Citation Nr: 21029367
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 17-46 709
DATE:  May 13, 2021

ORDER

Entitlement to service connection for a skin disorder is denied.

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is denied.

FINDINGS OF FACT

1. A skin disorder is not related to service, to include exposure to herbicide agents.

2. The schedular criteria for TDIU are not met; the Veteran's service-connected disabilities have not rendered him/her unable to secure or follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a skin disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020).

2. The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a veteran (the Veteran) who had active duty service from February 1970 to September 1971. 

This appeal comes before the Board of Veterans' Appeals (Board) from an April 2020 Order of the United States Court of Appeals for Veterans Claims (Veterans Court). The appeal originated from October 2016 and March 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In a March 2019 decision, the Board denied service connection for a skin disorder. The Veteran appealed that decision to the Veterans Court. In an April 2020 memorandum decision the Veterans Court vacated the Board's decision and remanded the service connection issue back to the Board for additional development. 

In January 2021, the Board remanded that issue for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board also denied an increased disability rating for the service-connected mental disability, an issue on appeal at that time. The Board's decision with respect to that claim is final. See 38 C.F.R. § 20.1100. 

Service Connection  Laws and Regulations

VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). 

Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). 

Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. 

VA has established a presumption of exposure to herbicide agents applicable to veterans who served in the Republic of Vietnam during the Vietnam War, and a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, or who are shown to have been actually exposed to herbicide agents during service. 

If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).

Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). 

Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2).

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54.

Entitlement to service connection for a skin disorder, to include as related to exposure to herbicide agents.

The Veteran is seeking service connection for a skin disorder and claims that it is related to exposure to herbicide agents or other commercial herbicides in service. 

Service treatment records contain no record of complaint of, or treatment for, skin symptoms, nor do they contain any diagnosis of a skin disorder, during the Veteran's active service. 

A report of medical examination performed on August 10, 1971, at service separation, reveals that the Veteran's skin was examined and was found to be clinically normal, with no skin problems found (Record 10/30/2009 at 12).

A report of medical history completed by the Veteran on the same day as the examination reveals the Veteran's affirmation that he had no current skin diseases, and that he had no history of skin diseases (Record 10/30/2009 at 18).

The Veteran was separated from active service on September 28, 1971. He filed his initial claim of entitlement to service connection in October 2009, but noted only hemorrhoids at that time. He filed a claim for a skin disorder in July 2015, more than 40 years after service separation. 

When examined in February 2009 and May 2010, no suspicious lesions or moles were found (Record 03/03/2010 at 7, 14). 

In a family practice record, dated January 2006, the Veteran reported that he would get dry skin at that time of year. He used moisturizing soap and creams, but still had itchy dry skin, mostly in the lateral thighs, but sometimes in other places. The physician described dry eczematous patches on the lateral thighs. No unusual lesions were seen (Record 03/03/2010 at 21).

An Agent Orange Examination in July 2015 reveals a prior medical history significant for eczema (Record 08/04/2015).

A November 2016 "Physician's Statement" from C. Sotolongo, MD, consists of a partially pre-printed form. The form notes that the diagnosis was eczema. Under the diagnosis is printed: "One cannot say exactly how long this condition existed prior to the date of diagnosis or definitely state its cause. However, it is as likely as it is not, that [the Veteran's] [e]czema is related to his exposure to Agent Orange while serving in Thailand" (Record 11/18/2016). 

A November 2016 article from Public Health discusses use of herbicide agents in Thailand (Record 11/18/2016).

An April 6, 2017, VA Primary Care Note reveals that the Veteran denied a rash (Record 10/14/2017).

A VA examination of the skin in February 2021 reveals a diagnosis of eczema, which was first diagnosed in 2010, but "per veteran, his skin problem started earlier" (Record 02/16/2021). The examiner opined that the condition claimed was less likely than (less than 50 percent probability) related to service. The rationale was that two skin conditions, chloracne and porphyria cutanea tarda, may be related to exposure to Agent Orange during the Vietnam War. Eczema is not associated with AO exposure (Record 02/16/2021).

After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for a skin disorder are not met. 

The Board initially finds that its remand instructions were substantially complied with. The RO obtained a medical nexus opinion. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand). This also satisfies the instruction of the Veterans Court.

There are two basic presumptions applicable to herbicide agents: (1) the presumption of exposure to herbicide agents, and (2) the presumption of service connection for certain diseases which VA has designated as associated with exposure to herbicide agents. The presumption of exposure to herbicide agents does not apply to veterans who served in Thailand. The Veteran has not asserted that he was present in any areas to which VA's legal presumption of exposure applies. Accordingly, his exposure must be demonstrated by the facts of the case. 

