Citation Nr: 21030683 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-47 258 DATE: May 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude her from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1975 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2019. A transcript of the hearing has been associated with the Veteran's VA claims file. In September 2019, the Board remanded the Veteran's claim for additional development. The case is once again before the Board. Entitlement to a TDIU Laws and Regulations VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. 38 C.F.R. § 4.16(a). VA's policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating. Analysis The Veteran contends that her service-connected posttraumatic stress disorder (PTSD) has caused a significant disturbance in her life and she is unable to obtain and maintain substantially gainful employment due to the way PTSD interrupts her life. See January 2017 VA 646. More specifically, she contends that she experiences manias that go from productive to paralytic depression. Id. She further contend she is agoraphobic which prohibits her from leaving the house and seeking employment. Id. After careful review, the Board finds that TDIU is not warranted because the Veteran's service-connected disability has not prevented her from securing or following a substantially gainful occupation consistent with her education and occupational experience. The Veteran has been granted service connection for one disability, PTSD; depressive disorder, not otherwise specified (previously rated as bipolar disorder), evaluated as 50 percent disabling from March 2, 2010 through September 28, 2012, and 70 percent disabling thereafter. Thus, she meets the percentage requirements for a schedular TDIU as of September 28, 2012. 38 C.F.R. § 4.16(a). The evidence shows the Veteran completed four years of high school and two years of college. See June 2009 Social Security Administration (SSA) Disability Report. She has reported holding jobs in tourism and hospitality; administrative and secretarial roles, and other miscellaneous jobs including face painting and babysitting. See October 2019 VA 21-8940. She stated she has no memory of the dates of her past employment. Id. In her February 2014 VA 21-8940 she noted that she last worked full time as an event planner in October 2007. Regarding the medical evidence of record, the Board notes the Veteran has been provided multiple VA examinations for her service-connected PTSD which address the functional impact caused by PTSD. In June 2010, the VA received buddy statements from the Veteran's cousin H.R., and long-time friend, D.B. H.R. who stated that the Veteran's extreme nervousness and depression make it difficult for her to leave her home or hold a job. D.B. stated that the Veteran has been unable to successfully sustain employment for any length of time in a traditional employment setting and she is unable to keep a job for longer than a few weeks. On the August 2010 initial PTSD VA examination, the Veteran reported she was unemployed because she cannot concentrate well enough to do her job on a sustained basis. She also reported she does not interact well with other people. On February 2013 PTSD VA examination, the examiner found that that the Veteran's PTSD symptoms result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In February 2013 the Veteran submitted additional buddy statements in support of her claim. In a second buddy statement, her long-time friend D.B. stated that she does not believe the Veteran will be able to work. She stated her inability to focus and her emotional instability are serious concerns for any employer. J.K., the Veteran's neighbor of three years at the time stated that the Veteran can be friendly, upbeat, and high functioning. She also stated that she cries often and seems mostly depressed. The Veteran submitted a positive nexus statement from a VA psychiatrist in February 2014. The VA psychiatrist opined the Veteran's psychiatric symptoms make it impossible for her to engage in substantial gainful activity. On November 2014 PTSD VA examination the VA psychologist found that that the Veteran's PTSD symptoms result in occupational and social impairment with reduced reliability and productivity. During the exam the Veteran reported she had not worked since the last VA exam. She reported she was last employed as a legal researcher for approximately 9 years and was laid off in 2007 or 2008. She reported several temporary and short-term positions from which she was either fired or quit. She reported that she frequently experienced interpersonal difficulties on the job, such as not getting along well with others and reported her performance was often inconsistent due to manic episodes and subsequent depression. At the time of the exam, VA psychologist noted the Veteran's symptoms related to PTSD and bipolar disorder appear to be well managed with medication and limited contacted with others. She noted the Veteran's reported history of manic episodes is consistent with a diagnosis of bipolar disorder in remission. As for the functional impact due to PTSD, the VA psychologist opined that is not possible to conclude the Veteran would be unable to secure and maintain substantially gainful employment solely due to PTSD and bipolar disorder given the diverse range of employment opportunities and settings that exist. She opined that PTSD may cause occupational problems for the Veteran in the future in terms of causing increased irritability or diminished concentration, noting that irritability is more likely related to the bipolar disorder but it is at least as likely as not exacerbated by the PTSD. She stated that irritability in the occupational domain, whether related to bipolar disorder or PTSD, could potentially be mitigated in a loosely supervised position requiring little interaction with the public, in both physical and sedentary employment settings. On July 2016 PTSD disability benefits questionnaire (DBQ) the VA psychologist found that that the Veteran's PTSD symptoms result in occupational and social impairment with