Citation Nr: 22015362 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 11-28 636 DATE: March 17, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 1, 2012, is denied. FINDINGS OF FACT 1. The record evidence shows that, prior to January 1, 2012, service connection is in effect for posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling effective February 28, 2008, for left calf muscle gunshot wound injury, tinnitus, right foot shrapnel scar on the dorsal surface, right foot shrapnel scar on the plantar surface, and for left calf nerve damage, each evaluated as 10 percent disabling effective February 28, 2008, and for left sensorineural hearing loss, left calf shrapnel scars, and shrapnel scars on the back, each evaluated as zero percent disabling effective February 28, 2008; the Veteran's combined disability evaluation for compensation is 70 percent effective February 28, 2008. 2. The record evidence shows that, prior to January 1, 2012, the Veteran has not reported consistently his post-service employment history. 3. The record evidence shows that, on VA audiology examination in April 2008, the Veteran did not report that his service-connected tinnitus interfered with his employability and it would have been unreasonable to expect that the VA examiner to provide an opinion concerning the occupational impact of this disability. 4. The record evidence shows that, although the Veteran has reported significant impairment due to his service-connected tinnitus, this disability, alone or in combination with his other service-connected disabilities, did not preclude his employability prior to January 1, 2012. 5. The record evidence shows that, on examinations conducted in May 2008, February and March 2010, and in June 2011, multiple VA clinicians discussed the occupational impact of the Veteran's service-connected disabilities on his employability; taken together, this evidence persuasively suggests that these disabilities, alone or in combination, did not preclude him from securing or maintaining a substantially gainful occupation prior to January 1, 2012. 6. The record evidence shows that, in a private employability assessment dated in November 2021, a private vocational consultant concluded that the Veteran's service-connected disabilities precluded his employability prior to January 1, 2012; when analyzed critically, this evidence does not support granting a TDIU prior to January 1, 2012. CONCLUSION OF LAW The criteria for a TDIU prior to January 1, 2012 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1966 to August 1968, including in combat in the Republic of Vietnam. This appeal has a long and complicated procedural history. Most recently, in December 2020, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded an August 2019 Board decision to the extent that it denied a claim of entitlement to a TDIU prior to January 1, 2012. Thus, this issue is as stated above. The Board is not persuaded that the evidence supports granting the Veteran's claim of entitlement to a TDIU prior to January 1, 2012. He essentially contends that he is entitled to a TDIU effective February 28, 2008, the date that he met the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (2020). It is undisputed that, prior to January 1, 2012, service connection is in effect for PTSD, evaluated as 50 percent disabling effective February 28, 2008, for left calf muscle gunshot wound injury, tinnitus, right foot shrapnel scar on the dorsal surface, right foot shrapnel scar on the plantar surface, and for left calf nerve damage, each evaluated as 10 percent disabling effective February 28, 2008, and for left sensorineural hearing loss, left calf shrapnel scars, and shrapnel scars on the back, each evaluated as zero percent disabling effective February 28, 2008. It also is undisputed that the Veteran met the schedular criteria for a TDIU effective February 28, 2008. Id. What is disputed is the Veteran's post-service employment history and what he reported concerning this history to the VA clinicians who examined him for VA adjudication purposes prior to January 1, 2012. It is clear from a review of the record evidence that what he reported on his October 2018 VA Form 21-8940 (formal TDIU claim) concerning his post-service employment history is not what he reported to these VA examiners during the time period at issue in this appeal. A review of the Veteran's October 2018 VA Form 21-8940 shows that he reported that he last worked full time in October 2006 when he became too disabled to work and then worked at least part-time (or 30 hours a week) until approximately February 2012 when he stopped working altogether. He also reported earning an associate's degree, a bachelor's degree in marketing, working towards a master's degree (which was incomplete), and participating in on-the-job training between his service separation and when he stopped working altogether in approximately 2012. He reported a very different post-service employment history to the VA examiners who saw him prior to January 1, 2012, which undercuts the argument repeatedly presented by his attorney in multiple submissions