Citation Nr: 21027870 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 03-15 651 DATE: May 7, 2021 ORDER Entitlement to a total disability based on individual employability (TDIU) is denied. FINDING OF FACT Throughout the course of the appeal, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. 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. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1960 to March 1964. The Veteran died on September [REDACTED], 2017. The appellant is the surviving spouse. This matter has a long procedural history that has been outlined in prior Board decisions. Most recently, the Board denied this issue in an August 2019 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to vacate and remand the portion of the Board's August 2019 decision that denied entitlement to a TDIU. The issue of entitlement to an increased rating for posttraumatic stress disorder (PTSD) was not challenged and that issue was dismissed. Thereafter, the case was returned to the Board. Entitlement to a TDIU The appellant is seeking entitlement to TDIU due to the Veteran's service-connected disabilities. The Veteran filed his claim seeking a TDIU in August 2003. The appeal has been ongoing since that date. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16 (a). While the Veteran may have been unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16 (a); supra. In determining whether an appellant is entitled to a TDIU, neither the Veteran's nonservice-connected disabilities nor may advancing age be considered. Prior to his death, the Veteran's service-connected disabilities were: headaches, evaluated as 50 percent disabling; PTSD evaluated as 30 percent disabling from July 8, 2010; residuals of a fractured mandible (jaw fracture), evaluated as 20 percent disabling prior to March 31, 2012, and 10 percent disabling thereafter; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as noncompensable prior to May 5, 2011 and 10 percent disabling thereafter. From July 16, 2002, the date service connection was awarded for headaches, the Veteran's headaches associated with fractured left mandible were rated as 50 percent disability and his residuals of fractured left mandible were rated as 20 percent disabling until March 31, 2012, and 10 percent thereafter. The Veteran's combined rating was 60 percent based on these two disabilities throughout the course of the appeal. In turn, as these disabilities result from a common etiology, the Veteran had one disability rated at 60 percent and, thus, he met the schedular criteria for a TDIU. The Board also observes that as of July 8, 2010, the Veteran had one disability rated at least 40 percent disabling and a combined rating of at least 70 percent. The Board notes that the Veteran was service-connected for hearing loss and tinnitus prior to July 8, 2010. However, this is not a bar to meeting the schedular criteria. In this regard, the Court upheld a finding that a Veteran with three service-connected disabilities, resulting from a single accident and yielding a combined rating of 60 percent, to meet the schedular criteria set forth in 38 C.F.R. § 4.16 (a) despite other unrelated service connected disabilities evaluated as noncompensable. Gary v. Brown, 7 Vet. App. at 230 (1994). Accordingly, the Veteran's service-connected headaches and residuals of fractures left mandible satisfies the schedular criteria for a TDIU, notwithstanding the other disabilities. Id. 38 C.F.R. § 4.16 (a). To find otherwise would lead to the absurd result that a Veteran with more than one service-connected disability is penalized in that he or she is required to have a combined disability rating of 70 percent while a Veteran with a single service-connected disability need only have a 60 percent rating. See Sabonis v. Brown, 6 Vet. App. Vet. App. 426, 429 (1994) (stating that plain meaning of language of a statute must be given effect unless it would lead to absurd result). The evidence shows that after service, the Veteran worked for 25 years as a Mobile Deputy Sherriff and retired in 1990. The Veteran was unemployed throughout the course of the appeal. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the functional effects resulting from the Veteran's service-connected disabilities as assessed by the VA examiners are highly probative. Based on the evidence of record, the Board finds that the Veteran was not unemployable due to his service-connected disabilities at any point during the course of the appeal. In this regard, importantly, in December 2016 and January 2017, the Veteran underwent VA examinations for all of his service-connected conditions to assess his TDIU claim. With respect to the Veteran's hearing loss and tinnitus, the examiner concluded that the Veteran was not unemployable, though he did find his conditions impacted ordinary conditions of daily life, including ability to work, in that sounds are hard to hear, and tinnitus is bothersome. At the VA headaches examination, the Veteran reported his headaches persisted for 15 hours a day, every single day, for years. He indicated that the medications did help ease it off, but the pain always returned, and that