Citation Nr: 21029370 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 10-44 028 DATE: May 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The competent and persuasive evidence does not establish that the Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU 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 served on active duty from March 1979 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Specifically, entitlement to a TDIU was raised in conjunction with the notice of disagreement received in response to the initial rating assigned for service-connected disability in the October 2010 rating decision, which granted entitlement to service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent initial evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2011, the Veteran testified before a Veterans Law Judge (VLJ) who has since retired from the Board. A transcript of the hearing is associated with the claims file. A March 2021 letter notified the Veteran that the VLJ who conducted his hearing is no longer at the Board, and he was asked to respond within 30 days indicating whether he would like a new hearing. VA has received no response to date. Therefore, there is no hearing request pending at this time. This claim was remanded in April 2013, May 2015, and February 2017 for further development. In March 2018 the Board denied entitlement to a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By way of a November 2018 Order, the Court vacated the Board's decision, with remand for adjudication consistent with the JMR. The appeal was remanded in May 2019 for further development. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a TDIU is denied. The Veteran's claim for TDIU stems from his NOD to the October 2010 rating decision that granted service connection and assigned an initial rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On April 17, 2020, VA received the Veteran's VA Form 21-8940. He asserts that his service-connected PTSD, bilateral knee, and feet disabilities render him unable to secure and follow substantially gainful employment. The Veteran states in a May 2020 statement that he last worked in September 2015 due to his PTSD and other health issues. A TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. In cases where the schedular criteria are not met, an extraschedular rating is for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321, 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service (Director) for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. 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 when arriving at this conclusion; factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. Period Prior to November 23, 2015 Prior to November 23, 2015, the Veteran's service-connected disabilities were: PTSD with major depressive disorder (MDD) and alcohol use disorder, in remission (rated at 30 percent from July 21, 2009); left knee degenerative arthritis, chondromalacia and meniscal tear (rated at 10 percent from February 3, 2009); right knee chondromalacia (rated 10 percent from February 3, 2009); and onychomycosis with tinea pedis of both feet (rated 30 percent from August 6, 2009, and noncompensable from February 1, 2013). As it relates to this appeal for TDIU, prior to November 23, 2015, the Veteran had a combined disability rating of 20 percent from February 3, 2009; 50 percent from July 21, 2009; 60 percent from August 6, 2009; and 50 percent from February 1, 2013. The Veteran does not meet the schedular criteria for a TDIU per 38 C.F.R. § 4.16(a) for the appeal period prior to November 23, 2015. Nevertheless, a referral to the Director for extraschedular TDIU consideration is not warranted. This is because the evidence of record fails to reflect that the Veteran's service-connected disabilities rendered him unemployable. The evidence of record further reflects that the Veteran did not fully report his employment history as he was substantially and gainfully employed with no more than brief periods of unemployment until October 2015. Turning to the relevant evidence of record, in April 2010, the Social Security Administration (SSA) determined that, based on a review of the Veteran's health problems, he did not qualify for SSA disability benefits because he was not disabled under SSA rules. A Physical Residual Functional Capacity Assessment conducted in conjunction with his SSA claim at that time concluded that the Veteran appeared capable of at least a light residual functional capacity, taking his pain into account, and that his statement that he could only walk 1/2 block was not supported by the objective findings. A Mental Residual Functional Capacity Assessment also conducted at that time found that with regard to function, the Veteran had no problems with personal cares and did basic household cleaning and shopping. He used public transportation to get around, and his oral and written communication were adequate. He had not exhibited any mood problems in his case manager's office, and related well to his case manager and other agency staff. Although the Veteran was noted to have moderate limitations in his social functioning, as he exhibited a passive/aggressive personality and may lose his temper, he exhibited only moderate limitations in his ability to concentrate, persist, and maintain pace. He could sustain the basic mental demands of unskilled