Citation Nr: 21042518 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-39 753 DATE: July 13, 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 posttraumatic stress disorder (PTSD), tinnitus, and hearing loss do not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW 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, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to August 1970 and from November 1972 to October 1974. This matter is on appeal from a May 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in July 2019 when it was remanded for further development. TDIU The Veteran contends that he is unable to secure or follow substantially gainful employment due to his service-connected disabilities. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The established policy of VA reflects 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). Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The 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: (1) the Veteran's history, education, skill and training, (2) 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 (3) 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, 73 (2019). Moreover, age is not a factor to be considered in evaluating the Veteran's unemployability. 38 C.F.R. § 4.19. If the Board determines that the Veteran's unemployability was a result of his age and non-service-connected disabilities, the Board is still required to decide, without regard to the non-service-connected disabilities or age, whether the Veteran's service-connected disabilities are sufficiently incapacitating as to render him unemployable. Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran has been assigned the following ratings for his service-connected disabilities: posttraumatic stress disorder (PTSD) rated at 70 percent; tinnitus rated at 10 percent; and left ear hearing loss rated as noncompensable. The Veteran therefore meets the percentage requirements for a schedular TDIU. Thus, the remaining question is whether the Veteran's service-connected disabilities alone render him incapable of participating in a substantially gainful employment. Regarding the service-connected tinnitus and hearing loss, May 2011 records furnished by the Social Security Administration (SSA) note no communicative limitations in the Veteran's ability to hear. The Veteran was provided with a VA examination in April 2015 in which the Veteran reported difficulty understanding speech when in the presence of background noise or in any environment when someone is speaking on his left side. He described his tinnitus as "very annoying and that it affects his ability to concentrate to get to sleep." Regarding the service-connected PTSD, the Veteran was provided with a VA examination in May 2015 in which the examiner opined that the Veteran's disability results in occupational and social impairment with reduced reliability. The Veteran reported completing some college classes prior to joining the military. He also reported working in the fast-food industry and for a department store. After service, the Veteran took classes in welding and worked in a city department for eight years but was "let go because the foreman did not like him." He reported working as a truck driver from 1986 to September 2010 but was forced into retirement because of a heart condition. He stated that he believed that truck driving was the "perfect job for him because he did not have to deal with anybody." He stated that he believed he would have struggled to maintain any other type of job. The examiner stated that "regarding functioning, the Veteran is variable" because "occupationally, he held a job working for the city park's department for eight years, which he would have liked to continue doing, but he was unable to do so because of interpersonal conflict with the foreman." She stated that he "stopped working in 2010 for physical reasons" and it "appears that his PTSD symptoms impacted the line of work he chose, but he was able to successfully work in that field without interference from mental health symptoms." In September 2015, the Veteran was provided with an additional VA examination for PTSD in which the examiner opined that the disability results in occupational and social impairment with reduced reliability and productivity. The Veteran reported isolating and not wanting to leave his apartment. He stated that he was suited to working alone as a truck driver and was unpleasant to dispatchers. He stated that if he had not been doing that type of work, he would not have been able to work. He reported retiring in 2010 due to his heart disease. He stated that he was irritable on the job and chose to work where he could be alone. The examiner noted that PTSD affected his choice of work. The examiner also stated that the Veteran "would struggle to work at jobs requiring interaction or cooperation with others." In May 2018, VA received a Posttraumatic Stress Disorder Disability Benefits Questionnaire (DBQ) completed by clinical psychologist, R.S., Ph.D., who noted that the disability results in total occupational and social impairment. However, Dr. R.S. did not provide a rationale for this finding or discuss the Veteran's occupational history. Thus, the Board does not assign significant probative value to this finding. In December 2018, VA received an additional correspondence from clinical psychologist, Dr. R.S., in which he stated that he "feel[s] [the Veteran] is unemployable due to the severity of his PTSD." He noted symptoms of hypervigilance, nightmares, sleep difficulties, anger and irritability significant at times, feeling anxiety and unsafe in most places, exaggerated startle response, avoidance behavior, unable to have loving feelings, and little or no interest or participation in significant or enjoyable activities. Dr. R.S. was able to observe the Veteran's symptoms over a long period of time, as he noted that he had seen the Veteran for 31 sessions since May 2014. However, Dr. R.S. did not address the Veteran's actual employment history or the Veteran's disqualification from his truck driving job due to health issues unrelated to his service-connected heart condition. Further, the opinion does not discuss the manner in which the Veteran was able to continue to successfully maintain employment despite these symptoms up until the date at which his heart condition resulted in his disqualification. Given these inadequacies in the rationale, the Board assigns little probative weight to this opinion. During the December 2018 hearing, the Veteran explained that he was forced to retire as a long-haul truck driver due to the defibrillator in his chest from his heart condition. He also discussed the "trouble with dispatchers and my employers who didn't like how I acted ... or the language I would come up with when I got stressed." Regarding the Veteran's specific education, training, skill, and experience, an August 2015 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability reflects that the Veteran completed one year of college and completed truck driving school in 1986. He reported working as a truck driver until August 2010. Throughout the appeal period, the Veteran has presented with the mental ability to complete tasks and communicate clearly and coherently. The record reflects the greatest degree of impairment in the Veteran's ability to cooperate with coworkers due to his symptoms of irritability and anger, as reflected in his reports of conflict with a dispatcher. Nonetheless, the record reflects that the Veteran was able to perform well as a truck driver due to his ability to complete the requirements of such employment. Further, the evidence does not indicate that the Veteran would not have been able to continue as a truck driver despite such impairment, as he has reported his termination from his truck driving job as due to disqualification from nonservice-connected physical impairments. Thus, the record indicates that the Veteran possesses the cognitive and mental ability to perform employment which allows for minimal interaction with others. The Board also acknowledges the Veteran's reports of symptoms including difficulty with concentrating and sleeping; however, even when considering such functional limitation on cognitive ability, the record does not reflect that these symptoms manifest with such a severity that they preclude substantially gainful employment. Regarding the Veteran's physical ability (both non-exertional and exertional), the Board acknowledges the Veteran's reports that his heart condition caused his disqualification as a truck driver. However, when evaluating entitlement to TDIU, the pertinent inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As the Veteran's heart condition is not currently service connected, the impairment from this disability cannot be considered when determining whether entitlement to a TDIU is warranted. While the Veteran has reported sleep disruptions from PTSD which may result in fatigue during the day, the record does not otherwise indicate functional limitation in the Veteran's physical ability due to his service-connected PTSD, tinnitus, and hearing loss. The Board acknowledges that the Veteran received a favorable finding from the Social Security Administration (SSA). However, the Board is not bound by the findings of disability or unemployability from an administrative decision from SSA, but rather, such findings may be relevant evidence to be considered in a TDIU claim. See, e.g., Collier v. Derwinski,1 Vet. App. 413, 417 (1991) (ruling that although it was probative evidence to be considered in the claim with VA, the SSA's favorable determination in that case, for example, was not dispositive or altogether binding on VA since the agencies have different disability determination requirements). In this case, the record reflects that SSA's favorable finding was based on a primary disability of the Veteran's nonservice-connected heart condition. Thus, these findings are only probative to the extent that they address the symptomatology of the Veteran's service-connected disabilities, as explained above. Accordingly, the Board finds that the Veteran's service-connected PTSD, tinnitus, and hearing loss do not preclude him from securing or following 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. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.