to VA criticizing these examiners for not offering an opinion concerning the impact of the Veteran's service-connected disabilities on his employability. It seems unreasonable to the Board to expect a VA examiner to provide an opinion concerning employability when the Veteran himself reports that he is not employed to an examiner (although he reported being employed at least part-time at the same time as these examinations on his formal TDIU claim completed in October 2018). It also is unreasonable for the Veteran's attorney to criticize the Board for its analysis of entitlement to a TDIU when there is no evidence that the Veteran cooperated with VA's attempts to obtain his accurate post-service employment history by completing a VA Form 21-4192 for each of his former employers. The Board cannot expect VA clinicians to discuss a Veteran's employability when his or her employment history is not clear or is in conflict based on a review of the available record evidence. Nor is it reasonable for the Veteran's attorney to expect that the Board will find that the occupational impact of the Veteran's service-connected disabilities precluded his employability when he failed to provide relevant information concerning his post-service employment which would enable the Board to make these findings. In this regard, the Court has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In its December 2020 memorandum decision, the Court criticized the Board's August 2019 decision for accepting without further analysis the silence of certain medical records dated prior to January 1, 2012, on the issue of whether the Veteran's service-connected disabilities, alone or in combination, precluded his employability. The Court also criticized the Board's August 2019 decision for violating Delrio. See Delrio v. Wilkie, 32 Vet. App. 232 (2019). The Board will address the Court's concerns in analyzing the Veteran's entitlement to a TDIU prior to January 1, 2012, de novo in this decision. As the Court noted in its December 2020 decision, Delrio requires that the Board explain why it would be reasonable to expect that a VA clinician would comment on the occupational impact of a service-connected disability in an examination which is not provided for the purpose of determining entitlement to a TDIU. See Delrio, 32 Vet. App. at 240-41. The Court criticized the Board's April 2019 decision for relying on the silence of several VA clinicians on the issue of employability as support for denying entitlement to a TDIU prior to January 1, 2012, in violation of Delrio. The Board observes that it may have been error to rely on silence from VA clinicians as support for denying the Veteran's TDIU claim. Nevertheless, a review of relevant medical evidence dated prior to January 1, 2012, does not support granting a TDIU for this time period. For example, on VA feet examination in May 2008, the Veteran reported to the VA clinician that, although his usual occupation was as a marketing consultant for Texaco, a retail manager for food stores, and retail gasoline marketing, he was unemployed at the time of this examination. He also reported that he retired in approximately 2006 due to physical and psychiatric problems. (The Board observes here that this post-service employment history is not what he reported on his formal TDIU claim.) He identified his physical problems as pain from his right foot, left calf, and upper back, and his psychiatric problems as stress. The VA clinician stated that the Veteran was not employed in response to the question of the general occupational effect of the service-connected disabilities evaluated at this examination. This clinician also stated, "When the foot condition flares many activities are prevented several times a week for an hour or so." The Board notes that the Veteran reported the same inaccurate post-service employment history of being unemployed currently on VA muscle examination in May 2008. On VA PTSD examination in May 2008, the Veteran reported that his usual occupation was in marketing. He again reported inaccurately that he currently was unemployed and had retired in October 2006. The cause of his retirement was, "Eligible by age or duration of work." This clinician concluded that the "Veteran appears to primarily be experiencing affective sequelae of mild PTSD including lowered frustration tolerance, anxiety, and depression...There is a direct link between the aforementioned changes in functional state and PTSD symptoms." This clinician also concluded that there were no deficiencies in work due to the Veteran's service-connected PTSD. This clinician further concluded that there was an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks due to PTSD signs and symptoms but with generally satisfactory functioning. On VA PTSD examination in February 2010, the Veteran reported for the first time that he retired in 1998 and was not employed currently. His usual occupation was in marketing. The causes of his retirement were, "Eligible by age or duration of work, Medical (psychiatric problem)." He described his psychiatric problems as "Intolerable levels of