Citation Nr: 22018680 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 15-39 676 DATE: March 30, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities are not shown to be of such nature and severity as to render him unable to secure and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for 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. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1989 to December 1992 and March 1994 to August 2014, with additional inactive service. This matter is before the Board on appeal from an August 2018 Department of Veterans Affairs (VA) rating decision. In February 2019 and September 2021, the matter was remanded for additional development. Entitlement to a TDIU rating is denied. A TDIU rating may be assigned when the veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability". Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice- connected disabilities on his ability to function. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities, which include: major depressive disorder and unspecified anxiety disorder (rated 50 percent); asthma (30 percent); bilateral plantar fasciitis with degenerative arthritis (10 percent prior to September 1, 2014, and 30 percent from that date); left shoulder acromioclavicular joint osteoarthritis (20 percent); right shoulder acromioclavicular joint osteoarthritis (20 percent); right shoulder dislocation (20 percent); right hip impairment (0 percent prior to February 13, 2021, and 20 percent from that date); left ankle degenerative arthritis (10 percent); gastritis with GERD and hiatal hernia (10 percent); left ankle instability (10 percent); left hip osteoarthritis (0 percent prior to April 4, 2018, and 10 percent from that date); right ankle degenerative arthritis (10 percent); pinguecula with retinal plaque (0 percent); left ear hearing loss (0 percent); allergic rhinitis (0 percent); hypertension (0 percent); internal or external hemorrhoids (0 percent); left ankle scars (0 percent); inguinal hernia residual scar (0 percent); right shoulder residual scars (0 percent); tension headaches (0 percent); right hip limitation of extension (0 percent); and right hip limitation of flexion (10 percent prior to February 13, 2021, and 0 percent from that date). The combined rating is 90 percent rating prior to April 4, 2018; and 100 percent from that date. As the schedular rating requirement for TDIU in 38 C.F.R. § 4.16(a) are met, the analysis turns to whether the service-connected disabilities rendered the Veteran unemployable. The Veteran has not worked full-time for certain extended periods during the period for consideration. However, this of itself does not establish that the service-connected disabilities render him unemployable. On April 2015 VA examinations, the examiner opined that the Veteran's left hip disability and bilateral ankle disabilities, bilateral shoulder disabilities, asthma, and tension headaches impact his ability to perform occupational tasks due to pain with long standing and walking, pain with overhead lifting and carrying over 25 pounds, getting winded with physical activity, and decreased focus and concentration, respectively. The examiners opined that the Veteran's gastritis, GERD, and hiatal hernia; hemorrhoids; hypertension; allergic rhinitis; and left ear hearing loss do not impact his ability to work. On April 2015 VA mental disorders examination, the examiner opined that the Veteran's major depressive disorder and unspecified anxiety disorder result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In a November 2015 response to a request for employment information, the Veteran's then-employer stated that he worked 24 hours weekly as a psychiatric clinical nurse specialist, with no time lost during the previous 12 months and no concessions made by reason of age or disability. The employer stated that the Veteran's employment had begun in January 2015, and his yearly earnings to date were $56,924. On April 2016 VA examination, the examiner opined that the Veteran's left shoulder disability impacts his ability to perform occupational tasks because when he has a flare-up during work, he is uncomfortable. In a January 2017 application for a TDIU rating, the Veteran stated that his service-connected psychiatric disability prevents him from securing or following any substantially gainful occupation. He asserted that it affected his full-time employment in January 2017, he became too disabled to work in January 2017, and he last worked full time in February 2017. He reported working 24 hours weekly in health care from January 2015 to February 2017, earning up to $4200 per month; he stated that he suffered and struggled but did not take time off. He stated that his total earned income over the previous 12 months was $107,000. He stated that he had just left his job because it became too much to deal with his own anxiety and depression while trying to work in health care. He reported he has a college education and additional education as a psychiatric nurse practitioner. He stated that he was in medical school beginning in 2014 but he had to quit and did not complete it. In a June 2017 application for a TDIU rating, the Veteran stated that his service-connected psychiatric disability prevents him from securing or following any substantially gainful occupation. He asserted that it affected his full-time employment in January 2017, and he became too disabled to work in February 2017. He cited safety in stating that as a psychiatric nurse practitioner prescribing psychiatric drugs to patients, it became increasingly difficult for him while trying to deal with his own mental health