Certain Air Force personnel serving in Thailand are generally acknowledged to have been exposed to herbicides of either tactical (Agent Orange) or commercial origin. While this is not a legal presumption, it is acknowledged in VA's Administrative Procedure Manual. The Veteran did not serve in the Air Force. The Veteran served in Thailand at the US Army Headquarters and Service Company 76th Radio Research Field Station from July 30, 1970, to July 29, 1971. 

Those who served in the Army are given special consideration if they worked as a member of a military police unit, or with a military police occupational specialty. Here, the Veteran's service personnel records show that he served as a security guard during his only service in the Pacific Theater (Record 08/17/2015 at 6). Accordingly, even though there is no presumption in effect, exposure to herbicides, either tactical or commercial, is to be conceded under VA policy. See M21-1, IV.ii.1.H.4.b (updated April 15, 2021). 

However, in this case, the Veteran does not have any of the diseases that are shown or acknowledged to be associated with herbicide agents. He has been diagnosed with eczema. This is not an herbicide-presumptive disease listed under 38 C.F.R. § 3.309(e). Therefore, the presumption of service-connected for the diseases specified under that section does not apply. As neither of the presumptions regarding herbicide agents applies in this case, the decision thus turns to consideration of direct service connection. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The Board acknowledges conflicting medical opinions regarding a nexus between the Veteran acknowledged exposure to herbicides and the subsequent development of his current skin disorder. The Board assigns greater probative weight to the VA opinion as it appears more consistent with the established facts. 

The opinion of Dr. Sotolongo is completely without rationale. The provider does not explain the basis for a favorable opinion in light of the admitted doubt as to when the condition started and what caused it. This is significant as the Veteran appeared to be uncertain himself of the date of onset, telling the February 2021 VA examiner only that it started prior to 2010. The VA examiner also reasoned that Agent Orange exposure is not deemed to be associated with eczema. This is consistent with the omission of eczema and other skin diseases from the presumptive list. Chloracne and porphyria cutanea tarda being the only skin diseases listed under the herbicide presumptive provisions. 

The Board notes that the diseases presumed to be associated with herbicide agents are based on periodic review by the National Academy of Sciences. In its most recent review, it was concluded that there is inadequate or insufficient evidence of an association between exposure to herbicide agents and other chronic skin conditions not already acknowledged. See Nat'l Acad. of Sci., Inst. of Med., Veterans and Agent Orange: Update 11 (2018). Thus, the opinion of Dr. Sotolongo appears to be in conflict with the generally accepted view in the medical community regarding the association between eczema and exposure to herbicide agents, and yet there is no discussion of this in his opinion. 

The opinion of Dr. Sotolongo also appears to be inconsistent with the normal findings for the skin at service separation, and with denial of the Veteran at that time that he had a skin disease, or that he had any history of a skin disease. These facts were not explained by Dr. Sotolongo. While he may have intended that the apparent post-service onset of symptoms is consistent with his opinion, he did not explain how this could occur. Accordingly, the Board is more persuaded by the VA opinion and finds that there is no medically-established relationship of etiology between the Veteran's exposure to herbicides, tactical or commercial, and the apparently post-service onset of eczema. 

The Board has considered the Veteran's lay statements regarding etiology. The Board acknowledges its obligation to read the filings of this pro se claimant liberally. See Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (each emphasizing that pro se filings must be read liberally). In fact, the Veteran has relatively little beyond his belief that his currently diagnosed eczema is related to exposure to herbicide agents. He has not directly asserted that the current diagnosis began in service and has continued since service. Such an assertion is refuted by the record. The service separation examination is persuasive evidence that the post-service condition was not present at that time, and its onset was therefore temporally remote from service. There have also been subsequent examinations of the skin which reported no abnormalities. This evidence is at least probative in the determination as to whether the skin problems noted at various times are part of the same chronic disorder. 

Relating a current skin disorder, or symptoms thereof, to temporally remote events in service, including exposure to herbicide agents or commercial herbicides, is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). The issue requires medical knowledge, as it involves differentiation between various skin disorders and understanding of their potential causes. Therefore, it is outside the competence of a layperson. Such an opinion is not capable of lay observation. Accordingly, the Veteran's lay statements are unpersuasive as to an etiologic relationship between the claimed eczema and service, to include exposure to herbicide agents therein. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).

In sum, the Board finds that the claimed skin disorder is not related to service. In light of this finding of fact, the Board concludes that service connection for the claimed skin disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

TDIULaw and Regulations

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15.

A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 

For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a).

Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration.

For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran 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).

The Board itself cannot assign an extra-schedular rating in the first instance. The Board's consideration is limited to whether to refer the case to the Director of Compensation and Pension Service for an extra-schedular evaluation. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16(a) are not met). 

The Board observes that while entitlement to an extraschedular disability rating under 38 C.F.R. § 3.321(b)(1), and entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b), are similar, they are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). A TDIU on an extraschedular basis merely requires a determination that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disability or disabilities. See VAOPGCPREC 6-96.

Entitlement to a TDIU an extraschedular basis requires that the Veteran show that the service-connected disability or disabilities precludes substantially gainful employment; whether the veteran can work in his or her preferred or current position is not the standard. Moreover, VA may find that a veteran is physically capable of substantially gainful employment even if he or she is not currently engaged in such employment.

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Veterans Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Veterans Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. 

In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

Service connection is currently in effect for two disabilities. A rating of 50 percent is assigned for the service-connected mental disability since July 7, 2017. A rating of 10 percent is assigned for the service-connected tinnitus since August 1, 2018. At no time during the period on appeal are the schedular criteria for TDIU met. 

There has been no persuasive evidence that the Veteran's tinnitus significantly impacts his employability. He simply noted that he had the condition on his claim form. At the VA Examination in October 2018, the examiner reported that there was no impact of the condition on the ordinary conditions of daily life, including the ability to work (Record 10/09/2018). Thus, with no significant impact of tinnitus on employment, we are left with the service-connected mental disability, which is rated at only 50 percent. With multiple service-connected disabilities, the minimum schedular rating required for TDIU is 70 percent. Thus, the criteria for TDIU on a schedular basis are not met. 

The December 2017 VA mental health examiner stated that the Veteran's mental health symptoms appear best categorized as transient to mild and result in transient to mild impairment in daily functioning; although, it appears he is generally functioning quite well and has some meaningful interpersonal relationships. For example, the Veteran described a notable history of gainful employment, including employment in several high stress jobs, with no clear interference from mental health symptoms with the exception being when he started to experience fatigue from his difficulty sleeping (seemingly) in approximately March 2010. Nonetheless, his prescription medication adequately controlled his sleep at that time. Similarly, when asked by the examiner how his current mental health symptoms impact his day-to-day functioning on his current medication, the Veteran stated: "They don't." However, he noted, "I can avoid stuff" like having to deal with people at work." Provided this understanding of the impact of his psychiatric symptoms on his overall functioning, this examiner was of the opinion that the Veteran was experiencing 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. The Veteran reported his first significant job was working as a Deputy Sheriff (approximately 1 year). He then worked as a public safety officer (3 years) before working as a federal correctional officer (5 years). He began working for a computer networking company in 1984 and he remained with that company 17 years. In 2001 he was laid off, and he worked in retail (2 years) before working in contracts management for (3 years). He then worked for a dryer manufacturer (8 months) before being laid off. He "took a year off" and then worked for a nonprofit research firm (2-3 years) before being laid off. After taking off another year, he returned to the dryer manufacturer and remained there for 6 years. He "retired" in November 2016. The examiner commented that records suggest his retirement was related to a back injury and related surgery. The Veteran denied having ever been fired, but he was "allowed to resign in lieu of being fired" because he did not get along well with coworkers while working as a Deputy Sheriff (Record 12/01/2017).

In a February 2018 addendum, the examiner stated: "based upon [the Veteran's] self-report and a review of available records, none of his mental health symptoms would significantly limit his ability to function in a sedentary and physical occupational environment." Moreover, he characterized his most salient mental health symptom (i.e. sleep impairment) as resulting in no more than mild fatigue during the day, and his sleep is improved on his current medication regimen. Regarding the possible impact of other mental health symptoms on his sedentary and physical occupational functioning, the Veteran reported intermittent sad mood and occasional irritability which has remained relatively unchanged since his discharge from military service and has never negatively impacted his sedentary or physical occupational functioning in the past. In fact, despite reporting he was more likely to become irritable when working due to having to interact with other people, he specifically denied having ever been fired for poor performance, not meeting employer demands/expectations, or for engaging notable altercations with coworkers, supervisors, or customers. While he did report being "allowed to resign in lieu of being fired" secondary to not getting along well with coworkers while working as a Deputy Sheriff in 1971, he described this more as a result of individual differences and conflicting personalities than clinically-derived impairment. Most notably, he is identified to have stopped working in 2016 because of a back injury and related surgery without mention of interference from mental health symptoms. He reiterated his overall mental health symptoms have not changed since he last worked, and he did not report any impairment in sedentary and physical occupational functioning secondary to mental health symptoms at the time he retired (Record 02/07/2018). 

