Citation Nr: 21040718 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 07-31 046A DATE: July 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 9, 2015 is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's service-connected disabilities were so severe as to preclude all forms of substantially gainful employment prior to September 9, 2015. CONCLUSION OF LAW Prior to September 9, 2015, the criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1954 to October 1961. These matters are before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2020 the Board remanded the appeal for further development. The issue has now been returned to the Board. The Board remand directed development for possible Social Security (SSA) disability records. Such records were requested and SSA responded that no such records exist for the Veteran. The Veteran was notified of SSA's response and given the opportunity to submit any records in his possession. The Board finds that the agency of original jurisdiction substantially complied with the April 2020 remand orders and no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Entitlement to a TDIU prior to September 9, 2015 is denied. The issue of entitlement to a TDIU was raised by the record and is part and parcel of the Veteran's increased rating claims for asbestosis and an anxiety disorder which were previously adjudicated in September 2017 and April 2020 Board decisions. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The only issue remaining before the Board is entitlement to a TDIU prior to September 9, 2015. VA will grant a total disability evaluation based on individual unemployability due to service-connected disorders when the evidence shows that 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. A total rating for compensation purposes may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether an appellant is entitled to a total disability evaluation based on individual unemployability, neither his nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. The Veteran is service connected for an anxiety disorder, not otherwise specified rated 10 percent disabling prior to August 28, 2006, and 50 percent disabling from August 28, 2006 to September 8, 2015; asbestosis rated 60 percent disabling since March 3, 2006, sinusitis rated 10 percent disabling since August 28, 2006, an appendectomy scar rated 0 percent disabling since October 28, 1961, bilateral hearing loss rated 0 percent disabling since August 28, 2006, and headaches rated 0 percent disabling since August 28, 2006. His combined rating was 60 percent from March 3, 2006 to August 27, 2006, and 80 percent from August 28, 2006 to September 8, 2015. 38 C.F.R. § 4.25. Therefore, the threshold percentage requirements for an award of TDIU are met since March 3, 2006. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In a May 2006 VA treatment record, the Veteran was noted to be "doing well psychiatrically" but to have "problems relating to asbestosis." On VA pulmonary examination in May 2006, the asbestosis was noted to cause shortness of breath on exertion such as bending, lifting, or walking for prolonged periods of time and he was described as being able to walk for 5-10 minutes before taking a break. The examiner described a "mild obstructive defect on [pulmonary function tests]." In a September 2006 VA treatment record, the Veteran reported feeling nervous and uptight and worrying all the time, with poor sleep due to rumination, inability to sit still, poor concentration and mind going blank. On VA psychiatric in December 2006 examination, the Veteran was noted to experience excessive anxiety and worry associated with restlessness, difficulty concentrating, irritability, muscle tension and sleep disturbance. The examiner stated that that the Veteran's psychiatric symptoms did not appear to be "causing him persistent, significant distress" and noted the Veteran was "retired and described no problems with recreational or social functioning" and that the veteran 'described his overall functioning as "real good."' The examiner noted that the Veteran's asbestosis limited "his physical activities somewhat" but that his psychiatric symptoms did not appear to be "significantly impacting his functioning at this time." In an April 2008 report a private psychologist, S.W., reported symptoms of depression and anxiety including restlessness, nightmares, irritability, difficulty concentrating, excessive jumpiness, early morning awakening, avoidance of activities that remind him of unpleasant experiences, inability to express feelings, tension and anxiety and vivid memories of prior unpleasant experiences. The Veteran reported that he was not involved in his community, but his interests included playing poker, stock car races, computer games, hunting and fishing. He was noted to manage his own self-care in all major areas of daily living. A December 2009 VA treatment record noted that the Veteran reported dysphoria "from time to time," but that when he experienced this he would "go out and exercise or connect with others." At his June 2010 Board hearing, the Veteran reported a history of working with the Navy and retired at age 55. In a July 2010 application for increased compensation based on unemployability (VA Form 21-8940) the Veteran reported being unable to work due to "several" unspecified disabilities. He reported becoming too disabled to work in 1997, and last working full time in 2003. The Veteran did not provide a history of his last five years of employment but noted completing 3 years of high school. In September 2010 a private psychologist, W.C., reported symptoms of anxiety including excessive and persistent daily worry about finances, hypervigilance such as motor tension and restlessness, fatigue or tiredness, trouble concentrating and mind going blank. Depression symptoms included frequent sadness and depressed mood, difficulty waking, hyposomnia, irritability, psychomotor agitation, feelings of worthlessness, or excess and inappropriate guilt, difficulty concentrating and thinking clearly, and difficulty making decisions. W.C. noted that the reported depressive symptoms were severe. On VA respiratory examination in June 2011 the Veteran was noted to experience dyspnea on exertion but was able walk 14 mile and to climb 10 steps. On VA psychiatric examination in June 2011, the Veteran was noted to experience sleep disturbances and chronic discomfort in social settings, but also reported having many friends and "no problems with social functioning." The Veteran was noted to visit with friends and his activities of daily living were not problematic. He reported "emotionally doing well." The examiner characterized the Veteran's psychiatric symptoms as "mild to moderate." The preponderance of the evidence is against finding that the functional limitations due solely to the Veteran's service-connected disabilities alone would preclude all forms of substantially gainful employment prior to September 9, 2015. During this period, the record primarily reveals that asbestosis caused shortness of breath with prolonged physical activity, and his anxiety disorder caused symptoms such as depression, excessive anxiety and worry, restlessness, difficulty concentrating, difficulty thinking clearly, irritability, muscle tension and sleep disturbance. Overall, the evidence of record does not indicate that any service-connected symptoms were of such severity to preclude all forms of substantially gainful employment. In this regard, the evidence does not demonstrate that the Veteran would be precluded from maintaining employment which did not require prolonged physical activity. The Board acknowledges that the reported psychiatric symptoms would be expected to cause some functional impairment. However, despite the above-noted symptoms, the evidence of record does not support that such symptoms precluded all forms of substantially gainful employment. On the contrary, the December 2006 VA examiner stated that the psychiatric symptoms were not significantly impacting the Veteran's functioning, and the June 2011 VA examiner noted no problems with social functioning and characterized the overall severity of psychiatric symptoms as mild to moderate. While the September 2010 report of W.C. characterized the Veteran's depressive symptoms as "severe," W.C. did not specifically describe any functional impairment due to such symptoms, nor did W.C. opine that such symptoms would preclude substantially gainful employment. The preponderance of the evidence indicates that the Veteran's psychiatric symptoms, even in combination with his other service-connected symptoms would not preclude all forms of substantially gainful employment. The evidence further preponderates against finding that such appropriate employment would be outside the scope of his education and occupational experience. In this regard, the Veteran has not provided a complete work history. However, the VA treatment records indicate that he was most recently employed for 10 years as a retail salesperson. The record does not indicate that the Veteran's respiratory or psychiatric symptoms prior to September 9, 2015 would have precluded him from returning to his past employment as a retail salesperson, or similar employment. The evidence thus preponderates against finding that the Veteran's service-connected symptoms would preclude him from all types of employment consistent with his occupational history. Based on the foregoing, the totality of the evidence preponderates against finding that the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment consistent with his educational and occupational experience prior to September 9, 2015. For the foregoing reasons, entitlement to a TDIU prior to September 9, 2015 is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.