issues, and so he resigned. In a June 2017 response to a request for employment information, the Veteran's former employer (a community mental health center) stated that he worked 8 hours daily, 24 hours weekly, with no time lost due to disability during the 12 months preceding his last date of employment, as a psychiatric prescriber; he provided psychiatric assessments, medication monitoring, client and family psycho-education, and case consultations. The employer stated that the Veteran's employment had begun in January 2015 and ended in February 2017, and the amount earned during the 12 months preceding his last date of employment was $67,139.53. The employer stated that the reason for termination of employment was voluntary resignation. On January 2018 VA audiological examination, the examiner opined that the Veteran's left ear hearing loss did not impact the ordinary conditions of daily life, including the ability to work. In an April 2018 application for a TDIU rating, the Veteran stated that his service-connected bilateral shoulder disabilities, left ankle disability, bilateral foot disability, and left hip disability prevent him from securing or following any substantially gainful occupation. He asserted that they affected his full-time employment and he became too disabled to work in March 2018. He stated that it became too painful doing his job as a nurse practitioner. On May 2018 VA examination, the examiner opined that the Veteran's bilateral shoulder disabilities impact his ability to perform occupational tasks in that he is limited in his ability to perform heavy and repetitive lifting, especially overhead. On July 2018 VA examination, the examiner opined that the Veteran's left hip and bilateral foot disabilities impact his ability to perform occupational tasks in that he is unable to do prolonged walking and standing. On November 2018 VA examination, the examiner opined that the Veteran's bilateral shoulder disabilities impact his ability to perform occupational tasks in that he is unable to do overhead work or lift heavy items. On February 2021 VA examination, the examiner opined that the Veteran's right hip disability impacts his ability to perform occupational tasks in that he would frequently be able to walk or stand, he would occasionally be able to run or climb stairs, and he would never ben able to squat or kneel. On March 2021 VA examination, the examiner opined that the Veteran's allergic rhinitis does not impact his ability to work as it is well-controlled with medication, and it has no effect on sedentary employment; the examiner opined that the Veteran should not work outside because allergies to cold and seasonal allergens could trigger asthma attacks. The examiner opined that GERD sometimes impacts the Veteran's ability to work, because when he has a flare-up he has to be near a bathroom due to urgency and diarrhea; it has no effect on sedentary employment or manual labor, if he can be near a bathroom during flare-ups. The examiner opined that gastritis keeps the Veteran awake at night sometimes due to stomach pain, and he then struggles to function the next day; he does report to work the next day, but is less focused as an RN, but it has no clear effect on sedentary or manual employment. The examiner opined that the Veteran's asthma requires him to keep an inhaler with him at all time and he cannot work outside in cold weather or allergy season; it has no effect on sedentary employment. The examiner opined that hypertension has no impact on the Veteran's sedentary or manual employment. The examiner opined that the Veteran's headaches prevent him for scheduling himself more often as a per diem nurse, but he does not ever call out sick due to headache; it has no clear effect on sedentary or manual employment. The examiner opined that the Veteran's feet and ankle disabilities impact his work because they flare up every day that he has a working nurse shift, so he limits the number of shifts that he takes, because he knows they will be painful by end of shift; they have no effect on sedentary employment, but physically they limit him from taking numerous long nursing shifts where he has to be on his feet for more than 8 hrs a day. On March 2021 VA mental disorders examination, the Veteran reported that he has been working as a registered nurse per diem twice per week since 2017 and has good job performance; however, if he gets busy, he becomes flustered and has difficulty concentrating. The examiner opined that the Veteran's psychiatric disability results in occupational and social impairment with reduced reliability and productivity. The examiner opined that the Veteran has a depressive episode twice per year, lasting 2 months with not being motivated to get out of ed or go to work, and he feels anxious most days of the week with shakiness and restlessness, irritability, muscle tension, and poor motivation, interest, energy, concentration, and sleep; he has decreased work productivity due to these symptoms. In a March 2021 Rehabilitation Needs Inventory, the Veteran stated that he was changing careers and had to do an unpaid apprenticeship and then a low paying residency. He stated that he had graduated from medical school and would need financial support through apprenticeship and residency. He stated that he left his part-time job at the community mental health center in February 2017 in order to complete medical school, and he had been working full time as a nurse practitioner at a different hospital since 2019. In April 2021, the Veteran submitted his curriculum vitae (noted to have been updated in March 2021), which indicated that he had completed medical