Citation Nr: 21041576 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 11-00 477 DATE: July 9, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied for the period prior to July 30, 2012. FINDING OF FACT Prior to July 30, 2012, the preponderance of the evidence is against finding that the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for the assignment of a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded for additional development in August 2014, September 2020, and March 2021 Board decisions. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). On the December 2010 VA Form 9, the Veteran requested a Board hearing; however, in September 2011, the Veteran withdrew the hearing request and asked to have the case forwarded to the Board without further delay. See also June 2011 VA Form 21-4138, statement in support of claim. Entitlement to a TDIU prior to July 30, 2012 In a December 2020 rating decision, the RO granted the Veteran entitlement to TDIU from July 30, 2012. This appeal addresses the period prior to that date. Total disability ratings will be assigned "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a). TDIU may be assigned to a veteran who meets certain disability percentage thresholds and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a). The central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A higher rating alone is recognition that the impairment makes it difficult to obtain and maintain employment. The question is whether a veteran can perform the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). While Social Security Administration (SSA) decisions regarding unemployability are clearly relevant and should be weighed and evaluated, they are not controlling with respect to VA determinations. Odiorne v. Principi, 3 Vet. App. 456, 461 (1992). 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, 452 (2009). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to July 30, 2012, the Veteran is service connected for posttraumatic stress disorder (PTSD), with a 30 percent disability rating from March 3, 2007 and a 50 percent disability rating from August 27, 2007. Prior to July 30, 2012, the Veteran is also service connected for anisocoria, deviated nasal septum, healed shell fragment wound, right forehead, and bilateral hearing loss, all evaluated as noncompensable. Thus, the Veteran did not meet the criteria under 38 C.F.R. § 4.16(a) for schedular consideration for TDIU prior to July 30, 2012. It is also the policy of the VA, however, 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. 38 C.F.R. § 4.16(b). Therefore, where, as here, the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability and the case may be submitted to the Director of the Compensation Service for consideration. 38 C.F.R. §4.16(b). The Board is precluded from granting a total rating under section 4.16(b) unless the issue is initially reviewed by the Director of the Compensation Service. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). The Veteran contends that his PTSD prevents him from working. However, the Board finds that a referral of the TDIU claim to the Director of the VA Compensation Service for extraschedular consideration is not warranted because the preponderance of the evidence is against finding that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to July 30, 2012. The Veteran reported that his PTSD affected his full-time employment in January 2007. He noted that he was employed with Micro Shield Inc. from 1987 through January 2007. See October 2007 and July 2014 VA Form 21-8940, Application for Increased Compensation based on unemployability. Prior to his employment with Micro Shield, the Veteran was a paint contractor for approximately 20 years. See April 2009 VA examination. His employer reported that the Veteran was in sales and worked eight hours a day, forty hours per week, and noted that his employment ended in January 2007 after he sustained a broken wrist with nerve damage. See September 2007 VA 21-4192, Request for Employment Information in Connection with Claim. The Veteran has confirmed on several occasions that his employment was terminated when he injured his right arm/wrist. He stated that he worked for Micro Shield for nineteen years as a salesman and was fired when he injured his right arm falling from a ladder while doing private work painting his boss's house. He stated that when he filed a claim against his boss's insurance company, his boss fired him. See May and October 2007 VA examinations. He noted that he suffered a compound fracture of his right arm and could no longer work because his job involved climbing ladders and getting on rooftops which he could not do after his right arm injury. See April 2009 VA examination. In sum, the preponderance of the evidence reflects that the Veteran stopped working (or was terminated) due to his right arm injury and not because of his PTSD symptoms. In terms of his education, the Veteran completed grade school and two years of high school before obtaining a GED. See October 2007 VA 21-8940, Application for Increased Compensation based on unemployability. Throughout the appeal period, the severity of the Veteran's PTSD was evaluated by several clinicians, none of whom described symptoms or a level of functional impairment severe enough to render him unemployable. At a May 2007 VA examination, the examiner reported PTSD symptoms that included sleep impairment and an anxious mood but stated that the Veteran did not have inappropriate behavior, impaired impulse control, episodes of violence or panic attacks. Ultimately, the May 2007 VA examiner opined that the Veteran did not suffer from total occupational impairment due to his PTSD but instead found that the Veteran's PTSD resulted in an occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks. However, the VA examiner noted that the Veteran had generally satisfactory functioning with routine behavior, self-care and conversation being normal. The examiner also noted that the Veteran had a stable work history and had rarely been unemployed. An October 2007 VA examiner diagnosed the Veteran with mild PTSD and a "very mild nonspecific functional impairment." He explained that although the Veteran's PTSD stressors were severe, his PTSD symptoms were mild. The VA examiner described the Veteran as an articulate, well groomed, cooperative individual who exhibited good social skills. He noted that his verbal comprehension and concentration were good. After examining the Veteran and conducting testing, the VA examiner opined that the Veteran was not unemployable due to his PTSD. He stated that the Veteran did not have any serious problem behaviors and that his PTSD symptoms did not affect his occupational functioning. The VA examiner reported that the Veteran was not working at the present time because of his physical problems and stated that his social adjustment was normal. The Veteran denied functional impairment and noted that he was not involved in any sort of mental health treatment or counseling and never had been. The Veteran did report that when he was working, he would become depressed at times and would miss eight or nine days per month because of his depression. At an April 2009 VA examination, the examiner, K.F., PhD., opined that the Veteran's PTSD and depression did not lead to unemployability. The examiner explained that the Veteran described a stable work history which ended when he suffered a compound fracture of his right arm. The Veteran reported that he required surgery, one and a half years of physical therapy, and noted