the Veteran did not meet the schedular criteria for a TDIU and the probative evidence of record does not reflect that he was unemployable solely due to the service-connected disabilities in effect at that time. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities prior to March 10, 2018, 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 from June 1967 to June 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A transcript of the Veteran’s June 2012 testimony at a personal hearing before the undersigned Veterans Law Judge is of record. In a February 2017 decision, the Board denied the Veteran’s TDIU claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). A May 2018 Memorandum Decision vacated the February 2017 decision and remanded the claim to the Board for further adjudication. The claim was remanded by the Board in April 2019 and September 2020. 1. Entitlement to a TDIU due to service-connected disabilities prior to March 10, 2018 The Veteran contends that he has been unable to maintain substantially gainful employment since January 7, 2010, due to his service-connected PTSD and bilateral hearing loss. In September 2020, the Board granted entitlement to TDIU effective March 10, 2018. The matter of entitlement to a TDIU rating prior to March 10, 2018 was remanded for extraschedular consideration. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran’s PTSD was rated as 10 percent disabling effective May 30, 2008; 50 percent disabling effective June 14, 2012; and 70 percent disabling effective March 10, 2018. Bilateral hearing loss was rated as noncompensable effective December 6, 2007, and 10 percent disabling effective March 12, 2013. Based on the forgoing, the Veteran does not meet the percentage standards set forth in 38 C.F.R.§ 4.16(a) for the period prior to March 10, 2018. Therefore, the Board may not consider his claim for a TDIU in the first instance but must refer it to the Director, Compensation Service. 38 C.F.R. § 4.16(b). A December 2020 Director of Compensation Service memorandum indicates that TDIU on an extraschedular basis prior to March 10, 2018 was denied. Thus, what remains for consideration on appeal before the Board is entitlement to a TDIU rating on an extraschedular basis prior to March 10, 2018. Upon review of the record, the Board finds that the most probative evidence demonstrates that the Veteran’s PTSD and bilateral hearing loss did not render him unable to secure and follow a substantially gainful occupation throughout the period under consideration. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough, since a high rating recognizes that the impairment makes it difficult to obtain and keep employment. The question is whether the claimant can perform the physical and mental acts required by employment, not whether employment can be found. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. Marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. This includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id.   On his TDIU application, VA Form 21-8940, filed in 2010, the Veteran reported that he has completed three plus years of college. He indicated that he completed a class on laboratory x-rays. He also indicated that his nonservice-connected back, left knee and left hip disabilities prevent him from remaining employed for more than weeks or months. Records from Social Security Administration (SSA) note the Veteran is receiving benefits due to orthopedic disability. He was found not to have a severe mental disorder and that his prior employment involved physical work. The SSA found that the physical nature of his prior employment and his age rendered his skills nontransferable to light work. During his June 2012 Board hearing, the Veteran reported that he stopped working after his second knee surgery, but made no mention of PTSD or hearing loss symptomology as causing or contributing to unemployability. In a June 2016 social worker evaluation, the Veteran indicated he had some symptoms of PTSD. He reported he has never engaged in any therapy for PTSD, but he found that alcohol helped to distract some of those symptoms. In February 2018, the Veteran reported that he thinks working in the hospital is a trigger for his PTSD. He shared that he thinks that his PTSD symptoms trigger him to want to drink so that he does not have to think about anything. He reported that he is thinking about finding a new job. An October 2018 VA Form 21-8940 listed PTSD and bilateral hearing loss as the disabilities that prevented the Veteran from securing or following any substantially gainful occupation. He reported that June 1969 was when his disability affected full-time employment and that July 9, 2006, was the date he last worked full-time and became too disabled to work. The employment that ended on July 9, 2006, was the last time he was employed for at least 40 hours per week. The Veteran reported that he had tried to obtain employment since becoming too disabled to work and listed all his employment from April 2000 until September 2018. He also reported other education and training before he was too disabled to work, but not since becoming too disabled to work. In an addendum statement, the Veteran reported that he had not worked in a substantially gainful capacity since July 2006, when he left his job as a fermentation technician for Kemin Industries. He asserted that he had trouble coping with people and his duties due to his PTSD and that he was self-medicating by drinking heavily, although he was attempting to stop by attending AA meetings. While the Veteran acknowledged that he left primarily because of nonservice-connected surgery, he noted he was relieved to no longer be employed on a full-time basis because it reduced