work. Although his mental allegations were deemed partially credible, the reviewer found that the Veteran's memory and concentration were not as poor as the Veteran reported. A May 2010 VA PTSD examination report indicated that the Veteran worked on a full-time basis for his own construction business for 12 to 13 hours per day from 1989 until 2005 but stopped working approximately 2 years prior because of his knee condition. He reported that he was currently working odd jobs, earning a small income and receiving financial assistance from his father. The examiner assigned the Veteran a Global Assessment of Functioning (GAF) score of 65, indicative of merely some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. A June 2010 VA joints examination report indicated that the Veteran's knees had not caused any difficulty with working since he had not been employed for a number of years; the examiner further commented that the Veteran was capable of self-care, although he said he experienced pain while trying to tie his shoes. A September 2010 VA PTSD examination assigned the Veteran a GAF score of 58 to 61, indicative, at worst, of merely moderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). The examiner concluded that as a result of his PTSD symptoms, the Veteran experienced an impairment in his ability to function socially with peers, coworkers and supervisors as a result of his emotional reactivity and anxiety, making it unlikely, had he not been self-employed, to be able to maintain gainful employment as a result of having difficulty interacting with other individuals in a socially appropriate manner. The examiner indicated that the Veteran had experienced a worsening of symptoms related to his mental health diagnoses since he ceased abusing substances and was no longer distracting himself and numbing himself with alcohol and other drugs. In summary, the examiner concluded that the Veteran's PTSD signs and symptoms, along with secondary symptoms of depression, resulted in deficiencies in interactions in the aforementioned areas relating to work, school, family relations, and mood. At the time of this examination, the Veteran was unemployed and had last worked doing odd jobs. The Veteran reported that the longest time he had spent at any one job was when he worked from 1989 to 2005 for his own construction business, and attributed his unemployment to symptoms of PTSD, for which he previously self-medicated with alcohol, cocaine, and cannabis. In an August 2011 mental health treatment note, the Veteran reported working for Adult Builds, conducting carpentry training for recently released prisoners, and more recently performing finish carpentry work for a private company. A June 2013 VA skin examination report indicated that his onychomycosis did not impact his ability to work. Similarly, a June 2013 VA knee examination report indicated that his knee disabilities did not impact his ability to work. The examiner explained that it was doubtful the Veteran had any true strength or range of motion deficits based on observation while he was walking or sitting. For example, the examiner indicated that the Veteran could not straighten either knee on examination but then exhibited no difficulty straightening his knees while walking. The examiner concluded that it was unlikely that there was any significant limitation of either knee. In April 2020, the Veteran finally submitted a VA Form 21-8940. On this form, he reported that he had worked 32 hours from May 2010 to February 2013 as a carpentry instructor/supervisor and earned $2,458 per month. He also reported working 20 to 30 hours from March 2013 to September 2015 as a carpentry instructor, earning $2,068 per month. In a June 2020 VA Form 21-4192, one of the Veteran's former employers reported his dates of employment as April 2010 to September 2013. The form confirmed the Veteran's role as supervisor and reported that he worked 40 hours per week. Based on the evidence related to prior employment, education, and earnings provided from the Veteran, the record demonstrates that he had substantial gainful employment for most of the appeal period under review -which is the period prior to November 23, 2015. Indeed, the Board has calculated the Veteran's earnings for the period in question and based on what he has reported, his earnings exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. The evidence further reflects that the Veteran was working in positions consistent with his education, training, and work experience. There is no indication that he was in a protected work environment or had marginal employment due to his service-connected disabilities. Thus, for the period prior to November 23, 2015, a referral to the Director for extraschedular consideration is not warranted and neither is a TDIU on a schedular basis. From November 23, 2015 to April 9, 2019 Beginning November 23, 2015, the Veteran's service-connected disabilities were as shown above; however, PTSD with MDD and alcohol use disorder, in remission was increased to 70 percent. His combined rating was 80 percent effective November 23, 2015. Therefore, he met the schedular requirement for TDIU between November 23, 2015 and April 9, 2019. [Beginning on April 9, 2019, the Veteran's PTSD with MDD and alcohol use disorder, was increased to 100 percent. His combined rating from that time was 100 percent.] For the reasons