stress." The VA examiner concluded that there were no deficiencies in work due to PTSD signs and symptoms. This examiner also concluded that there was no occasional decrease in work efficiency or intermittent periods of an inability to perform occupational tasks due to PTSD signs and symptoms. This examiner further concluded that there were no PTSD signs and symptoms which were transient or mild and decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. This examiner finally concluded, "[The Veteran's] PTSD symptoms are not severe enough to interfere with occupational and social functioning." On VA muscle examination in March 2010, the VA examiner concluded that the Veteran's service-connected left calf muscle gunshot wound injury had "[s]ignificant effects" on his general occupation due to decreased mobility and pain. It does not appear that an occupational history was reported or obtained at this examination. On VA scars examination in March 2010, the VA examiner concluded that the Veteran's service-connected right foot shrapnel scars had "[s]ignificant effects" on his general occupation due to decreased mobility and pain. It does not appear that an occupational history was reported or obtained at this examination. On VA muscle examination in June 2011, the Veteran reported that his usual occupation was as a marketing consultant for Texaco. He also reported for the first time that he was employed currently part-time in florist delivery. He next reported for the first time that he had been employed part-time in florist delivery for the previous 2 to 5 years. He had not lost any time from work in the prior 12 months. He further reported for the first time the following occupational history: 1968-1972 student 1972-1998 marketing consultant for Texaco 1999-2006 manager of convenience food stores for a Texaco distributor 2007-present florist delivery The Court specifically criticized the Board's April 2019 decision for not discussing the occupational impact of the Veteran's service-connected tinnitus. The Board notes in this regard that, on VA audiology examination in April 2008, the Veteran's complaints included "difficulty understanding speech in many listening situations" especially "in competing noise and in group listening situations." He denied any post-service occupational noise exposure "in his work as a marketing rep." A history of constant tinnitus in the left ear was reported. The Board recognizes that, under Delrio, it cannot use the April 2008 VA audiology examiner's silence regarding the Veteran's unemployability as evidence against the TDIU claim. This examiner was not asked to provide and did not provide an opinion concerning the occupational impact of the Veteran's service-connected tinnitus on his employability. The Board does not doubt that the Veteran found the occupational limitations due to his service-connected tinnitus which he identified on the April 2008 examination as extremely frustrating and potentially interfering with his employment as a marketing representative, a manager, and as a delivery driver for a florist. As outlined above, however, the Veteran did not identify his service-connected tinnitus as among the reasons for his retirement when asked by other VA clinicians to provide the reason(s) for his retirement when examined in May 2008. The Board finds the Veteran's contemporaneous assertions as to the reason(s) for his retirement, articulated on multiple VA examinations in May 2008 (approximately 1 month after his VA audiology examination), to be more probative than the assertions he provided many years later on his October 2018 VA Form 21 8940 and to the private vocational counselor in November 2021. The Veteran's assertions in October 2018 and in November 2021 again are less probative than the statements about the reasons for his retirement which he provided to multiple VA clinicians contemporaneous to when his service-connected tinnitus was evaluated for VA adjudication purposes in April 2008. The Court finally criticized the Board's April 2019 decision for not explaining sufficiently why the physical limitations imposed by the Veteran's service-connected disabilities did not produce unemployability. As noted elsewhere, he reported on VA feet examination in May 2008 that physical problems which contributed to his retirement were pain from his right foot, left calf, and upper back. The May 2008 VA feet examiner concluded, "When the foot condition flares many activities are prevented several times a week for an hour or so." Although, as noted elsewhere, his reported post-service employment history is not a model of clarity, he also reported that he worked at least part-time as a delivery driver for a florist at the same time that these physical limitations due to his service-connected right foot shrapnel scars were noted on examination. The Board finds it reasonable to conclude that, as a part-time employee, the Veteran could cope with both flare-ups of a foot condition "several times a week for an hour or so" without being precluded from employment. Similarly, and as discussed in more detail below, although the March 2010 VA