Citation Nr: 21024775 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-09 334 DATE: April 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The evidence reflects that the Veteran’s service-connected disabilities do not render him unable to obtain and maintain substantially gainful employment consistent with his education, training, and experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from April 1969 to November 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A September 2018 Board decision denied, in pertinent part, the claim on appeal. The Veteran appealed the Board’s September 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated the Board’s September 2018 decision with regard to the claim on appeal and remanded that portion of the appeal. This case was again before the Board in January 2020, at which time the issue currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. In November 2015, the Veteran appeared at a Travel Board hearing before a Veterans Law Judge (VLJ) who has now been appointed as the Board’s Chairman. A transcript of the hearing is of record. The law prohibits the Chairman from participating in a proceeding as an individual member, but she may participate in a proceeding assigned to a panel. The law also provides a veteran the option of additional hearing(s) before the additional two VLJs assigned to the panel. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). The Veteran was sent a letter in June 2018 asking whether he desired additional hearings and he responded that he did not. Therefore, the Board will proceed with adjudication. The Board notes that the Veteran perfected an appeal related to the issues of service connection for hepatitis, ischemic heart disease, and peripheral neuropathy of the bilateral upper and lower extremities. However, the Veteran requested a Board hearing for those issues. As a result, those issues are not currently before the Board, but will be the subject of a future Board decision, if otherwise in order. Entitlement to a TDIU The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not sufficient. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In arriving at a conclusion, consideration may be given to the 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 United States Court of Appeals for Veterans Claims has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. 38 C.F.R. § 4.16(a). Throughout the period on appeal the Veteran is service connected for PTSD rated at 30 percent from December 7, 2011 to November 18, 2015, and 50 percent thereafter; duodenal ulcer rated at 20 percent; and tinnitus at 10 percent, with a combined rating of 50 percent prior to November 18, 2015 and a 60 percent rating thereafter. At no point during the period on appeal does the Veteran meet the requirements for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16(b), however, referral to the Director of Compensation Service (Director) for extraschedular TDIU consideration is available if the veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. In April 2011, VA sent a letter to the Veteran advising him of the evidence necessary to substantiate a claim for TDIU and requested that he complete VA Forms 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) and 21-4192 (Request for Employment Information). The Veteran did not respond to this request and he does not assert that he did not receive the request for information. The Board notes that the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development. See Olson v. Principi, 3 Vet. App. 480, 483 (1992). In this case, referral to the Director for extraschedular consideration is not warranted. The record reflects that the Veteran has a high school education as well as attendance in some college courses. He also attended two trade schools and earned a welding certificate. During the Veteran’s approximately 20-month active military career, he worked as an infantryman, and no education or training is noted on his DD Form 214 (Certificate of Release or Discharge from Active Duty). Several of the Veteran’s VA examinations note a three-decade employment history as a postal worker. He reported at his June 2016 VA PTSD examination that he retired in 2012. After weighing all the evidence, the Board finds the greatest probative value in the VA treatment records and examinations. VA treatment records show no indication that the Veteran’s service-connected disabilities either individually or in total combine to render him incapable of obtaining or maintaining substantially gainful employment during the period on appeal. ON this point, various medical examinations have addressed the functional impairments associated with the Veteran’s service-connected disabilities. In September 2011, the Veteran was afforded a VA audiological examination for his currently service-connected tinnitus. At that time, he reported constant bilateral tinnitus, and the examiner indicated that the Veteran’s tinnitus did not impact ordinary conditions of daily life. The remaining evidence of record, including VA and private treatment records, is negative for evidence relating to the functional impairment of his tinnitus or even continued complaints of tinnitus symptomology. Based on the evidence of record, the Board does not find that the Veteran’s tinnitus would preclude him from obtaining and maintaining substantially gainful employment consistent with his education, training, and experience. Rather, the evidence shows only mild impairment. As to his service-connected duodenal ulcer, the Veteran was afforded a VA examination in September 2011. At that time, the Veteran reported that his ulcer was productive of severe symptoms and indicated that he experienced abdominal pain less than once per month. The