Citation Nr: 21032575 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-16 398 DATE: May 27, 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 render him unable to secure or follow a substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38U.S.C. §§1155, 5107; 38C.F.R. §§3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1963 to January 1965. In September 2019, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. In November 2019, the Board remanded the case for further evidentiary development. In April 2020, the Board issued a decision that, in pertinent part, denied entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By January 2021 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating the April 2020 Board decision in part and remanding the case to the Board for action consistent with the JMPR. Entitlement to a TDIU. The Veteran contends he is unable to secure or maintain substantially gainful employment due to his service-connected disabilities, to primarily include his posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), and lumbosacral spine disability. In the December 2020 JMPR, the parties agreed that remand was warranted because the Board used an incorrect standard for adjudicating the appeal for TDIU and that the correct standard was whether the Veteran's service-connected disabilities prevented him from obtaining or maintaining substantial gainful employment. The parties further noted that the Board failed to address the Veteran's service-connected symptomology and whether it prevented him from substantially gainful employment. The parties agreed the Board did not address the Veteran's psychiatric symptoms such as irritability, sleep impairment, mild memory loss, and concentration problems, which where endorsed during VA examinations in March 2014, March 2017, and November 2019; and that the Board did not address the March 2014 and March 2017 VA examiner's reports that the Veteran's back disability prevented prolonged standing or walking. The parties indicated that on remand, the Board should readjudicate the claim for a TDIU consistent with Ray v. Wilkie, 31 Vet. App. 58 (2019), with consideration of all of this service-connected symptomatology and his educational and occupational background. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is 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, such disability shall be ratable as 60 percent or more and 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. 38C.F.R. §4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. The Board must consider certain factors when raised by the evidence of record when assessing whether a veteran is capable of substantially gainful employment, including addressing the veteran's education, occupational history, skill level, and training, his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching. The Board must determine "whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue," and whether the veteran has the mental ability to perform the activities required by his occupation, such as "limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity." Ray v. Wilkie, supra. Further, the Court has also held that the proper inquiry is whether service-connected disabilities alone, or in combination, are sufficiently incapacitating as to render a veteran unemployable. Pratt v. Derwinski, 3 Vet. App. 269 (1992). Review of the record shows that service connection has been established for the Veteran's PTSD, rated as 70 percent disabling; lumbosacral condition, rated as 20 percent disabling; TBI with headaches and tinnitus, with both rated as 10 percent disabling; and appendectomy, rated as 0 percent disabling. He has a combined service-connected disability rating of 80 percent; thus, he meets the minimum percentage requirements for an award of a schedular TDIU. 38 C.F.R. § 4.16(a). On a VA PTSD disability benefits questionnaire (DBQ) examination in March 2014, the Veteran reported he was retired and last employed in 1991 as a police sheriff deputy. On examination, he reported difficulty with sleep, nightmares, intrusive thoughts, anxiety, irritability, difficulty relating to others, periods of depressed mood, decreased energy, and decreased motivation, and problems with memory and concentration. It was noted that his PTSD symptoms included chronic sleep impairment, mild memory loss, difficulty establish and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner opined that the Veteran had moderate occupational impairment due to PTSD. On a VA back condition DBQ in March 2014, the diagnoses included lumbosacral strain and osteoarthritis. The Veteran reported that on flare-ups he had difficulty dressing and putting on shoes due to pain with bending and twisting, and trouble doing routine household chores. Examination revealed he had less movement than normal in the lumbar spine, and pain on movement. The examiner opined that the Veteran's thoracolumbar spine had no impact on his ability to work. Received from the Veteran in August 2014 was a formal claim (VA Form 21-8940) for a TDIU rating, in which he reported that PTSD, head injury, and back injury, prevented him from securing or following any substantially gainful occupation. He reported working in the county sheriff's office from 1982 and 1991, and that in April 1991, he became too disabled to work. He had not tried to obtain employment since he became too disabled to work. For