scars and VA muscle examiners found that there were "significant effects" of the Veteran's service-connected left calf muscle gunshot wound injury and his service-connected right foot shrapnel scars, these effects were due to decreased mobility and pain. These examiners did not find, and the evidence does not show, that either of these service-connected disabilities precluded the Veteran's employment. This is particularly so because he reported that he worked at least part-time (30 hours a week) as a delivery driver for a florist at the same time that these examiners found "significant effects" of his service-connected left calf muscle gunshot wound injury and service-connected right foot shrapnel scars on his employability. Following a review of this evidence, the Board cannot conclude that the Veteran's service-connected disabilities, alone or in combination, precluded his employability prior to January 1, 2012. The Board observes here that, because the Veteran did not provide information to VA so that it could obtain his complete post-service occupational history from his former employers through VA Form 21 4192s, a complete occupational history can be obtained only from the medical records. Unfortunately, as noted elsewhere, the medical records show that he did not report his post-service employment history consistently or accurately to the VA clinicians who examined him for adjudication purposes prior to January 1, 2012. The inconsistencies in what the Veteran reported to different VA clinicians during this time period especially when compared to what he subsequently reported on his October 2018 VA Form 21-8940 (formal TDIU claim) undercut the probative value of what he reported to these clinicians concerning his post-service employment significantly. To the extent that his post-service employment history can be gleaned from a review of the medical records, it appears that he worked full-time in marketing or as a marketing consultant until approximately 2006 when he retired or stopped working full-time and then began working at least part-time (30 hours a week) until approximately 2012. More importantly, the Board finds that medical evidence shows that, prior to January 1, 2012, the Veteran's service-connected disabilities, alone or in combination, did not preclude his employability. For example, the May 2008 VA PTSD examiner concluded that there were no deficiencies in work due to the service-connected PTSD. This clinician further concluded that there was an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks due to PTSD signs and symptoms but with generally satisfactory functioning. The February 2010 VA PTSD examiner again concluded that there were no deficiencies in work due to PTSD signs and symptoms. This examiner also concluded that there was no occasional decrease in work efficiency or intermittent periods of an inability to perform occupational tasks due to PTSD signs and symptoms. This examiner further concluded that there were no PTSD signs and symptoms which were transient or mild and decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. This examiner finally concluded, "[The Veteran's] PTSD symptoms are not severe enough to interfere with occupational and social functioning." The Board recognizes that VA examiners who saw the Veteran in March 2010 concluded that his service-connected left calf muscle gunshot wound injury and his service-connected right foot shrapnel scars had "[s]ignificant effects" on his general occupation due to decreased mobility and pain. The Board does not doubt that the Veteran found each of these disabilities debilitating and painful when the VA examiners made the findings of "[s]ignificant effects" on his occupation. The Board notes that these examiners made these findings in the sections of the VA scars examination and VA muscle examination reports dated in March 2010 which addressed employability. It would have been reasonable for these examiners to find that the Veteran's service-connected left calf muscle gunshot wound injury and his service-connected right foot shrapnel scars, alone or in combination, precluded his employability in this section of each examination report. Neither of these examiners made this finding concerning the occupational impact of the service-connected left calf muscle gunshot wound injury and the service-connected right foot shrapnel scars on the Veteran's employability despite being given the opportunity to do so in each of these examination reports. The Court held in Delrio that the Board may use an examiner's silence as probative evidence against a TDIU claim where a section addressing employability is identified in the relevant examination report(s) and the Board finds that it would have been reasonable for the examiner(s) to address employability in this section of the report(s). See Delrio, 32 Vet. App. at 241. Because the Board has established the evidentiary foundation for finding an examiner's silence concerning employability probative evidence against a TDIU claim, it is permitted under Delrio to conclude that the silence of the March 2010 VA muscle examiner and March 2010 VA