Citation Nr: 21040514 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 16-44 325 DATE: July 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities have not been shown to prevent him from securing and following 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, 4.15, 4.16, 4.18, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded the appeal to the RO for additional development. The appeal has been returned to the Board for further consideration. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran seeks entitlement to a TDIU. He asserts he cannot work due to his service-connected disabilities. 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. See 38 C.F.R. § 4.16. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. The economic component requires a determination as to whether a Veteran's income exceeds the poverty threshold. The noneconomic component requires a determination as to a Veteran's ability to secure and follow such employment. With regard to the latter component, attention should be given to the Veteran's history, education, skill, and training. Consideration should also be given to both the Veteran's physical and mental abilities. From a physical standpoint, possible relevant factors include the Veteran's limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Regarding the Veteran's mental ability, possible relevant factors include limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In determining whether unemployability exists, consideration should not be given to the Veteran's age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 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. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his service-connected disabilities, but the functional impairment caused solely by his service-connected disabilities. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341 (a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service-connected disability or unemployability). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to TDIU is "based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, a TDIU analysis must take into account an individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994). Here, the Veteran is service-connected for posttraumatic stress disorder (PTSD) rated as 50 percent disabling from October 2012, 70 percent disabling from March 2014, and 50 percent disabling from April 2017; degenerative disc disease & degenerative joint disease, lumbar spine, status-post laminectomy/facetectomy rated as 20 percent disabling from April 2009, 100 percent disabling from August 2016, and 20 percent disabling from October 2016; left s1 radiculopathy associated with degenerative disc disease & degenerative joint disease, lumbar spine, status-post laminectomy/facetectomy rated as 10 percent disabling from April 2009 and 20 percent disabling from March 2017; tinnitus rated as 10 percent disabling from February 2009; radiculopathy, right lower extremity associated with degenerative disc disease & degenerative joint disease, lumbar spine, status-post laminectomy/facetectomy rated as 10 percent disabling from March 2014; bilateral hearing loss rated as noncompensable; and post-operative scars, laminectomy/facetectomy associated with degenerative disc disease & degenerative joint disease, lumbar spine, status-post laminectomy/facetectomy rated as noncompensable. Thus, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16 (a) for consideration of entitlement to a TDIU. He is eligible for an individual unemployability rating if it is demonstrated that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. After thorough consideration of the medical and lay evidence, the Board finds that there is evidence both for and against the claim for a TDIU. The Veteran was afforded a VA examination for his low back disability in August 2014. The examiner noted that the Veteran's low back disability impacted his ability to work, in that the Veteran was unable to lift or carry more than eight pounds; was unable to bend, stoop, squat, or sit more than a few minutes; could not ride in a vehicle for more than one hour; and could not walk more than 150 yards. The Veteran was afforded a PTSD VA examination in October 2014. Regarding the Veteran's TDIU claim, the examiner opined: It is not possible to conclude that he would be unemployable in terms of obtaining employment given his specialized training, skills, and experience, as well as given the diverse range of employment opportunities and settings that may exist. However, in terms of sustaining employment, it is plausible that his PTSD-related problems with memory, concentration, and distancing would likely create some challenges in his efficiency, productivity, and overall reliability with tasks that require extensive proximity to and/or collaboration with others as well as the completion of complex and repetitive tasks. The Veteran was again afforded a PTSD VA examination in December 2014. Regarding social activities, the Veteran reported having two close friends who he visits regularly, being an active church member, and having three dozen acquaintances through the American Legion. The Veteran reported that he only feels close to Veterans and prefers solitary leisure activities to include boating, watching television, and playing on his computer. The Veteran reported that his daily activities were occasionally disrupted by low motivation, and that he neglected chores and does not finish projects. In an April 2015 mental health treatment note from the Veteran's VA psychologist, the Veteran reported periods of depression which were not consistent. The