examiner reported that the Veteran’s duodenal ulcer did not impact his ability to work. At a November 2011 VA general medical examination, the examiner reported that the Veteran’s duodenal ulcer was productive of occasional flare-ups of heartburn, nausea, vomiting and epigastric pain but noted that he responded well to his medications and his symptoms were controlled. The examiner indicated that the Veteran’s ulcer would not render the Veteran unable to gain or maintain gainful physical or sedentary employment. The remaining evidence of record, including VA and private treatment records, is negative for evidence relating to the functional impairment of his duodenal ulcer. While VA treatment records during the period on appeal show continued treatment for this disability, there is no further evidence relating to the functional impairment of this disability. Based on the evidence of record, the Board does not find that the Veteran’s duodenal ulcer would preclude him from obtaining and maintaining substantially gainful employment consistent with his education, training, and experience. The Board acknowledges that his ulcer results in the impairment listed above; however, such impairment is not so severe as to interfere substantially with employment. Turning to the Veteran’s PTSD, the medical evidence of record does not contain evidence throughout the appeal period that the Veteran’s PTSD has affected his ability to obtain or maintain substantially gainful employment. In this regard, following VA examinations in August 2010 and December 2011, the examiners reported that the Veteran was employed at the time of the examinations and that, although he dreaded getting up and going to work due to his PTSD, he had nonetheless been able to continue until he retired in 2012. The examiners reported that the Veteran’s level of occupational impairment was productive of, at worst, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. At a November 2015 private examination and June 2016 VA examination, the examiners noted that the Veteran’s PTSD was productive of, among various symptoms, difficulty adapting to stressful circumstances, including a work or worklike setting. However, the June 2016 VA examiner reported that the Veteran’s PTSD was most productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Board acknowledges the Veteran’s hearing testimony in November 2015, that during the week he gets panicky, or a little nervous or upset. He described this as happening a few times per week while his spouse indicated this occurred daily, although it was not all throughout the day and instead was “just off and on.” The Veteran also testified to hearing voices and blood rushing through his veins at times. However, the Veteran’s description was essentially that he thought he heard something so he would check to see what was going on. He did not describe actual hallucinations or delusions. Collectively, the evidence of record shows the Veteran has the mental ability to obtain and maintain substantially gainful employment. Overall, at worst, the Veteran’s level of occupational impairment has been described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Thus, the Veteran’s PTSD does not preclude employment. Importantly, the Veteran previously noted at his November 2015 hearing before the Board that he worked unloading trucks and that he was trained as a welder, which suggests he is qualified for employment with limited personal interactions. Additionally, the Board finds that the impairment from the Veteran’s tinnitus and duodenal ulcer disabilities combined with impairment from his PTSD, do no prevent sedentary or physical work with limited personal interactions. To that end, there is no indication of the record that the symptoms of one or more of these disabilities are exacerbated by the presence of symptoms of the other disability or that their combined affect is to such a level of severity that the Veteran is prevented from obtaining and maintaining substantially gainful employment. The Board notes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). However, the Veteran’s contentions and medical evidence of record do not reflect any severe impairments that prevent him from obtaining or maintaining employment. While the Board does not wish to minimize the nature and extent of the Veteran’s overall service-connected disabilities, the evidence of record does not support his claim for a TDIU. The Board reiterates that the issue is not whether the Veteran is unemployed, or has difficulty finding employment, but rather, whether the Veteran is capable of performing the acts required by employment. See Van Hoose, 4 Vet. App. at 363. While the Board is cognizant that the Veteran may be precluded from some types of employment, the preponderance of the evidence demonstrates that the Veteran is not precluded from securing and following gainful employment. (Continued on the next page)   In sum, given the Veteran’s education, skill, and work experience and the impact he experiences from his physical and mental disabilities, the Board cannot find that the Veteran’s service-connected PTSD, duodenal ulcer, and tinnitus, either alone or in combination, prevent him from obtaining or maintaining substantially gainful employment. The totality of the competent evidence of record weighs against finding the Veteran unable to obtain or maintain substantially gainful employment. Accordingly, entitlement to a TDIU is not warranted. In this case, the preponderance of the evidence is against entitlement to a TDIU and the claim must, accordingly, be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans’ Appeals MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher O'Donnell, 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.