Citation Nr: 21028185 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-11 023 DATE: May 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to November 21, 2011, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's service connected disabilities precluded the Veteran from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis prior to November 21, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to April 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2011 rating decision issued by the Department of Veterans Affairs (VA). See January 2012 Notice of Disagreement (NOD); February 2013 Statement of the Case (SOC); October 2013 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a December 2014 hearing. See December 2014 Hearing transcript. In April 2015, the Board remanded the claim as intertwined with the Veteran's other claims on appeal. See April 2015 Board decision. In December 2017, the Board remanded the claim for further development of the evidence. December 2017 Board decision. In July 2019, the Agency of Original Jurisdiction (AOJ) granted the Veteran a TDIU effective December 5, 2016. July 2019 Rating decision. The AOJ continued the denial of a TDIU for the period prior to December 5, 2016. July 2019 Supplemental Statement of the Case (SSOC). In October 2019, the Board remanded the claim for extraschedular consideration. October 2019 Board decision. In December 2020, the Board dismissed the issue of entitlement to a TDIU from November 21, 2011, to December 5, 2016. December 2020 Board decision. The Veteran was then entitled to a 100 percent schedular rating for his service connected ischemic heart disease and to special monthly compensation at the (s) rate from November 21, 2011, to December 5, 2016, so entitlement to TDIU for that period is moot. Id. The Board remanded the issue of entitlement to a TDIU on an extraschedular basis prior to November 21, 2011, for referral to the Director of Compensation Service. Id. The case is now back before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(a)(2). Entitlement to a TDIU on an extraschedular basis prior to November 21, 2011. The Veteran contends that entitlement to a TDIU on an extraschedular basis prior to November 21, 2011, is warranted due to the Veteran's posttraumatic stress disorder (PTSD). March 2021 Third party correspondence. The Veteran asserts that the September 2010, December 2010, and February 2012 VA treatment records shows GAF scores ranging from 51 to 60, which reflect moderate symptoms and establish occupational and social impairment with deficiencies in most areas such as work. School, family relations, judgment, thinking, and mood. Id. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that a veteran is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. To qualify for a total rating for compensation purposes, the evidence must show that a veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more with a combined disability rating of 70 percent or more. 38 C.F.R. § 4.16(a). Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is whether the Veteran's service-connected disabilities alone were of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether a veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Prior to November 21, 2011, the Veteran was only entitled to service connection for tinnitus (rated as 10 percent disabling from August 4, 2010), hearing loss (rated as noncompensable from August 8, 2010), and PTSD (rated as 50 percent disabling from August 4, 2010). As the Veteran's service-connected disabilities prior to November 21, 2011, do not meet the schedular rating requirements for a TDIU, whether the Veteran is entitled to a TDIU will be considered on an extraschedular basis. In addition, the Board notes that an award of TDIU cannot be based on symptoms from disabilities that have yet to be service-connected. See Delrio v. Wilkie, 32 Vet. App. 232, 248 (2019). In other words, only the Veteran's tinnitus, hearing loss, and PTSD symptoms may be considered in determining whether the Veteran was precluded from securing or following a substantially gainful occupation prior to November 21, 2011. After careful and thorough consideration of the evidence, the Board finds that the preponderance of the evidence is against finding the Veteran's hearing loss, tinnitus, and PTSD symptoms precluded the Veteran from securing or following a substantially gainful occupation prior to November 21, 2011. The Veteran has a high school education and prior experience as an owner of a wholesale produce retailer. See December 2014 Hearing transcript; June 2016 VA Form 21 8940. The Board notes that the Veteran's wholesale produce business ended because he was in prison for selling narcotics, and not due to his hearing loss, tinnitus, or PTSD. See March 2011 VA examination for PTSD. His last job was as a cashier in a convenience store. See December 2014 Hearing transcript. As discussed above, prior to November 21, 2011, the Veteran had no service connected disabilities that would limit his physical functional capacity such as with lifting, walking, standing, or sitting. The evidence supports that the Veteran's hearing loss and tinnitus result in some difficulty hearing other people. The medical treatment evidence shows that the Veteran reported to a VA treatment provider that he may have to quit his convenience store job because he has trouble hearing people. August 2010 VA treatment evidence; October 2010 VA treatment evidence. During the February 2011 VA examination for his diabetes, the Veteran reported he quit his last job as a cashier due to the ringing in his ears. The Board finds this evidence probative in showing that the Veteran experienced difficulty hearing others at his convenience store job. The Veteran was afforded a February 2011 VA examination for hearing loss and tinnitus, which diagnosed tinnitus, normal to moderate sensorineural hearing loss in the right ear, and normal to moderately severe sensorineural hearing loss in the left ear. The VA examiner found normal speech recognition scores of 96 percent in the left ear and 100 percent in the right ear but opined that the Veteran would have hearing difficulty. Id. The February 2011 VA examiner is a medical professional qualified to evaluate the Veteran's hearing loss and tinnitus symptoms but finding that the Veteran would have "hearing difficulty" is vague. However, the Board notes that the Veteran testified and answered questions during the December 2014 Board hearing with little difficulty. The VA examiners did not note a problem communicating with the Veteran, and the medical treatment evidence also shows no evidence he had trouble communicating with his treatment providers. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's hearing loss and tinnitus affects the Veteran's hearing in a noisy public environment such as a convenience store, but that he is able to hear others in a quieter space such as a medical office and with fewer people. As for the Veteran's PTSD, the Board finds that the symptoms results in, at most, occupational and social impairment with reduced reliability and productivity due to symptoms such as disturbances of motivation and mood, chronic sleep impairment, and depressed mood. See May 2015 Rating decision. The medical treatment evidence shows that the Veteran has some difficulty concentrating, depressed mood, anxiety, and is sleepy at times, but that this has not precluded his ability to work. August 2010 VA treatment evidence; December 2010 VA treatment evidence; July 2011 VA treatment evidence; February 2012 VA treatment evidence. His mental status exams have been otherwise normal, including his speech, thought content, and memory. See, e.g., December 2010 VA treatment evidence; July 2011 VA treatment evidence. The Veteran reported to his treatment providers that he gets along with others and is comfortable working with the public. August 2010 VA treatment evidence. Moreover, the Veteran reported that he had to quit his last job in a convenience store because of his difficulty hearing, that he had to take care of his mother, and because he is unable to do the required standing for the job. See October 2010 VA treatment evidence; April 2012 VA treatment evidence. This evidence is against finding that the Veteran was precluded from even his last job in a convenience store due to his PTSD. The Board considered the March 2011 and August 2015 VA examinations for the Veteran's PTSD, but find them to have limited probative value in determining the Veteran's functional limitations due his PTSD. The March 2011 VA examiner found no evidence that the Veteran's mental health symptoms would affect his social functioning or ability to work, but the examiner also found the Veteran did not meet the diagnostic criteria for PTSD. March 2011 VA examination for PTSD. The August 2015 VA examiner found the Veteran's PTSD resulted in mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or that his symptoms are controlled with continuous medication; but this is inconsistent with findings symptoms that include depressed mood, disturbances of motivation and mood, and a chronic sleep impairment. August 2015 VA examination for PTSD. The August 2015 VA examination is also several years after the period on appeal being considered. Instead, the Board finds the medical treatment evidence to be more probative. The Board also considered the Veteran's testimony during the December 2014 hearing. The Veteran testified that he quit his last job at a convenience store because he was unable to stand for six to 8 hours due to his heart and foot condition. December 2014 Hearing transcript. The Veteran also testified that tinnitus caused communication problems, but that his PTSD did not interfere with his ability to work. Id. The Veteran's testimony is consistent with the medical treatment evidence, which supports that his tinnitus causes some trouble communicating, but that his PTSD did not preclude his job at a convenience store. The Board considered the Veteran's contention that the September 2010, December 2010, and February 2012 VA treatment evidence supports that the Veteran is entitled to TDIU prior to November 21, 2011, in part, due to GAF scores from 51 to 60 supporting moderate symptoms. See March 2021 Third party correspondence. The Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5) states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the CAVC holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board assigns the GAF scores mentioned in the record no probative value. See also Golden v. Shulkin, 29 Vet, App. 221 (2018). Despite the GAF scores, as discussed above, the Veteran's treatment providers generally found the Veteran to have normal mental status examinations except for depressed mood, anxiety, or problems sleeping. The Board notes that even if the GAF scores were probative and support moderate symptoms as defined in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, this still would not support that the Veteran would be precluded from all substantial gainful occupations. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's PTSD symptoms result in occupational and social impairment with reduced reliability and productivity due to symptoms such as disturbances of motivation and mood, chronic sleep impairment, and depressed mood. The Board recognizes that the December 2020 Board decision remanded the issue of entitlement to a TDIU on an extraschedular basis for the period prior to November 21, 2011, for referral to the Director of Compensation Service. This was based on the Veteran's testimony that he last worked in 2010 due to his service connected disabilities, and to afford the Veteran any available opportunity for the benefits he is entitled to. The Director of Compensation Service found that the Veteran's hearing loss, tinnitus, and PTSD did not preclude the him from gainful employment. See February 2021 VA memo. Based on the evidence discussed above, the Board agrees. Based on the more probative lay and medical evidence, the Board finds that the Veteran's hearing loss, tinnitus, and PTSD restricts the Veteran from work in a noisy public environment and that he will have some reduced reliability and productivity, but that this would not preclude the Veteran from sedentary, light, or heavy jobs in quieter settings without a required production pace. Accordingly, the Board finds that entitlement to a TDIU on an extraschedular basis for the period prior to November 21, 2011, is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.