Citation Nr: 21027593 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 11-00 258A DATE: May 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to March 5, 2020 is denied. FINDING OF FACT A preponderance of the evidence is against finding that, prior to March 5, 2020, the Veteran was unable to obtain or maintain substantially gainful employment due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to March 5, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from July 1986 to November 1989, November 1990 to April 1991, March 2006 to July 2007 and May 2007 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran appeared before the undersigned Veteran's Law Judge at an August 2017 videoconference hearing, a transcript of which has been attached to the record. The Board previously remanded these matters to the AOJ for further development in January 2018 and February 2019. In a December 2020 decision, the Board granted entitlement to service connection for a right elbow disability as well as a TDIU from March 5, 2020 and remanded the issue of entitlement to a TDIU prior to that date to the AOJ for consideration in the first instance. Entitlement to a TDIU prior to March 5, 2020 The Veteran asserts he is unable to find and maintain gainful employment 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 solely because of service-connected disabilities. If there is only one such disability, this disability shall be ratable as 60 percent or more, and that, 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. §§ 3.340, 3.341, 4.16. The Board observes that the Veteran has met the schedular criteria for a TDIU since his March 2008 separation from service. For TDIU purposes, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.1. Factors to be considered, however, will include the Veteran's employment history, educational attainment, and vocational experience. 38 C.F.R. § 4.16. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. In this case, the Veteran has been granted service connection for posttraumatic stress disorder (PTSD), rated as 50 percent disabling from March 8, 2008 and 70 percent disabling from March 5, 2020, as well as tinnitus, hypertension, a right hand strain and a scar of the right hand, each rated as 10 percent disabling from March 8, 2008. The Veteran's combined evaluation for compensation was 70 percent prior to March 5, 2020, and 80 percent thereafter. As noted above, the Board has granted the Veteran entitlement to service connection for a right elbow disorder as well, now rated as 20 percent disabling from March 18, 2009. The Board observes that the Veteran has also been diagnosed with persistent depressive disorder, but as multiple VA examiners have determined the symptoms from this disorder and his service-connected PTSD are impossible to differentiate, the Board will consider the symptoms overlapping and attributable to his PTSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In a February 2019 remand, the Board instructed the AOJ to attempt to obtain from the Veteran a completed Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. According to the record, the AOJ included this Form in July 2020 correspondence, with no response from the Veteran. As noted above, a December 2020 Board decision granted entitlement to a TDIU from March 5, 2020 and remanded the issue of entitlement to a TDIU prior to that date to the AOJ for further development. In January 2021 the AOJ mailed the Veteran an additional VA Form 21-4192 as well as a Request for Employment Information in Connection with Claim for Disability Benefits, again with no response. The Board observes that the duty to assist in the development of the Veteran's claim is not a "one-way street," see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and the Veteran has the ultimate burden to provide information beneficial to his claim. Therefore, the Board will decide the issue of entitlement to a TDIU prior to March 5, 2020 based on the current evidence of record. The Veteran underwent a mental status examination in July 2008. The examiner noted the Veteran exhibited symptoms of both PTSD and depression but observed that his attention, concentration, and mannerisms were all within normal limits. With regard to employment, the Veteran stated that he held a position at ITT but had not returned to work yet because he "didn't feel like it." However, the examiner noted he wore a dress shirt and stated he had just come from a business meeting. According to February 2009 VA treatment records, the Veteran reported pain radiating up his right hand to his elbow. In July 2009 he stated his elbow pain increased after April 2009 surgery, although he denied any numbness or tingling. The treating VA clinician posited that the pain was related to his surgery scar and would improve. The Veteran was afforded a PTSD examination in January 2010, where he was diagnosed with PTSD and a depressive disorder. The examiner observed no impairment of thought processes or communication and characterized the Veteran's activities of daily living as excellent. The examiner concluded that the Veteran's psychological symptoms were "transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress." The Veteran was afforded a right arm VA examination in November 2010. He presented with continued complaints of right arm pain radiating to his elbow. Upon examination the Veteran's right arm was found to be unremarkable, with full functionality and negative EMG nerve testing. He reported no flareups and indicated he did not use a supportive device. The examiner concluded no disability was found during the examination. In June 2011 correspondence, a private registered nurse stated that the Veteran manifested reflex sympathetic dystrophy resulting in severe pain, numbness and difficulty using his right hand. The letter requested that the Veteran be allowed to type answers in school, as handwriting could exacerbate his right-hand symptoms. The Veteran was afforded an additional VA arm examination in August 2011. He now reported moderate paresthesias and/or dysesthesias of the right arm, although he exhibited normal muscle strength and reflexes and sensory testing was negative for nerve involvement. The examiner noted the Veteran claimed to be diagnosed with reflex sympathetic dystrophy but did not report symptoms matching that disorder and greeted him with a handshake in a manner not consistent with this diagnosis. The examiner concluded that the Veteran's complaints were not anatomical, as the shoulder to wrist "stocking glove manner" of reported symptoms did not follow any nerve. Although the Veteran reported everyday use of a stocking on the right arm to reduce swelling, the examiner observed it showed no sign of wear or use. The examiner opined that the Veteran manifested no upper right extremity impairment that would impact employability. The Veteran was afforded a PTSD VA examination in August 2017. He indicated that he had not held a formal work position since his separation from service, which he reiterated at the August 2017 Board hearing. The Veteran informed the examiner he was attending classes, hoping to ultimately return to the real estate field. He described his main difficulties with school as being in crowds and large lectures, causing anxiety, sweating, rapid heartbeat, headaches and jitters. The Veteran described several physical deficits preventing him from working, including degenerative conditions of the back, ankle, elbow, knee and leg as well as pain in his right hand. The PTSD examiner found the Veteran manifested occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment and disturbances of motivation or mood. A September 2017 letter from the Veteran's private physician indicated the Veteran was unable to function as an IT technician due to a right-hand injury, cervical disc disease and reflex sympathetic dystrophy. The Veteran was afforded VA examinations for his right upper extremity, hypertension, tinnitus and PTSD in March and April 2018. The hypertension examiner concluded, "it is my medical opinion that the Veteran does not have any functional limitations regarding his hypertension." The right upper extremity examiner noted complaints of numbness, paresthesias and swelling in the right hand, aggravated by typing, lifting and cold weather. The Veteran indicated that his right-hand symptoms were improved with use of a compression sleeve/glove and gabapentin. All imaging results were normal, but the examiner stated, "it is my medical opinion that the Veteran has functional limitations of the right elbow that would prevent hard manual labor but not medium or light manual labor or sedentary labor." The examiner also opined that the Veteran's right-hand scar disability did not cause functional impairment. The VA audiologist opined that the Veteran had no functional limitations due to his tinnitus, since he exhibited excellent word recognition and hearing. The psychological examiner observed the Veteran's PSTD interfered with his interpersonal relatedness, his attention, concentration and memory, and his motivation and drive to a moderate extent. This examiner concluded the Veteran manifested occupational impairment with reduced reliability and productivity due to symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. A September VA psychological examination noted that the Veteran's PTSD had worsened, as the Veteran now reported panic attacks more than once a week as well as near-continuous panic and depression affecting his ability to function independently, appropriately and effectively. The examiner found that the Veteran manifested occupational and social impairment with reduced reliability and productivity. According to an October 2019 VA vocational rehabilitation needs inventory, the Veteran described limited use of his right hand, with swelling after 10 minutes of use, as well as an inability to stand for more than 10 to 15 minutes due to back and knee pain. He also reported an aversion to crowded places. The Veteran described past gainful employment including eight years as a network administrator, a year as a realtor, and two years as a system support specialist. He also listed multiple college course credits in journalism, computer science and business administration, though did not appear to have obtained a degree. In a September 2020 VA feasibility