it "stops him from doing everything." However, significantly, the examiner found that the Veteran did not suffer from prostrating attacks. The examiner concluded that his headaches did not impact the Veteran's ability to work, but he was capable of sedentary to light or moderate duty activities. With respect to his PTSD, the Veteran reported nightmares that woke him up, bad memory problems, and feeling depressed, angry, and nervous often. The examiner concluded that his PTSD symptoms would result in reduced productivity and reliability in a stressful work setting where high productivity is required due to problems with irritability, impaired sleep and anxiety. However, ultimately, the Veteran was able to communicate effectively and follow simple instructions and complete routine tasks. The examiner also noted that the Veteran's memory and concentration symptoms were not due to PTSD but associated with a separate neurocognitive disorder. With respect to the Veteran's jaw fracture, the VA examiner indicated that the Veteran's condition did not impact his ability to work. The Board finds the VA examinations are the most probative evidence concerning the Veteran's functional impairment due to his service-connected disabilities because they are based on an accurate medical history, thorough examination of the Veteran and contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Likewise, VA examinations in August and September 2015 also found that the Veteran's service-connected disabilities did not preclude employment. In this regard, with respect to the Veteran's headaches, the examiner found that the Veteran was capable of participating in regular physical activity without significant restrictions. Again, the Veteran denied prostrating or debilitation headaches. Moreover, the examiner found that based on collective service-connected conditions (headache, PTSD, tinnitus, hearing loss, and fracture left mandible, he is capable of participating in regular physical activities with mild intermittent limitations related to mental health condition and some minor environment limitations due to service-connected hearing loss and tinnitus. Again, there was no impact on the Veteran's ability to work from his jaw condition. Moreover, with respect to hearing loss and tinnitus, the examiner noted that while these disabilities could create challenges in the work situation, the examiner opined that his current bilateral hearing loss and tinnitus should not impact his ability to perform all types of physical or sedentary jobs to the point of causing him to be unemployable. Further, with respect to PTSD, the examiner found that such disability would likely result in occasional decrease in work reliability and productivity due to anhedonia, lack of motivation and interest, poor sleep, and periods of nervousness. These symptoms would be most prominent in a high stress and noisy, and/or public work environment. Importantly, the examiner noted that the Veteran had a separate disorder of dementia consisting of cognitive impairments. Although the examiner indicated there was an overlap between PTSD and the cognitive disorder, the examiner further clarified this matter in the January 2017 opinion with respect to the functional impact of both disabilities finding that PTSD did not preclude the Veteran's ability to work as discussed further below. Significantly, at the September 2015 general VA examination, the examiner found that it was primarily nonservice-connected disabilities that precluded the Veteran's ability to work. Prior VA examinations in 2009, 2010, 2011 and 2012 also showed that the Veteran's functional impairment due to his service-connected disabilities did not preclude employment. In sum, while finding that the Veteran's disabilities impacted his ability to work, they did not prevent him from securing substantially gainful employment. The Board acknowledges that in support of his claim, the Veteran submitted a January 2013 private opinion for his PTSD. The examiner concluded that the Veteran's chronic PTSD rendered him unemployable. Specifically, he noted a marked difficulty in maintaining social function, frequent deficiencies of concentration, 4 or more expected episodes of decompensation in work settings, marked limitation in ability to carry out instructions, and an inability to respond appropriately to supervision, coworkers, and peer pressure. The examiner further concluded that the Veteran can function for very short periods in a lucid manner, but definitely not long enough to stay on task for more than one hour or on any consistent extended basis, and that return to work in any capacity is not likely given the effects of chronic PTSD on his memory and concentration. However, the Board finds this opinion has minimal probative value as the examiner failed to distinguish between the Veteran's service-connected PTSD and his other nonservice-connected psychiatric disabilities, especially his nonservice-connected dementia. In this regard, the January 2017 VA examiner discussed the private opinion and stated that there is no evidence that the Veteran's impairment in memory or concentration are due to