Citation Nr: 21026867 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-61 815 DATE: May 4, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran's service-connected peripheral neuropathy and psychiatric disabilities do not preclude him from securing or maintaining substantially gainful employment consistent with his four years of college education or his 29-year career as an investigator for the Aqueduct and Sewer Authority. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a June 2017 rating decision. In March 2019 and June 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. 1. A TDIU due to service-connected disabilities The Veteran contends he is unable to obtain or maintain a substantially gainful occupation consistent with his educational attainment and work history due to his service-connected disabilities. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 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. 38 C.F.R. § 4.16(a); see also 38 C.F.R. §§ 3.340, 3.341. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. Effective since receipt of the TDIU claim on June 20, 2016, service connection has been in effect for a psychiatric disorder, including PTSD, anxiety, and depression (rated 50 percent disabling); peripheral neuropathy of each upper extremity (each rated 20 percent disabling); and peripheral neuropathy of each lower extremity (each rated 10 percent disabling). The combined evaluation for compensation is 80 percent effective June 20, 2016. The Veteran meets the threshold schedular criteria for entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(a). In his formal application for a TDIU, the Veteran reported he was unable to work due to neurological damage and a psychiatric disorder, in addition to nonservice-connected impairments. He indicated he had worked full-time as an investigator from 1974 until March 2003 and that he left his job due to disability but did not receive any disability retirement or worker's compensation benefits. He reported completing four years of college and denied having any other education or training either before or after he became too disabled to work. An August 2003 letter from the Administration of Retirement Systems of Government Employees and the Judiciary advised the Veteran that his application for a pension for merit was approved in March 2003 and that he would receive approximately $1,842 per month. In support of his claim for a TDIU and claims for service connection for multiple disabilities, the Veteran submitted a "medical data review" completed in March 2016 by a private physician. The report indicates he presented with "neck and high back pain" each with stiffness, numbness, tingling, sensory loss, cramps, and weakness radiating from his neck to his shoulders, arms, elbows, and wrists and radiating from his low back to his hips, knees, and ankles. Physical examination findings were not reported and diagnoses pertained to his cervical spine and lumbar spine. The report also described the Veteran's psychiatric symptoms related to generalized anxiety disorder, major depressive disorder, and PTSD as follows: nervousness, anxiety, irritability, difficulty in adapting to stressful circumstances, instability [sic] to establish and maintain effective work and social relationships, disturbances of motivation and mood, depressed mood, little interest or pleasure in doing things, feeling down and hopeless, isolation episodes, easy crying, insomnia with nightmares, flashbacks poor frustration tolerance and concentration, and suspiciousness. The private physician opined that the Veteran's psychiatric, cardiovascular, and musculoskeletal (neck, back, and right knee) disorders were more probable than not related to his military service; that he was 100 percent disabled; and that his service-connected disabilities significantly affected his ability to perform in a competitive work environment. In September 2016, VA received records from the Social Security Administration (SSA). The Veteran had applied for SSA disability benefits in February 2007, asserting that depression, neck and back disabilities, osteoporosis, and a bilateral arm disability manifested by poor circulation and cramps in his hands limited his ability to work. A July 2007 disability determination concluded the Veteran was disabled for SSA purposes due to the primary diagnosis of a back disability and the secondary diagnosis of affective disorders. In January 2017, the Veteran's former employer, the Aqueduct and Sewer Authority, confirmed he had worked as an investigator from February 1978 until his retirement in February 2003 and that he was receiving a retirement pension of $500 per month. In March 2017, the Veteran was afforded a VA examination by a clinical psychologist. He reported attending approximately four years of college to pursue a bachelor's degree in education but being unable to complete his degree. After his college studies, he worked as a state policeman for three years and then worked as an investigator for the water and sewer authority for 29 years until his retirement in 2003. He reported receiving government retirement benefits and SSA disability benefits. He indicated he had seen a mental health doctor around 2007 as part of his SSA disability process but he was not currently receiving any mental health treatment. Mental status examination revealed a mildly depressed mood with congruent affect. The examiner diagnosed unspecified depressive disorder but indicated that the Veteran's current symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. In April 2017, the Veteran re-established VA medical care. His complaints were limited to episodes of headaches and back pain, although he was currently asymptomatic. Screening for PTSD and depression was negative. On examination, he was ambulatory with a normal gait in no apparent distress; he was well-groomed, communicative and cooperative, and appeared relaxed; and there were no gross motor or sensory deficits on neurological examination. During an October 2018 VA neurosurgery consultation, the Veteran complained of neck and back pain with numbness in his hands and legs while ambulating for the past year or two, cramps in his upper