school in June 2019 and was currently applying for residency. Under civilian (postservice) work experience, he stated that after leaving his position at the community mental health center in February 2017, he was a medical student, an inpatient psychiatric nurse practitioner, and a per diem psychiatric nurse practitioner from February 2017 to May 2019; he had been working as an inpatient and outpatient psychiatric nurse practitioner since July 2019. VA examiners have opined that the Veteran's service-connected asthma, headaches, gastritis with GERD and hiatal hernia, and disabilities of the bilateral feet, ankles, shoulders, and hips, impact his ability to engage in certain physical types of work that include prolonged walking and standing, overhead work, repetitive or heavy lifting, or working outside during cold or allergy season, and he would need to be near a bathroom during flareups of his gastrointestinal disability. An April 2015 VA examiner opined that the Veteran's major depressive disorder and unspecified anxiety disorder results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation; and a March 2021 VA examiner opined that the psychiatric disability results in occupational and social impairment with reduced reliability and productivity. The Board acknowledges that, as shown by medical records and treatment providers' and examiners' opinions, the service-connected disabilities would prevent the Veteran from participating in certain types of employment (those requiring significant or prolonged walking, lifting, extensive physical activity, working outside during cold or allergy season, or significant interaction with others). However, nothing in the record suggests that the service-connected disabilities alone (not considering factors such as the aging process or nonservice-connected disabilities) would preclude him participation in regular substantially gainful employment on a regular, full-time basis in the types of occupations that are not impacted by such limitations (such as his nurse practitioner job). Notably, no VA examiner has opined that service-connected disabilities preclude employment or render him unemployable at any time; indeed, the examiners opined that the Veteran was able to perform sedentary (which the Board interprets as mostly performed seated, but allowing for short standing and walking) and some physical tasks. The overall disability picture presented suggests that the symptoms and impairment associated with the Veteran's service-connected disabilities would likely preclude work in occupations that require strenuous physical labor/prolonged standing, sitting, or walking (based on the Veteran's reports) or any significant interpersonal interaction with co-workers and supervisors. The service-connected disabilities are not shown to be such that due to the disabilities he would be precluded from participating in the types of work that do not require significant interpersonal relationships with co-workers or supervisors, substantial physical exertion/lifting, or prolonged standing, but can be performed seated or seated with some limited standing/walking. Examples of such work (consistent with his curriculum vitae and his occupational experience) would include the nurse practitioner work he has performed for various periods throughout the appeal period, during which he was also able to complete medical school. There is nothing in the record suggesting he would be incapable of engaging in such forms of employment if they did not require significant interpersonal relationships (and many such types of employment can be done from home/using electronic devices). The Board has considered the Court's guidance in Bowling v. Principi, 15 Vet. App. 1 (2001). However, the facts here are distinguishable from Bowling. In Bowling, the Court noted there was a plausible basis in the record for a conclusion that the veteran was unable to secure and follow a substantially gainful occupation due to a service-connected disability. Here, unlike Bowling, the Veteran has not submitted supporting evidence of unemployability due to service-connected disability at any time. In summary, the overall record does not show or suggest that due to his service-connected disabilities, alone, the Veteran was rendered unable to obtain and maintain substantially gainful employment consistent with his education and work experience. The Board has considered his statements in support of the appeal, and acknowledges that due to his service-connected disabilities he clearly had some work limitations, and that his physical functional impairment limited the scope of his occupational opportunities. The Board has no reason to question those accounts. However, many types of substantially gainful (more than marginal) regular employment (including full-time employment in the type of work he has participated in during the appeal period, as a nurse practitioner) remained within his capabilities, despite limitations from his service-connected disabilities. The Board is unable to find that the Veteran is shown to be precluded from engaging in regular substantially gainful employment due to his service-connected disabilities alone. It is especially important to note that the Veteran was employed gainfully until about 2018, and then has since completed an advanced program, i.e. medical school, demonstrating his ability to cognitively and physically complete rigorous study and thus, normal employment conditions. Considering the foregoing, the Board finds that the evidence is persuasively against this claim. Accordingly, the appeal in this matter must be denied. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.