Citation Nr: 21028198 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-34 710 DATE: May 10, 2021 ORDER Entitlement to a total disability rating based upon unemployability due to service-connected disabilities (TDIU), prior to December 21, 2012, is denied. FINDING OF FACT Prior to December 21, 2012, the Veteran's service-connected disabilities did not preclude the Veteran from securing and following substantially gainful employment. CONCLUSION OF LAW Prior to December 21, 2012, the criteria for entitlement to a TDIU on a schedular basis or an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from March 1968 to October 1969. In December 2020, the Agency of Original Jurisdiction (AOJ) memorialized a deviation from the Board's July 2020 remand directives, pursuant to its operational procedures. As delineated with specificity in a December 4, 2020 memorandum, the AOJ amended "prior to December 2, 2012" to "prior to December 21, 2012." See December 4, 2020 VA Memo. Previously, the claim was most recently before the Board in July 2020 and was remanded for additional development. As the prior remand directives have been completed the claim is again before the Board. Stegall v. West, 11 Vet. App. 268 (1998). Applicable Law The Veteran asserts that he is entitled to a grant of a TDIU prior to December 21, 2012. As reflected above, this entitlement includes entitlement on an extraschedular basis. The Veteran advances that he presented an unusual disability picture, prior to December 21, 2012, such that his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a).\ The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. 524; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § § 3.340 (a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § § 4.16(a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. § §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § § 4.16(b). Evidence and Analysis Prior to December 21, 2012, the Veteran had the following service-connected disabilities: 1) posttraumatic stress disorder (PTSD) at 50 percent, effective from August 20, 2006; 2) bilateral sensorineural hearing loss (BHL) at 10 percent, effective from December 18, 2007 and at 20 percent, effective from December 1, 2009; and 3) tinnitus at 10 percent, effective from July 29, 2003. Consequently, the Veteran did meet schedular requirements effective from December 18, 2007. See 38 C.F.R. § §§ 3.340, 3.341, 4.16(a). The Board notes here that that the Veteran's latest rating code sheet discloses this information, despite the rating sheet not contemplating a combined 70 percent rating, with PTSD at 50 percent. See October 22, 2020 Rating DecisionCodesheet, passim. In a January 2021 advisory opinion, the Executive Director of Compensation Service found that the evidence or record fails to support the Veteran's contention that any service-connected disability or any combination of service-connected disabilities (to include effects and respective symptomatology) prevented him obtaining and maintaining substantially gainful employment prior to December 21, 2012. Nevertheless, the Board adjudicates this claim de novo, on both a schedular basis and an extraschedular basis. Upon a December 2009 VA-contracted BHL examination, an audiologist indicated that the Veteran's diagnosed BHL had no effects of the Veteran's daily activities. Upon a January 2010 VA-contracted BHL examination, an audiologist indicated that the Veteran's diagnosed BHL did impact the Veteran's daily activities by producing communicative difficulties. In a lay statement (associated with the claims file in February 2010), the Veteran conveyed that he always jumps when he hears loud noises; becomes irritated when people point objects at him; and suffers from disquieting memories and feelings. A review of VA progress notes reveals that the Veteran attended VA PTSD educational programming in 2010. In October 2010, a psychiatrist noted that the Veteran has been unemployed since 2008. This psychiatrist indicated that the Veteran endorsed recurrent intrusive thoughts and nightmares of trauma. The Veteran informed this psychiatrist that PTSD educational programming was very helpful. Upon a November 2010 initial VA PTSD examination, a psychologist indicated that the Veteran reported that he had graduated from high school and had worked for a gas cylinder company for 34 years until the facility closed in 2008 (and the Veteran "was forced" to take retirement). The Veteran conveyed that his retirement income is poor (presumably low), to the extent that the Veteran sought other employment opportunities. As to daily activities, the Veteran reported that he stayed at home looking for work. This psychologist did not report that the Veteran's psychological symptoms rendered him unable to obtain and maintain substantially gainful employment. In a December 2010 VA progress note, a VA psychiatrist reported that tinnitus and Veteran's chronic PTSD with associated depression compounded