Citation Nr: 21026110 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-23 001 DATE: April 29, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence does not show that the Veteran’s service-connected disabilities have been of sufficient severity to preclude him from obtaining and/or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 501; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1987 to October 1994, from July 1998 to July 2001, and from April 2006 to March 2007. An August 2020 Board decision found that a TDIU claim was raised by the records and remanded the issue to the Agency of Original Jurisdiction (AOJ) for further development and adjudication. In December 2020, the AOJ issued a Supplemental Statement of the Case (SSOC) denying the TDIU claim. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. If there is only one such disability, this 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 disability or more. 38 C.F.R. § 4.16(a). Here, the Veteran is currently rated at 50 percent for PTSD, 50 percent for sleep apnea, 20 percent for his back disability, 10 percent for radiculopathy in the left lower extremity, 10 percent for tinnitus, and zero percent for left foot, zero percent for left elbow, and zero percent for right pectoralis major, with a combined rating of 80 percent. Accordingly, he meets the threshold criteria for TDIU under 38 C.F.R. § 4.16(a). The next question is whether the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation, in other words, incapable of performing the physical and mental acts required by the employment, regardless whether the Veteran can find employment or not. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, 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). At his October 2019 VA psychiatric examination, the Veteran reported that he moved from a principal position in Vance county schools to an assistant principal position in Franklin county schools so he could be closer to home, and that he had maintained that position for two years, before retiring in June 2019 because he was having concerns regarding his irritability and potential to act upon it. He denied any disciplinary actions, writeups or verbal warning from the employers. The Veteran reported that he had made some improvements on his psychiatric symptoms since he retired. The examiner concluded that his psychiatric symptoms had caused occupational and social impairment with reduced reliability and productivity. Employment information (Form 21-4192) from the Vance county schools showed that the Veteran worked full time as a teacher from August 1995 to July 1998, as a coordinator from February 2002 to July 2008 and as a principal from August 2009 to January 2017. The employment was terminated due to relocation. Employment information (Form 21-4192) from the Franklin county schools showed that the Veteran worked full time as an assistance principal from January 2017 to June 2019, the employment was terminated due to retirement and not due to disabilities. Private treatment records show that the Veteran has sought psychiatric treatment since 2014. In February 2014, records show that the Veteran reported that he had a Bachelor’s degree and Master’s degree in education, and that after service, he had been an educator within the education system for 15 years. He reported that his focus, concentration, and memory had become problematic over the previous five to six years, and that his job was very stressful. He was prescribed medications for treatment. In March 2014, the Veteran reported that he continued to work even though he had some job-related issues. In April 2015, the Veteran reported that he had not been taking medications for a while, that his job was getting harder and harder, that he had been frustrated more than before, and that he would like to go back on the medication. In December 2018, the Veteran complained of having experienced frequent upsetting dreams, and that he felt jumpier and not as patient as he used to be. He thought he needed to retire soon, because did not have the patience to do what he used to do at work on a daily basis. He also reported memory issue, stating that many times he walked out of his office at work and could not remember what he needed to do. He also complained of pain and aches in the back and neck. He stated that had severe sleep apnea, was using CPAP machine, but still did not sleep very well. In January 2019, the records show that he reported frustrations with his job. In July 2019, the records show he was retired from the school system, because he had not been handling his job well and that he had been feeling jittery around kids. VA treatment records in August 2016 showed that the Veteran sought a neurology consultation of a possible dementia. He reported that he occasionally forgot the day of the week and had to ask his wife. His wife reported that the Veteran occasionally forgot to turn off the oven or running bath water, and that at one time, he went to Lowe’s to get boxes for his work, but left the store without getting the boxes. The assessment at that time was negative for dementia. Records in July 2018 and December 2018 show that the Veteran reported he enjoyed working as principal for the high school and planned to retire in June 2019 and wanted to travel after retirement. After considering the evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran is unable to secure or follow any type of substantially gainful employment due to his service-connected disabilities. The Veteran has a Bachelor’s and Master’s degree in education, and he has extensive working experience in the school systems. Records show that he was an assistant principal prior to his retirement. Although his service connected disabilities, especially his PTSD and sleep apnea undoubtedly caused difficulties in performing his job as a principal or an assistant principal, in that he tended to forget things and became less patient than he used to be, the evidence does not suggest that he is unable to handle a less-stressful job with less responsibilities. He did not report any problems with coworkers, supervisors, subordinates, or students at schools. He denied any disciplinary actions, writeups or verbal warning from the employers. He reported that he enjoyed working in the schools. His retirement was planned in advance and he was looking forward to traveling in his retirement. Here, the Veteran is highly educated and has a long work history with a voluntary retirement. While the Board does not doubt that working in a school would be challenging, the question for TDIU is not whether the Veteran could continue as a principal or assistant principal, but rather whether he could work in a job that allowed him to earn enough to remain above the poverty line. With the Veteran’s intellect, the Board believes that this would be possible. As the weight of the evidence does not support a finding that the Veteran’s service-connected disabilities have precluded him from any type of substantially gainful employment, the TDIU claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.