Citation Nr: 21024861 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 13-09 094A DATE: April 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities precluded him from obtaining and maintaining any substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1995 to September 2003. The Board of Veterans’ Appeals (Board) remanded this matter for further evidentiary development in April 2016, August 2019, and November 2020. The case has returned to the Board for appellate review. Entitlement to a TDIU due to service-connected disabilities The Veteran is seeking entitlement to a TDIU due to his service-connected disabilities. The Veteran contends that the severity of his service-connected disabilities prevent him from holding substantial and gainful employment. See June 2012 Statement in Support of Claim. The Veteran originally reported that he became too disabled to work in June 2010. See November 2014 Veteran’s Application for Increased Compensation Based on Unemployability. The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that 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. 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 as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this 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 sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In reaching a TDIU determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (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. Moreover, for a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect circumstances which place that veteran’s case in a different category than other veterans with an equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The United States Court of Appeals for Veterans Claims (Court) 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 U.S. 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). The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The medical evidence addressing the functional effects of a veteran’s disability on his ability to perform the mental and/or physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Regarding the schedular requirements, the Board notes that the Veteran is service connected for posttraumatic stress disorder (PTSD), evaluated at 10 percent from September 22, 2003, 50 percent from July 15, 2008, and 70 percent from October 12, 2016; bronchial asthma, evaluated as noncompensable from September 22, 2003 and 30 percent from November 10, 2005; chronic lumbosacral strain, evaluated as 20 percent from September 22, 2003, 10 percent from November 1, 2007, and 20 percent from May 7, 2012; left lower extremity radiculopathy, evaluated as 20 percent from May 7, 2012; and osteoarthritis and chondromalacia of the left knee, evaluated as 10 percent from September 22, 2003, 100 percent from June 11, 2008, and 10 percent from August 1, 2008. The Veteran’s combined rating is 40 percent from September 22, 2003, 60 percent from November 10, 2005, 50 percent from November 1, 2007, 100 percent from June 11, 2008, 70 percent from August 1, 2008, 80 percent from May 7, 2012, and 90 percent from October 12, 2016. Therefore, the Veteran meets the threshold schedular requirement for TDIU from August 1, 2008. 38 C.F.R. § 4.16 (a). The remaining question is whether these service-connected disabilities prevent the Veteran from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. Regarding the Veteran’s employment history, the Board notes that the Veteran’s military occupational specialty (MOS) was a Barber. See DD-214. The Veteran reported doing office work at a VA facility from January 2010 to June 2010 and he indicated prior work as a Correctional Officer in 2009, however, no dates of employment were listed. See November 2014 Veteran’s Application for Increased Based on Unemployability. The record reflects that the Veteran has also worked various jobs, including as a Delivery Driver and a Cook. See May 2009 Vocation Rehabilitation and Employment Correspondence. The Veteran has also reported working as a Bus Driver from November 2015 to July 2016. See October 2016 VA examination. In February 2019, the Veteran reported to his VA physician that he was working as a long-distance truck driver. At the September 2011 VA examination for the Veteran’s PTSD, the Veteran reported getting irritable at work, and he would leave work to avoid an angry outburst. The examiner indicated that the Veteran’s PTSD appeared to have worsened since the previous VA examination and the Veteran reported that he planned to re-engage in treatment which would improve his prognosis. While the Veteran’s PTSD was summarized as occupational and social impairment with reduced reliability, which is contemplated in the disability rating for his PTSD, there was no indication that the Veteran’s PTSD precluded him from obtaining and maintaining any substantially gainful employment. The Veteran filed an informal claim for TDIU in May 2012. A June 2012 examiner reviewed the September 2011 VA examination results and provided an addendum opinion. The June 2012 examiner provided that the Veteran’s PTSD symptoms do not preclude him from working, however he reported significant irritability at work that gets severe enough to cause him to leave work in order to avoid confrontation. The examiner provided that the Veteran’s lack of adequate sleep and discontinuation of medication and therapy for PTSD exacerbated his symptoms. The examiner further provided that the Veteran’s symptoms have a significant impact on maintaining effective relationships in the workplace due to irritability and limited frustration tolerance. However, the Board observes that the examiner did not opine or find that the impairments prevented the Veteran from obtaining or maintaining substantially gainful employment in an active or sedentary capacity nor was total social and industrial inadaptability indicated by the recorded findings. At the July 2012 VA examination for the Veteran’s service-connected back disability, the Veteran reported that sometimes he is unable to get out of bed for a week due to back flare-ups, the frequency of flare-ups was not recorded. The examiner noted that the Veteran’s back disability does not impact his ability to work. Regarding the Veteran’s service-connected left knee disability, the July 2012 examiner noted that the Veteran reported left knee pain flare-ups causing him to be in the bed all day, the frequency of the flare-ups was not recorded. The examiner noted that the Veteran’s left knee disability does not impact his ability to work. Regarding the Veteran’s service-connected asthma disability, the July 2012 examiner noted that the Veteran’s asthma does not impact his ability to work. As previously mentioned, the Board remanded this matter in April 2016, August 2019, and November 2020 for further evidentiary development. In April 2016, the Board remanded this matter to afford the Veteran with new VA examinations. Pursuant to the April 2016 Board remand, the Veteran was afforded VA examinations in October 2016. At the October 2016 VA examination for the Veteran’s PTSD, the Veteran reported working as a bus driver from November 2015 to July 2016, he was fired for assaulting a passenger. The examiner noted a March 2016 VA medical treatment note where the Veteran reported to his VA physician that he denied the assault and he was only suspended for two days. The examiner remarked