education, he indicated he had completed one year of college and had training as a police officer after that. Received in October 2014 was a completed VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) from the Veteran's former employer, Darlington County Sheriff Department, wherein it was noted that the Veteran worked for them from 1980 to 1991, and retired under the South Carolina police retirement disability. On a December 2014 VA TBI DBQ, the Veteran reported working for 25 years until he retired from the police force because of eye complaints. His TBI related impairment included mild memory loss. The examiner opined that the Veteran's TBI residuals did not impact his ability to work, noting that he had post concussive headaches following his head injury, that had lessened over the years, and that at present he had no neurological deficits related to TBI. In a December 2014 addendum report, a VA provider opined that the Veteran had moderate impairment in occupational and social functioning, and that it was less likely as not, based exclusively on his PTSD, that he was unable to secure or maintain substantially gainful employment of either an active or sedentary nature. In a December 2014 opinion, a VA examiner opined that the Veteran's back condition should not prevent him from performing physical or sedentary labor as the range of motion was "preserved to a degree which would restrict him from performing most tasks". It appears that there is a typographical error in the latter part of the opinion, and that the part should be read as "preserved to a degree which would not restrict him from performing most tasks". In a March 2017 note, Dr. J.S. indicated that the Veteran was unable to work because of his PTSD, but provided no rationale or explanation for the opinion. In March 2017, a VA examiner opined that the Veteran's lumbar spine condition impacted his ability to work, explaining that any prolonged standing or walking would limit functional ability in the occupational setting. The examiner also noted, however, that it was difficult to say how much limitation was due to his back because he recently had a stroke and had deficits on the right side, including obvious weakness. On a VA examination in March 2017, the examiner noted that the Veteran's TBI contributed mildly and PTSD contributed moderately to his occupational and impairment. The Veteran's symptoms related to PTSD included problems with concentration, irritable behavior and angry outbursts, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. On examination, the Veteran reported he lived with his wife and adult son, spent time at home, and had difficulty walking due to the cerebrovascular accident (CVA). He reported watching television, reading, and attending church, and that he had friends. The examiner opined that the Veteran's PTSD symptoms alone would not prevent gainful employment in this Veteran with multiple medical problems. VA treatment records show that in in June 2018, the Veteran's short-term memory was assessed as "okay". He was seen in the mental health clinic for follow up and he denied having nightmares but was occasional jumpy at night, he had sleep problems, but was not using his CPAP machine. He denied hypervigilance, and on examination it was noted that the Veteran's short/long term memory were intact, he had good concentration and attention, he had good insight and judgment, his thinking was intact, and irritability/anger was noted to be "absent". In December 2018, the Veteran denied suicidal ideation and hallucinations. His mental status examination was essentially normal, his mood was variable and labile, and he had a mildly constricted affect. The examiner indicated that if the Veteran had PTSD it was not very disabling; the diagnoses included anxiety disorder, rule out PTSD. In September 2019, the Veteran testified before the Board that he experienced hallucinations several times a week. His wife testified that sometimes the Veteran did not know where he was at or what day it was, and that it was getting worse. The Veteran testified that his PTSD prevented him from taking care of daily hygiene. He reported he had a person come by every day to help him take a bath and dress, but that if that person did not come, he would not be able to do this due to his psychiatric symptom. He testified he had constant periods of frustrations and anger, and that he did not go out of the house except to go to church and doctor appointments. He also testified he left his last job (in the early 1990s) due to PTSD and forgetting things. VA treatment records show that in September 2019, the Veteran denied hallucinations. His diagnoses were listed as anxiety disorder and rule out PTSD. On a VA examination in November 2019, it was noted that the Veteran retired in 1991 as a deputy sheriff, but had not been able to do anything since then due to a left CVA 3.5 years ago. On examination, the Veteran reported problems with sleep and nightmares and a fear of dying related to drowning stemming from a training exercise during service. He was sometimes irritable and took his frustrations out on his wife. His PTSD symptoms included depressed mood, anxiety, chronic sleep impairment, and mild memory loss. It was noted that he endorsed no other symptoms, to include hallucinations, even when prompted. On examination, the Veteran's speech was clear, cognition appeared to be at baseline, and