below, entitlement to a TDIU during between November 23, 2015 and April 9, 2019 is not warranted. As discussed above, a TDIU cannot be awarded when the claimant is gainfully employed. At the outset, the Board notes that the record contains inconsistencies between the Veteran's self-report during VA examinations and his VA medical appointments regarding his employment history. In piecing his various VA medical appointments together, the evidence suggests that while the Veteran may have experienced periods of unemployment, he was generally able to obtain and sustain gainful employment prior to April 2019. At a December 2015 VA skin examination, the Veteran reported unemployment for three months. The examination report indicated that none of the Veteran's diagnosed skin conditions impacted his ability to work. At the Veteran's January 2016 VA PTSD examination, he reported working as a carpentry instructor for 2.5 years, which aligns with the Veteran's report of unemployment from his December 2015 VA skin examination. It is noted that although the Veteran reported quitting due to his foot condition, which has been found to not have a functional impact on his employment ability, the Veteran also reported that he lost his job and was hopeful that he would soon regain employment as he had had a job interview a few days earlier. Which demonstrates that his service-connected foot disability and other service-connected disabilities for that matter, were not of a severity to prevent him for obtaining or sustaining substantially gainful employment. VA treatment records suggest that he was working more in May 2016. In November 2016 the Veteran was working but not in construction as he had experienced a bad fall earlier that summer, which injured both of his hands; the hand injury is not service-connected. In December 2016, the Veteran reported working at a carpentry school as an instructor and indicated that he was awaiting payment for jobs he and his crew had completed. A January 2017 mental health note reflects that the Veteran was employed. In addition to owning a construction company, the Veteran indicated that he and his wife worked together at his carpentry school. An April 2017 treatment note reiterates that the Veteran owned a carpentry school and construction business. In September 2017, the Veteran was still working, as he reported stress related to his construction business; multiple jobs going and upcoming classes to teach. His employment status was reported as 'master carpenter." In January 2018, the Veteran reported at his VA examination for skin disease that he closed his carpentry school six months earlier. A January 2019 VA cardiology note indicates that the Veteran was working as a teacher and construction site manager. In March 2019, the Veteran was seen for complaints of chest pain that started while at work; he was working in construction. In April 2019 a VA cardiology note reported that the Veteran was at work and had sharp chest pains while talking to a co-worker and went to the ER; the chest pain was not related to service. Although the Veteran has not provided information regarding his income during this period, the evidence suggests that he was gainfully employed prior to April 9, 2019. Not only that, the evidence shows that even if the Veteran had periods of unemployment, he was capable of securing and maintaining substantially gainful employment, as these periods of unemployment (if any) were seemingly associated with nonservice-connected conditions. The Veteran reports in his April 2020 VA Form 21-8940 that he completed four years of high school and two years of college. A May 2010 VA examination indicates that the Veteran reported obtaining a bachelor's degree in general education prior to his discharge from the military. The evidence as discussed above shows that the Veteran also has a background in teaching high school students and adults. The Veteran's DD 214 shows his military specialty was indirect fire infantryman. With regard to economic considerations, the record shows that following his discharge from service, the Veteran taught at a high school for one semester. He then obtained his certificate in carpentry and worked for several years in this field. He subsequently became self-employed operating his construction business full-time and carpentry school. The Veteran also worked as an instructor and supervisor in carpentry, and in construction. Remember, the question here is whether the Veteran was able to secure and follow substantially gainful employment prior April 9, 2019, performing a job with earnings that were above the poverty threshold. Based on the overall evidence, the answer is, yes. With regard to non-economic consideration such as his physical disabilities, the Veteran asserts that his service-connected bilateral knee disability, a skin disability in his feet, and his PTSD renders him unable to secure and follow substantial gainful employment. However, the evidence of record indicates that none of these disabilities whether alone or in combination preclude the Veteran from obtaining and maintaining substantially gainful employment consistent with his work history, training, education, and skills. The Veteran underwent several VA examinations for his service-connected disabilities. The Board considered the physical ability-factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. 