Citation Nr: 21028506 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-39 407 DATE: May 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU rating), prior to September 17, 2019, is denied. FINDINGS OF FACT 1. The Veteran has a high school education and work experience as a truck driver until he retired in June 2012. 2. Prior to August 22, 2013, the numeric requirements for a schedular TDIU were not met but the Veteran was gainfully employed until June 2012 and the preponderance of the evidence is against finding that prior to September 17, 2019, the Veteran's service-connected disabilities, standing alone or in combination, and without consideration of impairment due to nonservice-connected disabilities or advancing age, did not preclude obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU, prior to September 17, 2019, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to January 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to a TDIU rating. The Veteran's Notice of Disagreement (NOD) was received in February 2012 and the RO issued the SOC in May 2012. A July 2012 VA letter indicates that the VA accepted the Veteran's June 2012 lay statement in lieu of a VA Form 9, substantive Board appeal. In December 2018, the Board remanded the case to the RO for further development and adjudicative action. An RO rating decision in May 2020 granted an increased rating for service-connected posttraumatic stress disorder (PTSD) to 70 percent, effective from September 17, 2019, and granted a TDIU rating as well as basic eligibility to Dependents' Educational Assistance (DEA), effective September 17, 2019. In March 2021 the Board granted a 70 percent disability rating for service-connected PTSD, prior to September 17, 2019, but denied a rating greater than 70 percent for PTSD, since September 17, 2019. It also remanded for readjudication of the claim for a TDIU rating, prior to September 17, 2019, which was completed in a supplemental statement of the case (SSOC) later in March 2021. A March 2021 rating effectuated the Board's grant of an earlier effective date for a 70 percent rating for PTSD, as of August 22, 2013. Citing to Warren v. McDonald, 28 Vet. App. 214, 218 (2016) and DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) Board decisions in 2018 and 2021 found that Veteran did not fully understand the consequences of a prior withdrawal, such that the prior withdrawal was not "done with a full understanding of the consequences of such action on the part of the Veteran," and, so, the Board retained jurisdiction. A VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, dated December 19, 2019, and received on January 7, 2020. That VA Form 21-22 was signed by the Veteran, appointing The American Legion as his accredited representative. In the April 2021 Appellate Brief Presentation by the Veteran's accredited service organization representative it was stated that this VA Form 21-22 appeared to be invalid because it was signed by an "Administrative Staff" member and not an accredited representative of The American Legion, as required by 38 C.F.R. § 14.631 and there appeared to be an improper or invalid email address. However, it was acknowledged that the latest valid appointment by VA Form 21-22 was dated in August 2005, which also appointed The American Legion. It was suggested that the August 2005 VA For 21-22 was "outdated," but the fact remains that the Veteran has never revoked the August 2005 appointment of his current accredited representative and nothing in the record suggests that he has ever or now desires to do so. While it was requested that the Board inform the Veteran of the "deficiency in his [December 2019] appointment," because the August 2005 VA Form 21-22 remains valid there is no need, or requirement, to do so. Entitlement to a TDIU rating, prior to September 17, 2019 It is contended that the Veteran's service-connected disabilities precluded gainful employment prior to the current effective date of September 17, 2019. However, for the following reasons, the Board concludes that the preponderance of the evidence weighs against a finding that from June 28, 2011 until August 21, 2013 the Veteran met the numeric requirement for schedular TDIU or that referral for extraschedular consideration of a TDIU rating was warranted; and the Board finds that service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation at any time prior to September 17, 2019. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19. A veteran is totally disabled if service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. §§ 3.340(a)(2), 4.19. Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides. It also has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). "[U]nable to secure and follow substantially gainful employment" in 38 C.F.R. § 4.16(a) comprises both economic and noneconomic components, which required consideration of a wide range of factors and one is a veteran's ability to perform sedentary activities. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). Consideration may be given to factors such as the Veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). If a veteran does not meet the percentage evaluation requirements under 38 C.F.R. § 4.16(a), a TDIU rating may be assigned on an extraschedular basis under 38 C.F.R. § 4.16(b) if unemployable due to service-connected disabilities. If so, the matter is referred to the Director of the Compensation and Pension Service (Director) for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 208 (1995); see also Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (the Board may not initially assign an extraschedular TDIU rating but may review a decision by the Director). If unemployable due to service-connected disabilities and the percentage evaluation requirements of 38 C.F.R. § 4.16(a) are not met, under 38 C.F.R. § 4.16(b) the matter may be referred to the Director of the Compensation and Pension Service (Director) for initial consideration of a TDIU rating on an extraschedular basis. See also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 208 (1995). VA must determine whether the evidence supports a claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran is service-connected for: PTSD, rated 30 percent from June 18, 2011, and 70 percent from August 22, 2013; prostate cancer, status post radical prostatectomy, rated 40 percent from June 28, 2011; tinnitus, rated 10 percent from June 28, 2011; bilateral sensorineural hearing loss rated noncompensably disabling from June 28, 2011; and erectile dysfunction, rated noncompensably disabling from June 28, 2011. He has been in receipt of a combined 60 percent rating since June 28, 2011, and 80 percent since August 22, 2013. He has been entitled to special monthly compensation (SMC) under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ from June 28, 2011. He has been awarded a TDIU rating and granted basic eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35, both effective September 17, 2019. The Veteran's initial awards of service connection were made effective June 28, 2011 but from that time until August 21, 2013, he did not meet the criteria for a TDIU rating; however, he did meet the criteria to a schedular TDIU rating from August 22, 3013, until the current TDIU effective date of September 17, 2019 (date of VA psychiatric rating examination). In the June 2012 and October 2013 VA Forms 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran reported that while he had become too disabled to work in June 2007, he had last worked full-time in June 2012. He has work experience as a fuel truck driver. He had left his last job because of his disability but had not tried to obtain employment since becoming too disabled to work. He had a high school education. As to impairment due to PTSD, on initial VA PTSD examination in August 2011 that disability was characterized as resulting in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. He reported driving a truck for a farming company for the past 23 years and enjoying that job. A report of a private psychological evaluation received in August 2013 shows that the Veteran worked at various manual labor jobs and driving jobs before becoming a beekeeper but later became a truck driver for an agricultural company for many years. He reported having significant difficulty interacting with his boss, which eventually led to his boss telling him to quit or be fired. The Veteran quit a week prior to this examination, which he attributed to a worsening of psychiatric symptoms. It was found that he was capable of attending to daily routines and habits with at least a fair attention to detail, although he was becoming more socially isolated. On VA psychiatric examination in February 2014, the Veteran reported having a best friend with whom he occasionally went hunting and fishing with and to auctions. His level of occupational and social impairment was described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, selfcare, and conversation. It was opined that his PTSD would not prevent him from being able to work in a labor position, such as stacking, sorting, or stocking, and that he would be able to perform administrative assistant type duties or filing. During an April 2014 Decision Review Officer (DRO) hearing, the Veteran and a friend attested to his suicidal ideation and stated that he retired early due to PTSD. At a VA examination in May 2015, the Veteran reported that he and his best friend were no longer friends, but he liked to go to auctions and planned to go deer hunting. The level of occupational and social impairment was described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner stated that PTSD would lead to intermittent periods of inability to perform occupational duties with associated decrease in work performance, but PTSD did not lead him to be unemployable when he finally retired. Rather, his PTSD at retirement continued at the same level as when previously evaluated in 2014. On VA PTSD examination on September 17, 2019, it was noted that the Veteran had retired in 2012 after driving a fuel truck for 25 years. The level of occupational and social impairment was described as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The VA examiner stated that the Veteran's PTSD symptoms included intolerance for being around others, but it was observed that his fuel truck driving job was isolated, with no direct involvement with co-workers and rarely with supervisors; however, he was now unable to drive a truck due to a prosthetic left knee replacement. He had never received psychiatric treatment or taken psychotropic medications. With respect to impairment from the Veteran's radical prostatectomy and erectile dysfunction, on VA genitourinary examination in December 2011 it was noted that he had a radical prostatectomy in March 2007. It was opined that this disability did not impact his ability to work. On VA examination in February 2014, it was opined that he had no demonstrable functional deficits related to his service-connected erectile dysfunction and his prostate cancer did not impact his ability to work. It was further stated that he still drove an automobile and cooked for himself. He had no functional deficits of his upper or lower extremities, and he walked about 2 mile each day. He had no functional problems with daily activities. On VA examination in April 2015, as to the functional impact of his prostate cancer, it was stated that he was retired, but has other