scars examiner demonstrates that the service-connected left calf muscle gunshot wound injury and service-connected right foot shrapnel scars, alone or in combination, did not preclude the Veteran's employability prior to January 1, 2012, and a TDIU is not warranted on that basis during that time period. The Board also recognizes that the Veteran's attorney submitted a November 2021 private employability evaluation from a vocational counselor in support of this appeal. The vocational counselor noted that the Veteran provided her with a detailed post-service employment history, stating that he was employed in management for a petroleum company from July 1999 to October 2006. "His service-connected PTSD caused him to frequently become irritated and angry with managers and staff." The Veteran also reported "difficulty understanding others both over the telephone and in person" while he was employed in this job. After this company was sold, the Veteran reported "pressure was put on him to leave, including by demoting him." He left this job 2 months after the new owners took over the company. He then was employed as a delivery driver for a florist from October 2006 to February 2012. This job became more stressful for him over time when "the florist became very busy and did not hire another driver...This caused tension between the Veteran and his employer. He also struggled at work, as his PTSD impacted his ability to sleep." He left this part-time job in February 2012 and had not worked since that time. The private vocational counselor concluded that the Veteran's service-connected PTSD, tinnitus, and left sensorineural hearing loss precluded his employability since February 2008. The rationale for this opinion was based on a review of the record evidence, including medical records and lay evidence. As the Court stated in Delrio, "the Board cannot uncritically adopt an examiner's assessment of the Veteran's level of disability as its own without reconciling that assessment with the other evidence of record." See Delrio, 32 Vet. App. at 243. In advocating repeatedly in submissions to the Board that the probative value of the November 2021 private vocational counselor's employability evaluation outweighs the remaining evidence of record, the Veteran's attorney appears to be suggesting that the Board "uncritically adopt" the November 2021 findings concerning employability without analyzing whether the record evidence as a whole supports granting a TDIU prior to January 1, 2012. The Board cannot reconcile the findings reached by the November 2021 private vocational counselor in light of the remaining medical evidence of record which does not support finding that the Veteran's service-connected disabilities, alone or in combination, precluded his employability prior to January 1, 2012. The Veteran provided the November 2021 private vocational counselor a different version of his alleged post-service employment history than what he provided to his VA treating clinicians in the time period prior to January 1, 2012. And this reported post-service employment history in November 2021 again differed substantially from the reported post-service employment history previously (and inconsistently) reported by the Veteran prior to January 1, 2012. He reported for the first time in November 2021 that "[h]is service-connected PTSD caused him to frequently become irritated and angry with managers and staff" and his service-connected left sensorineural hearing loss caused "difficulty understanding others both over the telephone and in person" while he was employed at a petroleum company between 1999 and 2006. He also reported for the first time in November 2021 that he left this job in 2006 due to unspecified pressure placed on him by new ownership, including a demotion, and not as a result of any occupational impairment due to a service-connected disability. He further reported for the first time in November 2021 that his service-connected PTSD impacted his job as a delivery driver for a florist because it "impacted his ability to sleep." When compared to what he reported to the VA clinicians who examined him prior to January 1, 2012, these inconsistencies in what the Veteran reported to the November 2021 private vocational counselor make it difficult for the Board to reconcile the findings reached by this counselor concerning the occupational impact of the Veteran's service-connected disabilities, alone or in combination, on his employability with the other record evidence. Critically, these inconsistencies also undercut the probative value of the employability determination reached by this private vocational counselor in November 2021. Despite the Veteran's assertions to the contrary, the record evidence does not support finding that his service-connected disabilities, alone or in combination, precluded his employability prior to January 1, 2012. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a TDIU prior to January 1, 2012. In summary, the Board finds that the criteria for a TDIU prior to January 1, 2012, have not been met. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.