Veteran reported that he was elected to the local American Legion board and that the work kept him busy, he believed in the work, and found it important and enjoyable. The Veteran reported planning a month long trip to Las Vegas and Utah which would include visiting friends and family. The Veteran stated he was managing and maintaining his psychiatric symptoms relatively well and that he continued to experience physical pain that impacted his quality of sleep. In summarizing the severity of the Veteran's condition, the VA psychologist stated that while the Veteran continues to experience some depressive symptoms, he is future oriented, actively involved in his recovery, and continues to demonstrate increasing self-awareness. In a September 2015 mental health treatment note from the Veteran's VA psychologist, the Veteran continued to report a euthymic mood. The Veteran reported enjoying a month long trip to Utah. The Veteran reported feeling significantly better physically and having more energy since working with his primary care physician to decrease his medication. The Veteran denied experiencing any significant psychological distress. After consultation with the Veteran, the VA psychologist noted the continued significant increase in mood and determined that the Veteran's treatment goals had been achieved. In an April 2016 mental health treatment note, the Veteran reported being hospitalized due to a stroke. The Veteran stated that he needed to make some life changes and planned to decrease his workload at the American Legion to focus on his recovery. The Veteran reported improved sleep with prescribed medication for pain. The Veteran was again afforded a VA examination for his back disability in May 2016. Regarding the Veteran's ability to function in an occupational environment, the examiner stated that the Veteran cannot participate in any work activities that require frequent bending or lifting of heavy objects, and that he would be unable to run, jog, kneel or stoop for long periods of time. The Veteran was also afforded another PTSD VA examination in May 2016. The Veteran reported spending the majority of each day at the American Legion. Regarding his activities there, the Veteran stated, "I do all the minutes of the meetings, all the printing, membership, keep things going and organized, all the paperwork that has to go through with liquor licenses and state stuff, it's a busy, busy job." The Veteran reported becoming agitated and overwhelmed with the work, but that he was able to "push myself and I get stuff done." The Veteran underwent lumbar spine surgery in August 2016. Post-surgery, the Veteran's private doctor indicated that the Veteran had no right lower extremity pain and that his low back pain was improved. The doctor noted that the Veteran has some neuropathic pain in the lower left extremity with painful cramps at night. In an October 2016 follow up record, the Veteran's private doctor noted that the Veteran had no clear cut neurological deficits. The doctor opined that the Veteran is not employable in previous line of duty, refrigeration and air conditioning maintenance and repair. In a March 2017 VA back examination report, the examiner described the functional impact of the Veteran's low back disability as: unable to run or jump, limited ability to perform activities that require prolonged walking [more than five to 10 feet], limited ability to perform activities that require prolonged sitting...limited ability to lift/carry/push/pull/drag more than 8# (gallon of milk), limited ability to walk on uneven terrain, climb or descend without risk for falling without assistive device, support or handrail, limited ability to perform activities that require balance, unable to bend forward. An August 2017 VA outpatient note indicated that the Veteran was "doing more at the Legion since the Commander quit." The Board has carefully considered the medical and lay evidence of record. Unfortunately, the Board finds that the evidence is insufficient to persuasively show that the Veteran is unemployable due to service connected disabilities. The record evidence does not support the Veteran's assertions that he is unable to obtain and maintain substantially gainful employment. Regarding the economic component of TDIU, in an August 2015 VA Form 21-4192 the Veteran reported being self-employed from August 1994 to January 2015 and working 35 hours a week with no time loss reported in the last 12 months of work due to his service connected disability. For earnings, the Veteran attached profit and loss statements showing business income of $20,921.96 and losses of $3,461.62 in 2011, income of $10,986.00 and losses of $16,252.69 in 2012, income of $3,915.85 and losses of $5,244.73 in 2014, and income of $217.50 and a profit of $175.50 in 2014. In a March 2014 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported that he became too disabled to work in 2013. In VA Forms 21-8940 received in May 2017 and June 2017, the Veteran reported that he became too disabled to work in March 2015 and that his highest yearly earnings were in 2010, when he earned $100,000. Aside from nominal income from his position at the local American Legion post, the Veteran indicates that his only source of income from work is from self-employment which ceased in 2015. A review of the financial information provided by the Veteran indicates that from 2012 his earnings fell below the federal poverty guideline income of $11,170. Thus, the economic component of TDIU is satisfied for the entire period on appeal. Regarding the non-economic component of TDIU, the Veteran has two years of college