thinking was linear with no evidence of psychosis. His mood was stable and appropriate, and affect was congruent. The examiner opined that the Veteran's limitations due to PTSD and major depressive disorder were relatively mild such that he may experience occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks when his mood was low. The examiner noted that when irritable, the Veteran's social relationships might be intermittently negatively impacted, but that, in general, he functioned satisfactorily, with normal routine behavior, self-care, and social relationships. In a statement submitted in January 2020, the Veteran reported he was currently receiving aid and attendance, was not able to perform selfcare or occupational duties, and that his social relationships were limited. He contended that in the recent VA examination, the examiner did not portray the complete extent of his inability to work and have social interactions due to his PTSD. Regarding the Veteran's specific education, training, skill, and experience, the record reflects he completed high school and had one year of college with additional training from 1982-1991 as a Darlington County police officer. He retired in 1991 under the state's police retirement disability, however the exact nature of that disability has not been disclosed. The record further shows that the Veteran had no education or training since he retired in 1991. The Veteran's retirement from the police department after working 18 years, therefore, reflects that during that time, he at least had the physical ability to perform police duties and mental ability to complete tasks and follow instructions. The Board acknowledges the Veteran's reports that he left his job as a police officer, due to PTSD, memory problems, forgetting things, and trouble concentrating, but it is noted that he has also reported he retired from the police force because of eye complaints. Moreover, his TBI was noted to be productive of mild memory loss. While VA examinations in 2014, 2017, and 2019, note that the Veteran experiences problems with irritability, sleep impairment, mild memory loss, and concentration problems, all of which impact his ability to secure or follow substantially gainful employment, review of the record also includes VA treatment records which show that he has on occasions denied having problems with irritability and concentration. More recently, his memory was assessed as intact, he denied nightmares, and his sleep problems were attributed to other causes. Moreover, the Veteran maintains relationships with family and friends and attends church, and while he has testified that he has hallucinations, contemporaneous VA treatment records show otherwise. The Board observes that statements made to physicians and other healthcare providers for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Regarding the Veteran's physical abilities, the Board notes that with regard to visual or audio limitations, there is no indication in the record, and the Veteran has not alleged, that his service-connected tinnitus, headaches, or appendectomy cause any functional impairment. With regard to his service-connected lumbosacral disability, the record shows he experiences limitations on bending and twisting during flare-ups, and exhibited limited range of motion, as well as limitations on any prolonged standing or walking. However, VA examinations also show that he does retain full extension and flexion limited to less than half of full flexion, and at least some of his back impairment is attributed to non-service-connected medical issues. Additionally, in December 2014, a VA examiner opined that the Veteran's back condition should not prevent him from performing physical or sedentary labor as the range of motion was preserved to a degree which would not restrict him from performing most tasks. While the Board acknowledges the Veteran's lay statements that his PTSD and lumbosacral symptoms primarily affect his ability to function, the record does not reflect that the Veteran is otherwise prevented from engaging in other occupations, including sedentary employment. Although the Veteran's lay statements and testimony suggests that he retired/stopped working primarily due to his service-connected disabilities, the Board finds that his assertions are not entirely consistent with other evidence of record, including his reports that he retired due to eye complaints, and that he had not been able to do anything since he retired due to the CVA he sustained in 2015. The Veteran may be unable to engage in substantially gainful employment, but the record does not demonstrate that this was solely the result of service-connected disabilities. While he has no doubt experienced significant impairment from his service-connected PTSD and lumbosacral disability, this was not shown to be so impactful that he was unable to engage in all forms of substantially gainful employment. It is further noted that the Veteran's CVA is not service-connected such that any disability associated with that condition may not be considered in this determination. Accordingly, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful employment consistent with his education and industrial background. In reaching this determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38U.S.C. §5107(b); Gilbert v. Derwinski,1 Vet. App. 49(1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.