reasons why he could not work, such as arthritis and joint replacements. The Veteran was unsure how the prostate cancer would affect the ability to work, but he did not believe that he would be able to do so "for many reasons". As to functional impairment from tinnitus and hearing loss, on VA audiology evaluation in August 2011 it was noted that after service he had worked as a lathe operator and truck driver, and that he was an avid hunter. It was opined that his hearing loss and tinnitus did not impact ordinary conditions of daily life, including ability to work. At a February 2014 VA audiology evaluation, it was opined that these disabilities did not, by themselves, preclude being able to secure and maintain substantially gainful employment. The rationale was that he was able to hear and communicate with others, even with his level of hearing loss, and especially if he were to use hearing aids. Also, his tinnitus did not cause him to be unable to concentrate on tasks at places of employment. A May 2015 VA audiology evaluation noted that he had some difficulty understanding others when noise was present. At a January 2019 VA audiology evaluation he reported having difficulty hearing sounds that were a long ways off and difficulty hearing soft spoken people but it was opined that his tinnitus did not impact the ordinary conditions of daily life, including ability to work. Private clinical records show that the Veteran had a total left knee replacement in 2008. A January 6, 2020 VA outpatient treatment (VAOPT) record shows that the Veteran underwent a left transfemoral amputation on November 15, 2018, due to a failed total knee arthroplasty complicated by infection. Overall, prior to September 17, 2019, the Veteran's service-connected disabilities certainly made it difficult to obtain or keep employment, as recognized by the high rating assigned, but did not render him unemployable or preclude him from performing the physical and mental acts required by employment, prior to the significant increase in severity of his PTSD demonstrated by the September 17, 2019 VA psychiatric examination. However, the sole fact that the Veteran was unemployed after he retired or had difficulty obtaining employment is not enough; the evidence must more nearly reflect that the Veteran was not capable of performing the physical and mental acts required by employment. See Van Hoose, 4 Vet. App. 361. The Board acknowledges that the Veteran is now unable to perform his past work as a truck driver due to both his age and nonservice-connected left knee disability, with subsequent amputation. However, the Board may not consider the impact of either of these in determining entitlement to a TDIU rating. Rather, virtually all the medical opinions of record agree that neither his tinnitus nor his hearing loss would be a significant employment handicap, and the same is true as to his residuals of a radical prostatectomy. Rather, the Veteran has focused on his PTSD as his major employment handicap. The Board acknowledges that the Veteran's service-connected PTSD would reasonably cause some occupational limitations, particularly in employment that requires a significant amount of interaction with coworkers. However, prior to the increase in severity of his PTSD, demonstrated by the September 17, 2019 VA examination, his PTSD alone, or in combination with his other service connected disorders, was not severe enough to prevent him from securing or following substantial employment that was relatively nonlabor-intensive and did not require significant interaction with coworkers. The Board finds the objective medical evidence, consisting of medical opinions as to his functional ability, to be of greater probative value as to the Veteran's level of impairment than his self-reported level of functional impairment. The medical opinions during this time frame do not indicate that he was incapable of obtaining or retaining substantially gainful employment. Based on the evidence of record showing a high school education and work experience as a truck driver, the Board finds no readily apparent reason why the Veteran would not be able to secure and follow substantially gainful employment performing clerical work or other office work that did not necessitate a significant amount of interaction with coworkers. In fact, his high school education aligns with an ability to perform sedentary work of an unskilled or semi-skilled nature that did not require specialized training, such as clerical, inspection, or assembly work. He would be capable of a variety of forms of employment that require some degree of writing, arithmetic, computer skills, or other tasks consistent with his work history. To the extent that the Veteran would require unscheduled breaks due to stress from the psychiatric impairment from PTSD, the evidence does not reflect that an employer cannot make reasonable accommodations (e.g. breaks to rest) for the Veteran. The Americans with Disabilities Act (ADA) mandates reasonable accommodations for employees with substantial disabilities so long as the employee can satisfactorily perform the work once those accommodations are made. See 42 U.S.C. Chapter 126. No evidence is of record demonstrating that the Veteran required any workplace accommodations that would be extraordinary or beyond those that would be required by the ADA. Thus, the Board concludes that the preponderance of the evidence demonstrates that during the relevant time frame the Veteran could still perform sedentary work because, irrespective of his age and nonservice-connected disabilities, he could perform work, such as that described above. (Continued on the next page) For these reasons and bases, on balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.