education and experience as a business owner. The Veteran reports retiring as a supervisor in 1993 with earnings of $68,000 per year. See March 2014 TDIU claim. The Veteran also reports owning a heating and air conditioning repair business for approximately 20 years after retiring from his supervisor position. The Veteran was elected to the board of the local American Legion post and spent most of his time there. The Veteran's work at the American Legion consisted of significant administrative duties, to include taking minutes of meetings, handling printing and membership information, organizational duties, and handling paperwork required for local and state licenses. While the Veteran reported feeling overwhelmed by his responsibilities, he was able to manage those feelings and complete the work. The Board notes that the Veteran planned to reduce his workload, but the evidence of record indicates that these plans were at least in part due to suffering a stroke. The Veteran reports maintaining relationships with friends, family, and a large circle of acquaintances. The Veteran has also engaged in varied recreational activities requiring some physical ability and ability to use a computer. The Veteran also reports multiple trips and visits with family and friends, to include a monthlong trip to Utah and Las Vegas. The evidence of record shows that the Veteran is capable of performing tasks which require executive functioning, and has the mental capacity to plan and execute projects. The Board acknowledges that the May 2016 and May 2017 VA examiners have generally found that the Veteran has significant deficiencies due to his back condition, including the inability to run or jump, walk or stand for prolonged periods, lift, carry, balance and bend forward. The Veteran underwent lumbar spine surgery in August 2016 and his private doctor thereafter opined that the Veteran is not employable in the refrigeration and heating and air conditioning repair business. While the Board acknowledges the opinions of the May 2016 and May 2017 VA examiners and the Veteran's private doctor regarding the Veteran's ability to secure or follow a substantially gainful occupation, the Board notes that the Federal Circuit has held that the determination of unemployability is a legal, rather than a medical determination. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As such, the Board considers the medical opinions but uses its own judgment to determine whether the Veteran's service-connected disabilities render him unable to secure and follow an occupation for which he is qualified. The Board finds the medical statements evidence significant difficulty in performing the physical tasks associated with the Veteran's profession in heating and air conditioning repair. However, the Board finds these medical opinions to be of limited probative value in assessing the Veteran's ability to perform skilled mental tasks at a high level of functioning. The Board also notes that VA examiners generally found that the Veteran has deficiencies due to his PTSD. The December 2014 VA examiner opined that the Veteran had severe and worsening functional impairment, but that these impairments were consistent with the Veteran's assigned disability rating. The May 2016 VA examiner opined that the Veteran becomes easily overwhelmed, experiences problems with concentration and low motivation, and has increased irritability leading to interpersonal conflicts. The VA examiner's overall assessment was that the Veteran had impairment with reduced reliability and productivity. The Board finds that there are some inconsistencies in the opinions of the December 2014 and May 2016 VA examiners when compared to the treatment records regarding the Veteran's ability to secure or follow a substantially gainful occupation. The Board notes the medical statements evidence significant difficulty interacting with people, including from irritability and stress, and an inability to concentrate. However, the Board finds the medical opinions offered by the examiners are inconsistent with the VA mental health treatment records and the assessment of a VA psychologist who worked with the Veteran over an extended period of time. The Veteran's VA psychologist noted that while the Veteran experienced some periods of depression, he demonstrated continual improvement and met the goals of his treatment. The Veteran's VA mental health treatment notes show that the Veteran maintained a busy lifestyle which included significant involvement in community service, travel, and recreational activities. Along with the medical evidence regarding the Veteran's occupational functioning, the Board has also considered the lay evidence, including descriptions by the Veteran of limitations in regard to ability to concentrate and finish projects, interacting with others, and his ability to perform physical tasks which require bending, lifting, carrying, and walking, standing, or sitting for prolonged periods. It is clear the Veteran is limited by the totality of his medical conditions. His combined disability rating is recognition of his impairment in earning capacity resulting from his service-connected disabilities. The Board, however, is not persuaded that the Veteran's service-connected disabilities currently render him unemployable. In rendering the decision herein, the Board has not impermissibly considered the Veteran's nonservice-connected disabilities or his age. Rather, the Board has considered, as it is required to do, all the relevant evidence, medical and otherwise, regarding the Veteran's employability. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.