and lower bilateral extremities that were worse at night, and objects falling from his hands. Mental status examination revealed normal orientation, memory, and concentration. On motor examination, he had decreased strength of 4/5 in the right upper extremity and normal, 5/5 strength in his left upper extremity and bilateral lower extremities. Sensory function was within normal limits over the bilateral arms and legs. MRI studies demonstrated cervical and lumbar spinal stenosis. The assessment was symptomatic cervical and lumbar stenosis. The neurologist indicated the Veteran would benefit from cervical spine surgery because he has had motor deficit and myelomalacia on imaging that had not improved with physical therapy. In November 2019, the Veteran presented for a VA neurological examination. He reported that the cramps in his legs and arms during service had increased in severity and were accompanied by numbness in all extremities. Examination findings included reduced grip and pinch strength in his bilateral upper extremities but his upper and lower extremity motor strength was normal with no muscle atrophy. He had hypoactive reflex function in his bilateral triceps and ankles and absent reflex function in his biceps and brachioradialis bilaterally. He had decreased sensation in his bilateral hands and fingers, lower legs/ankles, and feet/toes. He had an antalgic gait, which was attributed to his nonservice-connected low back disability. He did not use any assistive devices for locomotion. The examiner concluded that the Veteran's peripheral neuropathy of each upper and lower extremity began during his military service and his symptoms of cramps and numbness caused difficulty while working as an investigator. During a November 2019 VA psychiatric examination, the Veteran reported he had briefly received private psychiatric treatment from October 2006 to April 2007, but he had since abandoned any treatment, including medication. He denied any history of psychiatric hospitalization or emotional crisis and denied any suicidal ideas, plans, or attempts. Reported behavioral observations included the following: appropriately dressed with adequate hygiene; cooperative and spontaneous; good eye contact; alert and fully oriented; no evidence of psychomotor retardation or agitation; coherent and logical thought process; no looseness of association; no sign of disorganized speech, delusions, or hallucinations; no phobias, obsessions, or panic attacks; relaxed mood with broad and appropriate affect; recent, remote, and immediate memory preserved; normal abstraction capacity; good judgment; and adequate insight. The psychiatrist concluded the Veteran did not have a current psychiatric disorder and emphasized he was living a very successful social and occupational life. During a September 2020 VA telehealth primary care visit, the Veteran reported he was doing well except for feeling anxious and depressed and having sleep problems. He denied any suicidal or homicidal ideation. Depression screening was positive and he was referred for a mental health assessment. In October 2020, the results of depression screening indicated mild depression and anxiety screening resulted in a score below the range considered clinically significant but still indicating a condition that should be carefully evaluated. During the interview portion of the assessment, he admitted to feeling nervous and restless every day and experiencing psychomotor agitation in response to stress. He reported a history of auditory hallucinations and sleep impairment. The psychologist observed the Veteran was cognitively intact. The impression included unspecified anxiety disorder and rule out panic disorder. The Veteran failed to appear for a follow-up appointment later in October 2020. In March 2021, the Veteran was afforded a fee-basis examination by a clinical psychologist. He reported pursuing a bachelor's degree in physical education and criminology after service but was unable to complete his degree. He indicated he worked as an investigator for the Aqueduct Authority for 29 years until he retired in 2003. He stated he had been married to his second wife for 37 years and reported good family relationships. Reported symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Behavioral observations were similar to those previously reported except that his mood appeared depressed with consistent affect, and his concentration and immediate memory appeared altered. The diagnosis was PTSD, resulting in occupational and social impairment with reduced reliability and productivity. Having considered the medical and lay evidence of record, a TDIU is not warranted. The record shows the Veteran attended approximately four years of college and worked for 29 years as an investigator until he retired and began receiving retirement pension benefits. He reported having experienced difficulty at his job due to cramps and numbness associated with his peripheral neuropathy involving his upper and lower extremities. However, those symptoms, which he still has, are not shown to have precluded him from maintaining his employment. Moreover, VA and fee-basis examiners have described the functional impairment caused by his service-connected peripheral neuropathy and psychiatric disabilities as having interfered with his occupational function by causing some difficulty and reduced reliability and productivity. However, none of the examiners identified impairments caused by service-connected disability that were so severe as to prevent the Veteran from obtaining or maintaining substantially gainful employment. In fact, despite the Veteran's reported psychiatric symptoms, the March 2017 and November 2019 VA examiners concluded that psychiatric symptoms did not caused any impairment in his ability to function effectively in an occupational setting. The Board considered the benefit of the doubt doctrine; however, it is not applicable because the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude him from obtaining or maintaining a substantially gainful occupation consistent with his college education and extensive work history as an investigator. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.