the strain of his PTSD. The Veteran also reported that he had had a number of part-time jobs since 2007, none of which lasted more than a year or so. He indicated that he continued to try and work because he needed the money and needed something to distract him from his PTSD and keep him occupied. Since he was and is still unable to handle full time employment because of his PTSD, he had kept up a succession of part-time jobs that were low commitment. That had backfired on some occasions and work did cause him stress that exacerbated his PTSD and caused him to drink. In the addendum to the VA Form 21-8940 dated October 2018, the Veteran also reported that while he experienced frustration with coworkers and work in general, he avoided confrontation and bottled-up his emotions until he was no longer at work. Because of that, he usually reached a breaking point in terms of stress and frustration with a job after a few months and then he quit. He indicated that he cited his regular mission trips as the reason for resigning from his jobs and that he would find a new job upon his return. The Veteran reported that he briefly worked at a VA hospital but experienced flashbacks and was distracted by memories, which was the primary reason he resigned from this well-paying job. The Veteran indicated that he had used alcohol to self-medicate his PTSD for many years and that stress from working contributed to his drinking, though he never used alcohol at work and would still go to work after a night of drinking. Finally, the Veteran reported that he also did not believe he was capable of working in a substantially gainful capacity for these reasons and because his hearing loss affected daily life, to include having to put the phone on speaker and holding it right up to his ear, frequently having to ask people to repeat themselves or else misunderstand things entirely; and struggling to understand his wife.   In a June 2010 VA examination, the Veteran reported that he has been out of the work force since 2006 and receives Social Security disability insurance for skeletal problems and pain. The examiner indicates that the Veteran is claiming PTSD symptoms since 1969 and presented a full spectrum of PTSD symptoms. The Veteran reported that he slept five and half to six hours per night with some nightmares and occasional intrusive recall. The examiner notes that there were some depressive symptoms also present but those appeared to be from multiple sources not closely associated with the PTSD itself. The Veteran was essentially mostly sober for several years but still inclined to relapse. The diagnostic impression was PTSD, chronic depression, and alcohol dependence in brief remission. The examiner opined that the Veteran was someone who due to signs and symptoms of PTSD would have problems that are transient or mild and which would decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner provided the example that if the Veteran was required to work in a situation where he was at very close quarters with others, where it was a noisy or crowded environment or where he considered himself subject to overly close supervision, then it is likely he would develop some difficulties. In January 2019, the Veteran submitted a vocational assessment completed by J.C., MRC, CRC, CLCP, a certified rehabilitation counselor and certified life care planner with a master’s of rehabilitation counseling. The clinician notes that the Veteran has had issues with depression, anxiety, memory, concentration, irritability, detachment from others, and grossly inappropriate behavior. She opines that it is more likely than not that the Veteran has been unable to secure and follow substantially employment due to his service-connected PTSD and bilateral hearing loss since at least May 2008. She provided the rationale that the functional impacts of the Veteran’s service-connected PTSD symptoms and limitations are incongruent with competitive employment. In her opinion, the Veteran’s current symptoms including panic attacks, nervousness, hypervigilance, exaggerated startle response, daytime drowsiness from poor night sleep, and difficulty with concentration and memory prevent him from sustaining the focus and attention required of competitive employment. She explained that employers do not tolerate decreased productivity and reliability on an ongoing and consistent basis. Additionally, the Veteran’s symptoms of irritability, anger, impaired judgement, suspiciousness, and feelings of detachment from others prevent him from establishing and maintaining effective workplace relationships, consistent with his report of having been reprimanded by Kemin Industries management for difficulty getting along with others. She notes that employers do not tolerate employees engaging in verbal confrontations with others. One incident may be reprimanded and forgiven, but more than one incident generally results in termination. The inability to meet employer tolerances eliminates the ability to work in a competitive work environment, including work at the unskilled level. The Board has considered the Veteran’s educational and occupational background, in addition to the medical evidence of his impaired functional capacity due to his service-connected disabilities. Although the vocational assessment completed by J.C., opined that the service-connected PTSD and hearing loss precludes gainful employment dating back to 2008, the opinion is in direct contrast with the findings of VA PTSD examinations, SSA records, treatment records, and the Veteran’s own statements submitted historically with the appeal. The Board finds that the overall evidentiary record, including both the Veteran’s statements and the medical records in the claims file, does