Citation Nr: 21028695 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 13-12 955 DATE: May 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran has a high school education and work experience as a police patrolman, restaurant manager, truck and bus driver, and he last worked in 2015. 2. The Veteran's service-connected disabilities, standing alone or in combination, and without consideration of impairment due to nonservice-connected disabilities or advancing age, do not preclude obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating have not been 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 from January 1967 to December 1968. The case is on appeal from a February 2011 rating decision, which denied a rating higher than 50 percent for posttraumatic stress disorder (PTSD). In the Veteran's February 2011 notice of disagreement (NOD), he requested a hearing before a Decision Review Officer (DRO); however, in a VA Form 21-4128, Statement in Support of Claim in January 2013 he requested a new psychiatric rating examination in lieu of a DRO hearing. That examination was conducted in January 2013. Thus, the hearing request is deemed withdrawn. In May 2017, the Board remanded the claim for an increased rating for PTSD for additional development. A September 2017 rating decision increased a 50 percent rating for PTSD, which had been in effect since December 30, 2004, to 70 percent, effective June 27, 2017 (date of VA rating examination). In July 2018, the Board denied a disability rating for PTSD higher than 50 percent prior to June 27, 2017, and higher than 70 percent, thereafter. It was noted that the Veteran's representative raised the issue of TDIU, which was part and parcel of the claim for an increased rating for PTSD and that the Board had jurisdiction over the issue, even though a TDIU rating had been denied in a June 2006 rating decision. Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim for a TDIU rating was remanded. In September 2020, the Board again remanded the TDIU claim to provide the Veteran with another VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, for completion, even though he had not executed and returned such form when it was provided in February 2019. Thereafter, he was again provided the VA Form, but as noted in a March 2021 supplemental statement of the case (SSOC) he again did not execute and return the form. In this regard, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The case has now been returned to the Board. Entitlement to a TDIU rating It is contended that the Veteran's service-connected disabilities preclude gainful employment. For the following reasons, the Board concludes that the preponderance of the evidence weighs against finding that service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation or warranted referral for extraschedular TDIU consideration. 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 less than 100 percent disabled, he still is deemed totally disabled if he satisfies two requirements in 38 C.F.R. § 4.16(a). First, certain minimum percentage evaluations must be met, i.e., if there is one service-connected disability it must be rated 60 percent or more; but, if there are two or more service-connected disabilities, at least one must be rated 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. Second, it must be found that there is an inability to secure and follow a substantially gainful occupation due to service-connected disability(ies). 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). Consideration may be given to factors such as 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 the percentage rating requirements under 38 C.F.R. § 4.16(a) are not met, 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). The Board does not have the authority to award an extraschedular TDIU prior to such referral. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). If the evidence supports a claim or is in relative equipoise, the claim is allowed but if the preponderance of the evidence is against the claim, it 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 50 percent from December 30, 2004, and 70 percent from June 27, 2017; residuals of a gunshot wound (GSW) of the right knee, rated 10 percent from December 19, 1968; tinnitus, rated 10 percent from December 30, 2004; and scars of the right leg, rated noncompensably disabling. He has been in receipt of a combined disability evaluation of 10 percent from December 19, 1968; 60 percent from December 30, 2004; and 80 percent from June 27, 2017. As to the Veteran's education and work history, on VA examination in May 1970 he was noted to have worked as a stock clerk for the first 6 months of 1969, as a mechanic for the last 6 months of 1969, and as a truck driver since January 1970. A February 2005 VA outpatient treatment (VAOPT) shows that he was a high school graduate. On VA psychiatric examination in March 2005 he reported having worked as a police patrolman for about 11 years. He then worked full-time for 20 years managing a restaurant his sister owned but for the last 2 years he only worked 2 hour per day because of increasing leg and hip pain, and difficulty hearing, but not due to psychiatric symptoms. On VA general medical examination in December 2005, he reported working only one hour daily at a family owned business because of back pain and PTSD. On the other hand, an April 2006 statement from Dr. E. M. reflects that the Veteran worked full-time as the owner of a restaurant. Information in January 2006 from the restaurant shows that the Veteran worked there from April 1991 to April 2005 in a managerial capacity, was paid for limited work, i.e., light duty due to physical disability, but was terminated due to being unable to complete assigned tasks. However, the information is of limited probative value because it conflicts with other information the Veteran provided that indicates he worked full-time for 20 years and only worked part-time since about 2003, as well as other information that he worked full-time as late as 2006. More recently, on VA PTSD examination in January 2013, the Veteran reported that he worked sporadically over the past year doing odd jobs for people at their homes. He worked in 2012 for a driving service, picking people up at an airport and driving them to their homes, and he was able to do minor carpentry and plumbing work. Even more recently, VA PTSD examination in June 2017 shows that he had been gainfully employed for three to four years as a bus driver and had had no problems with his boss or the people