determination, VA concluded that given the extent of the Veteran's service and non-service-connected disabilities, it was unlikely he would be able to obtain and maintain employment beyond a probationary period. In October 2020 VA determined the Veteran exhibited a severe employment handicap due to frequent hospitalizations for his non-service-connected knee and neck disorders, as well as his service-connected psychiatric symptoms and his long period of unemployment since separation. As noted in Moore, the Board must address the question of entitlement to a TDIU in a practical manner. Here, the record reflects that the Veteran's inability to find and maintain employment was due to a combination of service and non-service-connected conditions. While prior to March 2020 the Veteran's service-connected PTSD moderately affected his ability to find and maintain gainful employment in his fields of experience, his non-service-connected orthopedic disabilities resulted in frequent hospitalizations and caused significant functional loss. However, beginning in 2020, it appears the Veteran's service-connected PTSD worsened, to include symptoms of near continuous panic and depression affecting his ability to function independently, appropriately and effectively. The Board notes the September 2017 private physician letter, as well as the 2019 and 2020 vocational rehabilitation records, which include VA's determination of a severe employment handicap, involved both the Veteran's service and non-service-connected disabilities. However, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As noted above, the Board previously granted entitlement to a TDIU from March 5, 2020. Prior to that date, the issue of entitlement to a TDIU was raised by the Veteran and originally denied by the AOJ in a June 2015 rating decision. The Veteran is competent to state that his service-connected disabilities preclude him from working, as the question of whether a veteran could perform the physical and mental acts required by employment at a given time is one about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Nevertheless, it is not factually ascertainable that the Veteran's service-connected disabilities, alone, prevented him from finding and maintaining gainful employment prior to the September 2020 VA examination, which recorded noticeably worsening PTSD symptoms, to include near continuous panic and depression. The Veteran's lay statements, as well as a September 2017 letter from his treating physician, all list non-service-connected conditions, to include back, neck and lower extremity disorders, as part of the reason for his inability to find and maintain gainful employment. The Board observes that the Veteran's vocational and rehabilitation records address both his service and non-service-connected disorders, and it is unclear from the record the extent to which his service-connected disabilities interfered with his past gainful employment, only that he has been unemployed for some time. However, as noted above, the AOJ has twice attempted to solicit this information from the Veteran and received no response. As noted above, the duty to assist is not a one-way street or a blind alley; a claimant cannot remain passive when he has relevant information solely within his control. See Wamhoff v. Brown, 8 Vet. App. 517 (1996). In order for a veteran to prevail in his claim for a TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board acknowledges that prior to March 2020, the Veteran's service-connected disabilities resulted in significant functional impairments, as noted at the August 2017 Board hearing, as well as during March and April 2018 VA examinations. However, the evidence of record does not otherwise indicate that he was unable to secure or follow any substantially gainful occupation solely due to his service-connected disabilities. Rather, the evidence indicates that his psychological symptoms caused, at most, moderate functional impairment, most significantly in dealing with crowds. There is no evidence his service-connected hypertension or tinnitus caused functional limitation, and his right upper extremity disabilities were found to cause interference with manual labor, although still allowing him to perform medium, light, or sedentary labor jobs. The Board observes the Veteran has educational and occupational experience as a network administrator, system support specialist and in real estate, all of which involve non-physical, white collar, office-type work, and can be performed outside of crowded places. As such, the Board finds that prior to March 2020, the Veteran was not precluded from finding and maintaining gainful employment in these fields solely by his service-connected disabilities. The Veteran holds the burden to establish his entitlement to a TDIU. For the forgoing reasons, the Board finds that a preponderance of the available evidence is against finding entitlement to a TDIU prior to the noted worsening of his PTSD symptoms. As such, the benefit of the doubt doctrine is not for application, and the claim of entitlement to a TDIU prior to March 5, 2020 must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.