58. The Veteran reports that his knees and skin disability of the feet preclude him preclude him from gainful employment. Specifically, he indicates that he is limited in kneeling, squatting, walking, and standing. However, the Board finds that these reports have not previously hindered his ability to work, particularly in his chosen field of carpentry or construction. Rather, treatment records show that when the Veteran stopped working in carpentry, it was due to his hand injury which was due to a fall he sustained. Throughout the course of this entire appeal, the Veteran has maintained some form of employment in either carpentry or construction be it physically performing the tasks or instructing others how to perform these tasks. Thus, to the extent the Veteran would argue that his knees and or skin disability of the feet preclude gainful employment, the evidence of record diminishes the persuasiveness of that contention. This is because carpentry and construction work reasonably involve bending, sitting, standing, walking, climbing, grasping, and reaching. Additionally, an August 2020 VA treatment note reports that the Veteran is working as a contractor. The Board also considered the mental ability-factors noted in Ray, to include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. 58. However, the competent and contemporaneous evidence of record does not demonstrate that the Veteran suffers with memory loss or concentration difficulties so severe that would preclude him from working particularly in his field of experience such as carpentry or construction. His January 2016 VA PTSD examination did not report any findings or difficulties with the Veteran's mental ability-factors. In January 2019, the Veteran was working as a construction site manager and teaching. It is difficult to reconcile that the Veteran suffered with issues such as memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity or that they were so severe that he was unable to work; particularly when he was working as a manager. Additionally, the Veteran's hospitalization in March 2019 for chest pain and April 2019 were not associated with a service-connected disability. Thus, based on the evidence, prior to April 9, 2019, entitlement to a TDIU remains not warranted. Period from April 9, 2019 On April 9, 2019 the Veteran was awarded a total rating for PTSD with MDD. The Board is mindful that a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s), including whether the award of TDIU would provide entitlement to SMC. See AB v. Brown, 6 Vet. App. 35 (1993); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (Entitlement to SMC is an "inferred issue" in the context of an increased rating claim); see Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). SMC may be warranted pursuant to 38 U.S.C. § 1114(s) if a Veteran has a service-connected disability rated as 100 percent disabling and (1) has an additional service-connected disability or disabilities independently rated at 60 percent or more, or (2) by reason of such service-connected disability or disabilities is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In Bradley, the Court held that a TDIU based on a single disability will satisfy the statutory requirement of a single disability with a total rating for the purposes of awarding SMC. In Buie, the Court held that an award of TDIU based on combined effects for multiple disabilities cannot be used to satisfy the requirement of a single disability rated as totally disabling. However, VA's duty to maximize benefits requires VA to assess all of a claimant's disabilities, regardless of the order in which they were service connected, to determine whether any combination of disabilities establishes SMC under 38 U.S.C. § 1114. The Board finds that for the period beginning April 9, 2019, the exceptions provided in Bradley and Buie do not apply. The Veteran does not meet the schedular criteria for SMC. From April 9, 2019, the Veteran's service-connected disabilities were: PTSD with MDD and alcohol use disorder, in remission (100 percent from April 9, 2019); left knee degenerative arthritis, chondromalacia and meniscal tear (rated at 10 percent from February 3, 2009); right knee chondromalacia (rated 10 percent from February 3, 2009); and onychomycosis with tinea pedis of both feet (rated noncompensable from February 1, 2013). Although the Veteran now has a service-connected disability rated as 100 percent disabling, PTSD with MDD and alcohol use disorder, he does not have an additional service-connected disability or disabilities independently rated at 60 percent. Additionally, there is no evidence indicating that the Veteran's service-connected disability or disabilities render him permanently housebound. Based on these findings, an award for SMC would not be warranted, and thus TDIU from April 9, 2019 is rendered moot. In conclusion, entitlement to a TDIU for the entire period on appeal is not warranted. The evidence fails to show that the Veteran's service-connected PTSD and other disabilities alone or combined would reasonably preclude substantially gainful employment that is consistent with his education and prior work history. The Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim. As such, that doctrine is not applicable. Entitlement to TDIU is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, Associate 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.