that he currently has limited use of his right arm. Dr. F. diagnosed the Veteran with mild to moderate PTSD as well as a cognitive disorder, not otherwise specified. A mental status exam found that the Veteran's thought processes were clear, logical, goal directed and coherent. His thought content and behavior were relevant and appropriate, and his social judgment was intact. Dr. F. noted that the Veteran tended to avoid social interactions. Finally, he reported that the Veteran exhibited cognitive deficits but found that the deficits appeared disproportionate to his psychiatric condition and represented an "organic" process that was not at least as likely as not related to his PTSD. Ultimately, after considering the Veteran's PTSD symptoms, Dr. F. found that his PTSD resulted in an occasional decrease in his work efficiency with intermittent periods of inability to perform occupational tasks. However, Dr. F. noted that in general, the Veteran exhibited satisfactory functioning, evidenced by the fact that he was a top salesman at work. When the VA examiner asked the Veteran whether his PTSD symptoms negatively impacted his ability to work, the Veteran described limited motivation, noting that a lot of days he only worked two to three hours; however, he stated that he was working as a commissioned salesman. Significantly, the Veteran denied that he had any trouble getting along with customers or co-workers. In sum, after interviewing and examining the Veteran, Dr. F. stated that the central factor in the Veteran's inability to work at this time was his right arm, and a secondary factor contributing to a mild to moderate degree of occupational impairment was PTSD and depressive symptoms which led to diminished motivation over the course of his working life. As documented above, medical examiners during the appeal period have not found that the Veteran's PTSD is severe enough to prevent employment. The May 2007 and April 2009 VA examiners both determined that the Veteran's PTSD only resulted in an occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks. His PTSD was described as "mild" by the October 2007 VA examiner, and found to cause "mild to moderate" occupational impairment by Dr. F. in an April 2009 VA examination. Further, the Veteran denied having any trouble getting along with customers or co-workers (see April 2009 VA examination), and importantly, the Veteran's PTSD did not result in inappropriate behavior, impaired impulse control, episodes of violence or panic attacks, which are all symptoms that can impact occupational functioning. Although the Veteran experiences sleep impairment, an anxious mood, and tends to socially isolate, the Board finds that these symptoms alone are not sufficient to render the Veteran unemployable. The Board attaches high probative value to the VA examiners' opinions regarding the level of occupational impairment caused by the Veteran's PTSD. The VA examiners are experienced with assessing disability impairments and their findings are consistent with the other medical evidence of record, including VA outpatient treatment records dated from April 2008 through June 2012 which do not show PTSD symptoms severe enough to render the Veteran unemployable. Specifically, in an April 2008 mental health note, the clinician noted that there were no significant deficits in self-expression, stress management, coping skills, organizing a task, following instructions, or maintaining self-control. A June 2008 mental health consult reported mild irritability, described the Veteran's mood as "ok," and noted that his thought processes were logical, sequential and goal directed. See also July and September 2008 mental health consults describing logical and organized thought processes and intact judgment. During a January 2009 mental health outpatient consult, the Veteran reported that his sleep was "good," and he denied problems with focus or concentration. The Board acknowledges that the Social Security Administration (SSA) found the Veteran to be disabled due to his PTSD and status post fracture of the right radius beginning April 18, 2008. SSA's disability determinations regarding unemployability are not binding on the VA because while there are significant similarities, there are significant differences between the two disability determination schemes. See Martin v. Brown, 4 Vet. App. 136, 140 (1993). Significantly, an SSA disability determination considers an applicant's age, as well as nonservice-connected disabilities, both of which VA regulations prohibit consideration of. The SSA considered all the Veteran's disabilities in making their determination, including his nonservice-connected right arm disability, rather than solely his service-connected disabilities which are the focus of VA's inquiry into unemployability. Further, psychiatric evaluations obtained by the SSA to evaluate the Veteran's claim for social security disability benefits reflect mild PTSD symptoms, not symptoms severe enough to render the Veteran unemployable. Specifically, a March 2009 mental residual functional capacity assessment that evaluated understanding and memory, sustained concentration and persistence, and social interaction and adaptation, did not mark any category higher than moderately limited, with several categories noted to be not significantly limited. Dr. S. stated that the Veteran remained able to understand, remember and carry out detailed but not complex tasks, and noted that he can maintain concentration, adapt to changes and relate to others. An April 2008 Psychiatric review by N.W., Ph.D., initiated by the SSA, diagnosed the Veteran with a mild mood disorder not otherwise specified and mild PTSD. She reported only mild functional limitations, including mild difficulty in maintaining social functioning and mild difficulty in maintaining concentration, persistence, or pace. Dr. W. noted that the Veteran's PTSD symptoms and limitations noted by him were not wholly supported by the evidence of record. She stated that until October 2007, the Veteran had not had any psychiatric treatment or counseling and noted that the mental status evaluation indicates a normal thought process and good social skills. She stated that the Veteran reported some trouble getting along with people but described limitations more associated with physical issues. In sum, Dr. W. found that no serious problems were noted and symptoms from PTSD and mood disorder were mild. See SSA records received December 2014. Overall, especially given the above psychiatric assessments obtained by SSA where the examiners only describe mild PTSD symptoms; the fact that the Veteran has been in receipt of SSA disability benefits since April 2008, is of limited probative value and does not alter the Board's conclusion. Finally, the Veteran does not allege, and the evidence does not reflect that the Veteran's healed shell fragment wound scars on his right forehead, anisocoria, deviated nasal septum and bilateral hearing loss, all evaluated as noncompensable, prevent the Veteran from obtaining employment. After considering the Veteran's employment and educational background, as well as the severity of his service connected disabilities, in particular his PTSD, the Board finds that the Veteran is not unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Accordingly, the Board declines to remand the claim for referral to the Director for consideration of TDIU on an extraschedular basis. The claim of entitlement to a TDIU is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, 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.