on the bus. Thus, he was able work alone while having minimal interaction with people. He left this occupation in 2015 due to a work-related motor vehicle accident in which he had injured his back, and for which he is drawing Workers' Compensation. He had three operations on his back. Next, in addressing the Veteran's service-connected disabilities, the Board notes that as to impairment due to PTSD, on examination in October 2010 it was noted that his PTSD caused reduced reliability and productivity. It was commented that he would have a very difficult time working in any sedentary or physical setting due to his PTSD and depression, especially in the social functioning aspect. A January 2013 VA PTSD examiner concluded that the Veteran's PTSD was productive of 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. On VA PTSD examination in June 2017 an examiner characterized the level of severity as occupational and social impairment with reduced reliability and productivity. On VA psychiatric examination in March 2021, it was reported that it was not possible to fully differentiate symptoms or impairment due to PTSD from an overlapping persistent depressive disorder. The examiner concluded that the psychiatric impairment was of a level productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Since the 2017 psychiatric examination, he had remained out of work because of a vehicular accident as a bus driver but he did not describe any particular issues in his position as a bus driver, and had minimal interactions with others in that job. Prior to the bus driving position, he worked in a family-owned restaurant in management for about 12 years but did not describe any particular occupational impact from his mental health symptoms in that work. The examiner stated that the Veteran was capable of managing his financial affairs. His history of social withdrawal and isolation, and a self-reported dislike of interacting with others, in a work setting, would make it difficult to function around others, especially if required him to interact regularly with others. His history of difficulties with memory could manifest in a work environment as difficulty remembering instructions and/or work assignments, including his ability to remember to follow through with such assignments. As to impairment from the Veteran's service-connected right knee GSW and resultant scarring, on VA examination in May 1970 he had no limitation of motion of that knee but had small metallic fragments under the skin, above the knee cap. A right knee X-ray revealed a single foreign body anterior to the lower portion of the femur, and the right patella was normal. On VA examinations in March 2005, he complained of right knee pain and on examination he had a faint but asymptomatic scar, mild effusion and swelling of the right knee with active flexion limited to 115 degrees. Additionally, a March 2005, VAOPT record noted that he reported that his tinnitus caused difficulty hearing normal conversations when there was background noise. Importantly, the Veteran has had significant occupational impairment from multiple nonservice-connected disorders. For example, he is not service connected for a hearing loss and an April 2005 statement from a private audiologist reflects that the Veteran's hearing loss was a communicative handicap, and he was a candidate for the use of hearing aids. Also, a February 2005 VAOPT record shows that he has chronic low back pain with radiculopathy secondary to lumbar stenosis and spondylolisthesis as well as degenerative joint disease (DJD) of the right hip. In fact, on VA general medical examination in December 2005, his main complaints were low back pain which precluded sitting for more than 30 minutes or standing for more than 10 minutes. He could only walk about 100 yards without having to stop due to back pain. He had had a total right hip replacement in 2005. On VA orthopedic examination in December 2005, he reported that he had not been able to function in the last couple of years due to low back pain. Furthermore, the VA PTSD examination in June 2017 shows that the Veteran had stopped working as a bus driver in 2015 due to a work-related motor vehicle accident in which he had injured his back, for which he is drawing Workers' Compensation. He had three operations on his back. Overall, 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. Rather, despite significant impairment from nonservice-connected low back pathology with radiculopathy and a total right hip replacement, he was able to continue working until sustaining severe injuries in a work-related vehicular accident. He has not worked since then, but the fact that the Veteran has been unemployed after that work-related vehicular accident 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 police patrolman, restaurant manager, and truck bus driver due to both his age and nonservice-connected low back and right hip disability. However, the Board may not consider the impact of either of these, or his nonservice-connected hearing loss, in determining entitlement to a TDIU rating. Also, the record demonstrates that neither his tinnitus nor his residuals of a GSW of the right knee would be a significant employment handicap, and the same is true as to his residual right knee scarring. Rather, the Veteran has focused on his PTSD as his major employment handicap. Certainly, his PTSD would reasonably cause some occupational limitations, particularly in employment that requires a significant amount of interaction with coworkers. However, the evidence demonstrates that 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 is relatively nonlabor-intensive and did not require significant interaction with coworkers. In fact, he was able to do just that in his work as a bus driver, and only stopped working since sustaining the work-related injuries. The Board finds the objective medical evidence as to the Veteran's 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 evidence does not demonstrate 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 restaurant manager, policeman, and truck and bus 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, or even breaks due to his right knee disability, 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, irrespective of his age and nonservice-connected disabilities, the Veteran could still perform sedentary work, such as that described above. Accordingly, an award of a TDIU rating as well as referral for extraschedular consideration is not warranted. 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.