not support that his service connected PTSD and bilateral hearing loss rendered him unable to secure and follow substantially gainful employment prior to March 10, 2018. While the Veteran’s hearing loss results in some difficulty understanding speech in more challenging environment, and his PTSD decreases his work efficiency and ability to perform occupations task during period of significant stress, this symptomatology is not of such severity that he was rendered unable to secure to follow substantially gainful employment prior to March 10, 2018. In this regard, the March 2013 VA audiological examination noted the examiner’s opinion that the Veteran’s bilateral hearing loss did not impact his ability to work. The examination report noted that the Veteran wears hearing aid and hears well with them, and that his hearing loss does not limit his ability to perform all forms of employment. The March 2013 VA PTSD examination noted that the Veteran was working part-time at a grocery store. Post service treatment records throughout the appeal period reference that the Veteran retired, but that he was working part-time for most of the appeal period. Letters of resignation from the Veteran concerning two of these positions, dated in May 2012 and July 2010, noted that he was resigning based upon his nonservice-connected disabilities of the left knee, left hip, and back. Such letters are consistent with the Veteran’s VA Form 21-8940 dated in 2010, wherein he reported orthopedic disabilities as the basis for his unemployability, rather than his service-connected PTSD and hearing loss. In a May 2012 argument, the Veteran’s representative argued that left knee, bilateral hip and back conditions due to marathon running make it difficult to stand for too long and the pain is too great to deal with in job settings. There was no mention of psychiatric symptoms or hearing loss impacting employment at that time. Subsequent revision of the basis for the Veteran leaving work and/or suggestion that it was actually psychiatric and hearing loss symptoms as the basis for the inability to work is inconsistent with records contemporaneous to his initial TDIU claim and his claim for Social Security benefits. Thus, the Board finds the change in contentions as well as the assessment of the vocational counselor to warrant less probative weight. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In this regard, VA treatment records from August 2016 note the Veteran sought employment to keep him occupied and to avoid alcohol triggers, and that he stayed sober while employed at the fair, relapsing once the job ended. Such suggests the Veteran is capable of obtaining employment and that he sought employment to decrease alcohol consumption rather than employment increasing consumption, as has been contended. Treatment records from 2017 likewise reflect that working helped the Veteran stay sober, and that working helpful has been for his recovery. Indeed, February 2018 was when he first indicated that working in the hospital might be trigging PTSD symptoms, and that he was going to look for another job. Further, it was not until a VA Form 21-8940 he completed in 2018 that he indicated that service-connected disabilities rendered him unemployable. Additionally, the record reflects that the Veteran has traveled on mission trips, to include to Africa, with church members. While the opinion of the 2019 vocational counselor disagreed with the findings of the 2010 VA examiner, the Board assigns greater weight to the findings rendered by the psychologist at the time of examination occurring nine years previously. Vocational counselor C.R. is not a psychologist or psychiatrist, and her attempt to discount the conclusion of a licensed psychologist with a Ph.D. who personally examined the Veteran at the time nine years ago, is simply not persuasive. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the level of training, education, and expertise of a person is a factor that the Board can consider in weighing medical opinions). In summary, the Veteran did not meet the schedular requirements for a TDIU prior to March 10, 2018, and the Board finds that his disability picture does not reveal he was unemployable due to the effects of his PTSD and hearing loss. In this regard, he continued to work in part time jobs throughout the period on appeal and went on mission trips with church members. Such indicates that he was capable of engaging with people and performing in the workplace. The Board acknowledges that he worked part time, but the evidence further reflects that he left full time employment due to orthopedic disabilities, not due to his service-connected PTSD or hearing loss. In addition, he reported to the 2010 VA examiner that although he was retired, he was contemplating going back to work but would have to limit his hours to no more than 18 per week to continue receiving his Social Security benefits. Thus, the evidence reflects the Veteran was capable of the physical and mental acts of employment, as he repeatedly worked part time with care not to exceed the number of hours to impact his receipt of Social Security benefits. He was also able to engage with others on mission trips. (continued on next page)   As noted above, the question is whether the claimant can perform the physical and mental acts required by employment. See 38 C.F.R. § 4.16(a); Van Hoose, 4 Vet. App. 361. In this case, the Board finds that the most probative and persuasive evidence is against a finding that the Veteran was unemployable prior to March 10, 2018 due to service-connected disabilities, and entitlement to a TDIU rating on an extraschedular basis prior to March 10, 2018 is denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.