A November 2019 VA mental disorders examination includes significant information regarding the Veteran's occupational function. The examiner opined that while the Veteran does have difficulty adapting to stressful circumstances, his occupational and social impairment reflects reduced reliability rather than deficiencies in most areas. Although it was previously noted that the Veteran was retired, he had obtained employment 6 hours a week moving golf carts. He reported that he does not have contact with others. The Veteran indicated that while his irritability has never resulted in termination, he has since learned that it has created work problems. He is under the impression that he was passed up for promotions due to this and was the first person laid off due to his previous irritable expressions. The Veteran reported passive suicidal ideation with no historical or current plans or intent. The Veteran reported seeing shadows in his peripheral vision consistent with a trauma-related disorder. The Veteran also reported passive homicidal ideation when enraged. He quickly leaves and calms himself without continued thoughts. The Veteran the diagnostic criteria for a PTSD diagnosis. His symptoms included depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a work like setting (Record 11/07/2019). 

A VA opinion in November 2019 is reported in pre-printed form with check boxes to indicate the effects on employment. The examiner checked boxes indicating that the Veteran's mental disability results in "significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others." The next checked box indicates that his "sleep is so disrupted that s/he is usually fatigued at work, making concentration and focus on work assignments difficult." The next checked box states that he "has other mental health problems or symptoms, e.g., panic attacks, irritability, suspiciousness, etc., that interfere significantly with the ability to work." The description of this last box provided by the examiner is that the Veteran's irritability has impacted his work progression, as noted in the report." (referring to the mental disorders examination of November 2019) (Record 11/07/2019).

In a letter submitted by his son, the Veteran was described as "very sick." His son asserts that he "returned from Vietnam crazy." He reported that the Veteran could not keep a job, that their family was never financially stable, and that he cannot work because of his disagreeability (Record 04/10/2019). 

The Veteran's wife also reported on the Veteran's temper and the effect that has on their family relationships. She reported that he had 15 or 16 different jobs and lost his job due to his inability to maintain composure in a meeting (Record 04/10/2019). 

The Veteran's VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) reveals that the Veteran worked a 40-hour week from January 2003 to February 2005 as an account manager, earning at most, $3,750 per month. He worked a 40-hour week from February 2005 to August 2005 as an account manager, earning at most, $5,000 per month. He worked a 40-hour week from April 2007 to October 2009 as an expeditor earning at most $3,750 per week. He worked a 40-hour week from August 2010 to November 2016 as a buyer, earning at most, $3,783 per month. He reported a 4-year college degree, and that he quit working due to PTSD and overwhelming stress (Record 01/23/2018). 

After a review of all of the evidence, the Board finds that the criteria for referral for extraschedular consideration of TDIU are not met. 

There is certainly evidence of a negative effect on employability of the service-connected mental disability. However, evidence of occupational limitations is present in every case in which an evaluation has been assigned for a service-connected disability. See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages "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" and "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"); see also Van Hoose, 4 Vet. App. at 363 ("A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment"). If the Court were to accept the [appellant's] argument that evidence of occupational limitations due to a service connected disability necessarily constitutes evidence of unemployability, then entitlement to TDIU would be reasonably raised in every case where the [appellant] challenged the assigned evaluation. That view is not borne out by the caselaw, which requires that the record contain evidence of unemployability to reasonably raise the issue of entitlement to TDIU. See Comer, 552 F.3d at 1367; Roberson, 251 F.3d at 1384.

Here, the Veteran has had an interrupted work history over the last decade of his career. However, he spent the majority of this period fully employed (40 hours per week) in what appears to be substantially gainful employment. While he was laid off by a manufacturer, he was subsequently allowed to return, and he continued working there for six years. The information recorded in December 2017 indicates that he stopped working due to retirement. The Board finds that the Veteran's work history does not reasonably raise the question of entitlement to TDIU on an extraschedular basis. In Faust v. West, 13 Vet. App. 342 (2000), the Veterans Court held that where an individual became employed at a substantially gainful occupation, irrespective of the number of hours or days that individual actually works, and without regard to his earned annual income prior to his having been awarded TDIU, such employment constitutes, as a matter of law, a substantially gainful occupation and thus "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1). 

As noted above, the criteria for determining whether an individual is unable to secure or follow a substantially gainful occupation include a subjective standard. In this case, the Veteran's considerable history of substantially gainful employment is probative evidence that he was capable of such employment. Accordingly, the Board concludes that a remand for referral of that question is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Cramp

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.