the Veteran's insomnia. The psychiatrist prescribed zolpidem. A review of the Veteran's Social Security Administration (SSA) records discloses that SSA determined that the Veteran was not disabled for SSA purposes in August 2011. Upon scrutiny of the associated medical records and the associated SSA analysis, the Veteran's mental health ("affective") disorder neither restricted the Veteran's daily-life activities nor inhibited the Veteran's ability to concentrate and interact socially. The Board observes that the Veteran included PTSD and tinnitus in his SSA disability claim, along with a host of contended non-service-connected disabilities. The Veteran's SSA profile and benefit profile disclose that the Veteran's initial entitlement arose on November 20, 2011. SSA did not qualify this benefit as an SSI disability payment. In a November 2012 letter, a VA readjustment counseling therapist wrote that he had counseled the Veteran individually and in group contexts. This therapist indicated that the Veteran experienced severe chronic symptoms of PTSD, which warranted reassessment. The therapist also noted that the Veteran complained of tinnitus. This VA therapist did not offer commentary upon the Veteran's employment status and/or inability to obtain and maintain substantially gainful employment. Even though the Veteran did not complete his VA Forms 21-8940, the Board has extrapolated from other evidence that the Veteran completed his high school education. And, the Veteran worked for over three decades in the field of quality control in the petrochemical industry. A review of the Veteran's service records discloses a military occupational specialty (MOS) involving some form of mechanical work with weaponry (with no related civilian occupational equivalent). While the Veteran asserts that his service-connected disabilities rendered him unable to obtain or retain employment consistent with her education and experience prior to December 21, 2012, the evidence of record shows that the Veteran has a high school education and extensive professional experiences in the petrochemical industry. Importantly, the Veteran worked for more-than-three decades as a quality controller, suggestive of a highly transportable skill-set apposite to a host of industries. Collectively, the Board finds that this combination of education and work experiences, prior to December 21, 2012, were more-than-sufficient for the Veteran to obtain and maintain gainful employment considering his specific education and specific work in quality control. See Withers v. Wilkie, 30 Vet. App. 139 (2018). The Board recognizes that prior to December 21, 2012, the Veteran experienced recurrent intrusive thoughts, nightmares of trauma, communicative difficulties, and insomnia (compounded by PTSD and tinnitus). However, no clinician of record indicated that these symptoms precluded the Veteran from obtaining and maintaining substantially gainful employment at any point prior to December 21, 2012. And, by his own account, the Veteran ceased working in 2008 when he was "forced" to take retirement because his work facility closed. Stated differently, the respective "limitations" of the Veteran's service-connected disabilities prior to December 21, 2012 did not rise to the level of rendering the Veteran totally impaired physically, occupationally, or socially. Indeed, the evidence of record does not reveal that any one of the Veteran's service-connected disabilities, or the entirety of his service-connected disabilities, precluded him from obtaining and maintaining gainful employment prior to December 21, 2012. Prior to December 21, 2012, the Veteran's quality control skills would lend themselves to employment in a multitude of industries that produce goods and provide services. Moreover, with three decades of expertise, it is quite reasonable to assume that the Veteran had the wherewithal to train and mentor newly-hired quality controllers. Here, the Board notes that many employers, as early as 2012, offered accommodations pursuant to the ADA and state employment laws, to allow for downtime due to disabilities. In the Veteran's case, it would have been feasible for an employer to provide an altered work schedule to accommodate the Veteran's insomnia and disrupted sleep cycles and breaks in quiet settings where the Veteran could collect himself during periods of intrusive thoughts and bouts of tinnitus. Notably, telephone amplification devices and personal amplification devices could have more than surmounted the Veteran's communicative difficulties. Prior to December 21, 2012, the Board finds that the evidence of record fails to reveal exceptional circumstances which would warrant consideration under 38 C.F.R. § 4.16(b). The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, prior to December 21, 2012, entitlement to a TDIU on both a schedular basis and an extraschedular basis is denied. K.R. Kardian Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.