Citation Nr: 21026184 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 10-19 001 DATE: April 30, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The record evidence shows that the Veteran’s service-connected disabilities, alone or in combination, do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1998 to November 2005. The Board notes that, in June 2019, it remanded the Veteran’s TDIU claim because the AOJ had not sent him the required VCAA notice. Similarly, VA Forms 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) were not of record at the time. Consistent with the Board’s June 2019 remand directives, the Veteran was sent the appropriate forms to initiate a TDIU claim. There is no record of a response. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that “[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board notes that it requested an examiner to opine on whether the Veteran’s service-connected PTSD precluded him from obtaining and maintaining substantially gainful employment in the June 2019 remand. The Board also notes that this question asked in the June 2019 remand is, in fact, a factual determination and not a medical one. Not surprisingly, the December 2019 VA PTSD Disability Benefits Questionnaire (DBQ) examiner was unable to provide this opinion without resorting to speculation although he noted the occupational limitations that the Veteran’s PTSD imposes. Having reviewed the record evidence, the Board finds that the AOJ substantially complied with the June 2019 remand directives to the extent possible. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Entitlement to a TDIU The Veteran asserts that his service-connected PTSD and scar render him unemployable without special accommodations by an employer. Here, the service-connected disabilities meet the schedular criteria set forth in 38 C.F.R. § 4.16(a). He is in receipt of a 70 percent disability rating for post traumatic stress disorder (PTSD) and assigned a non-compensable disability rating for a service-connected forehead scar. The combined rating is 70 percent. Therefore, the threshold percentage required to establish eligibility for a schedular TDIU are met. See 38 C.F.R. § 4.16(a) (2019). The question that remains is whether his service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. 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). The Board notes that the Veteran is a high school graduate. He attended high school in South Carolina and graduated from high school in 1998. After graduation from high school he entered the Marine Corps at age 17. He has not attended college although the record indicates that he has aspirations to do so. In a November 2009 VA examination report for an initial evaluation for the Veteran’s PTSD, he reported being employed as a bulldozer operator although the work is spotty because of the recession and the pay is “good”. During the examination, he stated that he works in the woods which allows him to be alone. He also stated that he generally has problems dealing with people and does not like for people to be close to him. His job as a bulldozer operator is “ok” because it is quiet in the woods where he works and he does not have any patience with people. If he is in a room by himself with the door locked and he has food and a laptop he does not experience psychiatric symptoms. In June 2017 the Veteran was afforded a Disability Benefits Questionnaire (DBQ) examination by a contactor to evaluate his PTSD. The examiner noted that the Veteran’s PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he generally functions satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he is working part-time in car preparation at Enterprise and had been employed by them for 4 years. He recently had to cut back to part-time due to his inability to cope with stress and frequent conflicts with co-workers and superiors. The Veteran was afforded another PTSD DBQ examination in October 2018. The examiner stated that the service-connected PTSD causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he generally functions satisfactorily, with normal routine behavior, self-care and conversation. The Veteran quit his job in 2016 and now works for a car dealership but has problems with his boss. He reported that his boss is always on his back about something. His psychological symptoms interfere with work and he is not comfortable in the work environment. He experiences irritability and suspiciousness and has difficulty completing tasks. The examiner indicated that the Veteran has mental health problems or symptoms that include panic attacks, suspiciousness, irritability, and conflicts with other that interfere significantly with his ability to work. In a December 2019 PTSD DBQ, the Veteran’s level of occupational and social impairment was characterized as: 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 examiner was not able to determine whether it is at least as likely as not that the Veteran is precluded from substantially gainful employment of his service-connected PTSD without resorting to speculation. The examiner noted specific limitations that the Veteran would have in an occupational setting. Those limitations include significant irritability, anger, and impaired impulse control which affect his ability to interact with peers in job settings. The examiner also stated that the Veteran’s ability to respond appropriately to coworkers, supervisors, or the general public is considered to be markedly impaired. The Veteran experienced difficulty in establishing and maintaining effective work relationships. His ability to sustain attention and concentration to task persistence and pace was noted to be moderately impaired. The examiner noted that his opinion is based on a review of the Veteran’s VBMS eFolder with military service treatment and personnel records, CPRS mental health treatment records, history of psychiatric treatment which is noted in STR, DSM-5 diagnostic criteria, subjective report of symptoms, objective test results from this examination, diagnostic clinical interview, and training and experience. The Board recognizes that the Veteran has held several jobs in recent years, including as a bulldozer operator and at Enterprise doing car preparation. He reported quitting his job in 2016 and working for a car dealership although he had problems with his boss. The record supports finding that he is capable of obtaining and maintaining substantial employment for extended periods. The Board acknowledges that he reported in June 2017 that he cut back to part-time due to his inability to cope with stress and frequent conflicts with co-workers and superiors. The record contains several notations that show he frequently has conflict with co-workers and does better when he works in more secluded or isolated environments. He stated in November 2009 that, if he is in a room by himself with the door locked and he has food and a laptop, he does not experience psychiatric symptoms. The Board next acknowledges that he appears to be more productive in work environments that do not require him to interact with others. Although he faces some challenges when he is in work environments which require constant human interaction, the record shows that he still is capable of working despite such challenges. There is no evidence that the service-connected PTSD is so severe as to preclude employment. Moreover, there is no evidence that the service-connected forehead scar precludes him from obtaining or maintaining substantially gainful employment. The record shows that he has the capacity to secure employment in jobs that are most conducive for his need to be in isolated working environments. His preference to work alone along with the manifestations of his psychiatric symptoms themselves are not of the frequency and severity as to significantly impact employability. Thus, the Board finds that the service-connected PTSD does not prevent the Veteran from securing gainful employment. The Board assigns significant probative weight to the medical examinations of record. The examiners reviewed the claims folder and medical history and considered his reported symptoms and onset of the claimed disorder. Factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). These medical opinions are based on sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The June 2017, October 2018, and December 2019 examiners concluded that the Veteran has 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. Consistent with these findings, the Board concludes that the service-connected PTSD may cause some occupational limitations and may steer him toward employment which requires less human interaction. His overall disability picture does not demonstrate that his service connected disabilities, alone or in combination, preclude employment. The December 2019 PTSD examiner discussed the specific limitations that the Veteran would experience in an occupational setting although he was unable to provide the requested opinion. Even taking into consideration the occupational limitations noted by this examiner, the Board finds that they would not preclude the Veteran from sustaining or obtaining substantially gainful employment. The Board does not doubt the Veteran’s sincerely held belief that his service-connected disabilities prevent his employability. Nevertheless, the weight of the probative evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. The Board finds it highly persuasive that, although the medical opinions of record concluded that there is some impact of his service-connected disabilities on his ability to work, none of these opinions found that he is unable to work solely as a result of his service-connected disabilities. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to a TDIU. In summary, the Board finds that the criteria for a TDIU have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.