PTSD. Rather, his cognitive impairment are more likely due to his previous diagnosed dementia, and is unrelated to PTSD. His military trauma occurred during 1961-1964, and he continued to work as Sheriff's deputy until he retired in 1991 due to physical issues (primarily back problems). Even though his mild to moderate PTSD was present, he was able to work effectively and was not experiencing a comorbid cognitive disorder. Thus, his PTSD and neurocognitive disorder are separate disorders. The examiner again concluded that the Veteran's PTSD symptoms resulted in reduced productivity and reliability. In sum, the Veteran's functional impairment caused by his PTSD did not preclude employment. The Board also recognizes that the Veteran had been receiving Social Security Administration (SSA) disability benefits since November 1990. However, SSA determinations are not binding on VA. Furthermore, importantly, the SSA's determination was based on nonservice-connected disabilities, including disorders of the back, heart impairment and lung impairment. Further, although the Veteran complained of increased headaches during the day to his physician in 2015, records after that visit indicate that the medications helped. The 2016 VA examiner also addressed the private opinion in his report. The examiner stated that the progress notes indicated a new type of headache by stating "this is a chronic problem. The current episode started more than 1 year ago." The 2016 VA examiner reasoned that the private examiner's conclusions were not substantiated by record review, and the headache described was a new type of headache that became chronic and unrelated to the service-connected headache. In sum, while the Veteran's disabilities did impact his ability to work, the combined functional limitations due solely to the Veteran's service-connected disabilities, either alone or in combination, did not preclude him from securing substantially gainful employment. Importantly, the 2011, 2012, 2015, 2016, and 2017 VA examinations all concluded, based on personal examinations with the Veteran and a review of his claims file, that the Veteran was able to secure employment as it pertained to his service-connected disabilities. This is consistent with the VA treatment records, which consistently indicate that the Veteran's symptoms of every disability were mild and not debilitating in any way. The Veteran's work experience included law enforcement, security and insurance claim agent. There is no indication that any symptoms caused by his service-connected disabilities would preclude work in any of these fields. Rather, the Veteran himself when seeking SSA disability benefits indicated that he was unable to work because he had to stand all the time. Rather, it was primarily physical limitations that precluded his ability to work. None of the Veteran's service-connected disabilities preclude this type of work. The VA examiners have consistently found that the Veteran's service-connected disabilities would not preclude light to moderate activities. The Board also finds it significant that the September 2015 VA examiner found that based on collective service-connected conditions (headache, PTSD, tinnitus, hearing loss, and fracture left mandible) the Veteran was capable of participating in regular physical activities with mild intermittent limitations related to mental health condition and some minor environment limitations due to service-connected hearing loss and tinnitus. Moreover, with respect to the collective impact of the Veteran's service-connected disabilities, the December 2016 VA examiner agreed with the prior VA examiner and had nothing to add. There is no medical evidence of record to contradict these opinions. Further, to the extent that the Veteran prior to his death and the appellant have attempted to establish his entitlement to a TDIU on the basis of lay assertions alone, the Board emphasizes that neither is not shown to possess expertise in medical or vocational matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Rather, they are competent to describe the Veteran's symptoms from his service-connected disabilities, but they are not competent to offer an opinion regarding the functional impact that such has on his ability to maintain gainful employment. Hence, the lay assertions in this regard have no probative value and are outweighed by the more probative medical opinions. In sum, the competent medical evidence offering detailed specific specialized determinations on the Veteran's functional impairment are the most probative evidence; the medical evidence also largely contemplates the lay assertions concerning the Veteran's employment and descriptions of symptoms. As such, the lay assertions are outweighed by the medical evidence of record. For the foregoing reasons, the Board finds that the Veteran's service-connected disabilities did not preclude substantially gainful employment. In conclusion, the preponderance of the evidence is against entitlement to a TDIU due to service-connected disabilities. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C. § 5107 (b). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.