that the Veteran’s PTSD symptoms were untreated at that time. The examiner further remarked that the Veteran’s PTSD symptoms have greatly impaired functioning, particularly in social interactions at work. His most problematic symptoms include irritability and impulsive anger which prevent him from working effectively in a stressful/confrontational work environment that also involves a significant amount of customer service/coworker interaction or collaboration. The examiner noted that the Veteran’s PTSD symptoms are not likely to impact sedentary or solidary work with a supportive employer. At the October 2016 VA examination for the Veteran’s left knee disability, the Veteran reported constant left knee pain, which is made worse with activity, he wears a knee brace constantly to help with knee stability and pain. The Veteran described left knee flare-ups as pain when walking, standing, or sitting in one position for more than 15 minutes, cold/wet weather, bending/stooping/squatting, and twisting the left knee. The examiner noted that the Veteran’s left knee disability does not impact his ability to perform any type of occupational task. Regarding the Veteran’s service-connected left knee radiculopathy, the October 2016 VA examiner noted that the Veteran’s radiculopathy affects his ability to stand/walk/sit for more than 10 minutes. At the October 2016 VA examination for the Veteran’s asthma, the Veteran reported use of breathing treatment as needed during the season changes, this affects his ability to function if he needs treatment but is unable to get to them. However, the Board observes that the examiner did not opine or find that the impairments prevented the Veteran from obtaining or maintaining substantially gainful employment in an active or sedentary capacity. At the October 2016 VA examination for the Veteran’s back disability, the Veteran reported constant back pain with pain/numbness/tingling going down the left leg. The Veteran’s flare-ups and functional loss was described as pain when standing/sitting/walking for more than 10 minutes, laying in bed, lifting, twisting/bending. February 2019 VA medical records show that the Veteran reported working as a long-distance truck driver and he is out of town unpredictably and for months at a time. In August 2019, the Board remanded this matter to obtain information about the nature of the Veteran’s most recent employment as a bus driver and to determine whether the Veteran has worked since that time. Pursuant to the August 2019 Board remand, the Agency of Original Jurisdiction (AOJ) sent development letters in December 2019 and February 2020. In November 2020, the Board remanded this matter for further evidentiary development, finding that the December 2019 and February 2020 development letters sent to the Veteran were not sufficient development as the requests were somewhat confusing and did not specifically attempt to obtain records from the Veteran’s former employers. The Board further found that it was not made clear that an updated Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) should be provided by the Veteran with updated employment information as the Veteran had not submitted a VA Form 21-8940 since November 2014. Additionally, the Board found remand required to request the Veteran supply a Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192). Pursuant to the November 2020 Board remand, the AOJ sent a development letter to the Veteran in December 2020. The letter specifically requested that the Veteran submit an updated VA Form 21-8940 and VA Form 21-4192. Also pursuant to the November 2020 Board remand, the AOJ sent a letter to the Veteran’s last reported employers as a bus driver and with the VA. A follow up development letter was sent to the Veteran in January 2021. In February 2021, the AOJ sent a follow up development letter to the Veteran’s former employers and the Veteran. Later in February 2021, the AOJ sent a development letter to the Veteran documenting the January 2021 and February 2021 requests and provided the Veteran the opportunity to submit additional information. The Board notes that the development letters were all also sent to the Veteran’s representative. However, to date, the Veteran, his former employers, or his representative have submitted any response. The Veteran has been afforded multiple VA examinations for his service-connected disabilities. The VA examinations indicate that the Veteran’s service-connected disabilities do not significantly impact his employability. Further, there is an indication that the Veteran was employed as recently as 2019 as a truck driver. The Board acknowledges the Veteran’s contentions of his unemployability. The ultimate responsibility for a TDIU determination is a factual question and is an adjudicative determination made by the Board or the AOJ. Geib, 733 F.3d at 1354 (citing 38 C.F.R. § 4.16 (a)). After consideration of the medical and lay evidence of record, the Board finds that the evidence is insufficient to show that the Veteran is unemployable due to his service-connected disabilities. Based on the evidence of record, the Board finds that the Veteran’s disabilities did not precluded him from all forms of employment. Specifically, the evidentiary record, which includes medical evidence, opinion evidence, and the Veteran’s lay assertions concerning the impact of his disabilities, demonstrates that the Veteran was not precluded from working due to his service-connected disabilities. It is unclear the exact reasons why he separated from his employment as a bus driver, but while he had difficulty managing his PTSD symptoms, the evidence does not reveal that his PTSD prevented him from working as he reported that he subsequently worked as a long-distance truck driver. Additionally, the evidence does not reveal that his service-connected disabilities, other than PTSD, played a substantial role in his termination. The Board notes that the Veteran receives benefits from the Social Security Administration (SSA). Specifically, the SSA found the Veteran disabled since December 2004 due to anxiety disorders as the primary diagnosis and back pain as the secondary diagnosis. While the Board emphasizes that it is not bound by any SSA determination regarding disability benefits when rendering its own decision on entitlement to TDIU, it does shed light on the Veteran’s ability or inability to work and which disabilities significantly impact that ability. The Board notes that some of the Veteran’s medical records indicate that the Veteran’s service-connected disabilities did not have a significant functional impact on his ability to work and that he was employed as recently as 2019. The Board additionally notes that other medical examinations and reports on record indicate the Veteran’s disabilities caused some functional impairment did not opine or find that the impairments prevented the Veteran from obtaining or maintaining substantially gainful employment in an active or sedentary capacity. The record and examinations indicate that the Veteran would be able to maintain employment with limited interaction with other people, such as truck driving. Accordingly, the Board finds that the weight of the available lay and medical evidence demonstrates that the criteria for a TDIU have not been met or more nearly approximated. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.