reduced reliability and productivity. During the interview the Veteran reported she has not worked since 2009 when she was working in legal research; she also indicated that she has no idea when she last worked or what type of work she was doing; she stated she used to volunteer in the community but stopped; she indicated she has done face painting for 40 years but only does it occasionally. When asked if she has applied for any other positions, she replied she can't, and she won't. She stated she cannot stand for long periods of time and cannot deal with people on a regular basis. During the interview, the Veteran also reported that she had recently opened an online store. She described being highly productive and excited about the store but noted that she does not expect to sell enough to make a living. Regarding the Veteran's ability to function in an occupational environment, the VA psychologist opined it is likely that identified symptoms of bipolar disorder and PTSD would limit the Veteran's ability to maintain employment in particular work settings. The VA psychologist noted difficulties with interpersonal detachment, concentration/focus, irritability, and emotional liability could be functionally impairing. She stated that these symptoms could moderately hinder her ability to work in environments that necessitates extensive interpersonal interaction on a daily basis, such as direct customer service, require a high degree of concentration for long periods of time, require her to work cooperatively and effectively with multiple co-workers, or do not allow her to work at her own reasonable pace. During her June 2019 Board hearing, the Veteran testified that she has tried to obtain gainful employment. She stated she tried to get a job in tourism but there is a lot less availability. She testified that she was able to partially work for home with her last job. She testified that she cannot do everyday activities due to the medication she takes. In September 2019, the Board remanded the Veteran's claim for a new examination to determine the current symptoms, level of severity, and functional impairment associated with PTSD. The examiner was asked to comment on functional impairment resulting from the Veteran's PTSD or state if a symptom can clearly be attributed solely to a psychiatric disorder other than PTSD. On November 2019 PTSD DBQ the VA psychologist found that that the Veteran's PTSD symptoms result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. At the time of the exam the Veteran reported she is unemployable because her trauma resulted in inability to trust individuals, misperceive people and their actions, and react in an extreme manner. The VA psychologist noted it was possible to differentiate between bipolar disorder symptoms and PTSD symptoms. She stated bipolar disorder results in severe highs and lows in mood and associated symptoms, which are separate and distinct from PTSD symptoms of anxiety, depression, and hypervigilance. However, the VA psychologist also stated both PTSD and bipolar disorder both likely significantly negatively impact social and occupational functioning. She noted she is unable to adequately differentiate which symptoms are causing the challenges experienced by the Veteran. Regarding employability, the VA psychologist opined that she might be able to be successful in a job in which she is alone and performing rote activities. On December 2019 PTSD VA examination the VA psychologist found that that the Veteran's PTSD symptoms result in occupational and social impairment with reduced reliability and productivity. The Veteran reported she has not had any paid employment since the last exam. She stated she no longer did face painting because it was hot and tiring and she did not have the temperament to be around children. She reported that she used to sell jewelry through an online store but stopped because she received a proposal to reduce her VA disability benefits which she believed was due to the income generated from the online store. Although the Veteran has difficulty establishing and maintaining effective social and work relationships as well as difficulty with irritability and depression, the record does not indicate she is unable to work in an isolated work environment with minimal personal interactions consistent with her education level and work experience. In this regard, the Board notes that the Veteran previously sold jewelry in an online store (an isolated work environment) but stopped because she believed that VA was going to reduce her benefits based on excessive income and not as a result of her service-connected disability. The Board acknowledges the February 2014 positive nexus opinion submitted by a VA psychiatrist. However, the opinion contains no supporting rationale and therefore is entitled no probative weight for adjudicative purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges that the Veteran he has been in receipt of SSA benefits. However, SSA records list the Veteran's primary disability as fractures of the lower limb and secondary disability as essential hypertension, neither of which she has been awarded service-connection for. In determining whether the Veteran is entitled to a TDIU, non-service-connected disabilities may not be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a) (2013). The Board recognizes that the Veteran's service-connected PTSD may result in some occupational impairment and/or inconvenience in a workplace; however, she is being compensated for those limitations in the award of a 70 percent schedular rating. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from service-connected disabilities and the residual conditions in civilian occupations. (Continued on the next page) In sum, the evidence deemed most probative by the Board establishes that the Veteran's service-connected PTSD symptoms have not rendered her unable to secure and follow a substantially gainful occupation at any time during the appeal period. Thus, entitlement to a TDIU is not warranted, and the claim must be denied. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.