Citation Nr: 22018797 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-50 498 DATE: March 30, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT For the period on appeal the Veteran has not been unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1989 to February 1995. This issue was previously remanded by the Board in October 2020 and December 2021. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. The Veteran seeks a TDIU based on the combined effects of his service-connected disabilities. The issue of entitlement to a TDIU was raised during the course of the Veteran's appeal for an increased rating for his posttraumatic stress disorder (PTSD). Therefore, the appeal period is from September 24, 2014, the effective date for the award of service connection for PTSD. See 38 C.F.R. § 3.400. A TDIU may be assigned when the schedular rating is less than total and a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that were service connected during the relevant period: PTSD, rated as 70 percent disabling from September 24, 2014; obstructive sleep apnea, rated as 50 percent disabling from October 27, 2017; gastroesophageal reflux disease (GERD), rated as 10 percent disabling from March 13, 2015; mixed demyelinating axonal neuropathy, right lower extremity (sciatic nerve), rated as 10 percent disabling from May 12, 2015; mixed demyelinating axonal neuropathy, left lower extremity (sciatic nerve), rated as 10 percent disabling from May 12, 2015; mixed demyelinating axonal neuropathy, left lower extremity (femoral nerve), rated as 10 percent disabling from May 12, 2015; mixed demyelinating axonal neuropathy, right lower extremity (femoral nerve), rated as 10 percent disabling from May 12, 2015; erectile dysfunction, rated as noncompensable from March 13, 2015; psoriasis, rated as noncompensable from March 13, 2015; and hypertension, rated as noncompensable prior to May 17, 2017 and from November 28, 2020, and 10 percent disabling from May 17, 2017 to November 27, 2020. The Veteran's combined rating was 70 percent from September 24, 2014, to May 11, 2015; 80 percent disabling from May 12, 2015, to May 16, 2017; and 90 percent disabling from May 17, 2017. Thus, the Veteran had at least one disability rated at 60 percent or more during the entire relevant period. Accordingly, the Board may consider the claim for a TDIU on a schedular basis for the entire period on appeal. 38 C.F.R. § 4.16 (a). The Veteran indicated on a VA Form 21-8940 he submitted in May 2021 that he worked full-time as a security guard from 2015 to 2021. He indicated that he became too disabled to work on February 25, 2020, due to his service-connected neuropathy and nonservice-connected arthritis and that he has a high school education with two years of college and no additional training. In an April 2021 VA treatment note, the Veteran reported that he works as security at the local hospital. In a March 2021 VA treatment record, the Veteran reported that he was transferred to a better job and is working a consistent shift. In a January 2018 VA treatment record, the Veteran reported that he was employed full time as data systems monitor for a pharmaceutical company. Additionally, in a February 2018 private treatment record, the Veteran reported that he has been employed since October 2014 for a security company as a data systems monitor, where he monitors a worldwide computer network to ensure that everything stays powered up. The Veteran reported on the VA Form 21-8940 that due to "complete neuropathy in legs and arthritic conditions in knees, hips, and hands [he] is unable to work full time." Her further reported that "[m]y body cannot handle the stress." Regarding physical limitations caused by the service-connected disabilities, the Veteran told a VA examiner during a May 2017 VA examination for his peripheral nerves that he has constant numbness and tingling in his upper extremities. He further reported constant numbness and tingling to his lower extremities. The Veteran reported difficulty gripping and picking up small objects such as coins. He further reported he is unable to walk greater than five minutes and is unable to stand in one place greater than three minutes or sit greater than 10 minutes without changing positions. The Veteran reported that the is unable to lift greater than 20 pounds. The VA examiner noted that the Veteran's peripheral nerve conditions does not impact his ability to work. In a June 2021 peripheral nerves conditions examination, the Veteran reported that he had numbness in his big toes that has started to progress up his feet and legs. The Veteran reported that he has trouble walking and has fallen multiple times. Regarding psychological limitations caused by the service-connected PTSD, in a January 2018 neuropsychological assessment, the Veteran reported that he tends to zone out and that he has trouble sustaining focus at work. He further reported that word-finding difficulties occur frequently. In a July 2016 statement, a licensed professional counselor noted that due to the Veteran's PTSD he would have an inability to maintain long-term employment. During a September 2014 mental disorders examination, the Veteran reported that he was recently fired because of panic attacks and could not hold a job. At a January 2015 VA examination, the Veteran reported that he has had approximately 20 full-time jobs since 1995 and that he typically left the positions for better money. The VA examiner noted PTSD symptoms of depressed mood, anxiety, chronic sleep impairment and disturbances of motivation and mood. At an August 2016 VA examination, the Veteran reported that he has had to change jobs due to his inability to walk far, and he cannot be around a lot of people. The VA examiner noted PTSD symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment and suicidal ideation. Upon examination, the Veteran's attention and concentration were good and there was no evidence of formal though disorder or psychosis. The Board affords great weight to the VA examiners' findings and opinions, and to the limitations provided by the Veteran's examiners. The examiners' based their assessments as to the functional impact of the Veteran's service-connected disabilities on in-person examination of the Veteran. The examiners are medical experts who have specialized knowledge of physical and psychological conditions and their impact on a patient's functional capacity. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). Based on the findings and opinions of the VA examiners, the Board finds that, due to his service-connected bilateral lower extremity neurological disabilities, the Veteran was limited to sedentary work that did not involve more than occasional climbing of stairs; more than rare bending and squatting; or walking more than five minutes at a time. In that regard, the Board notes that the term "sedentary" is defined for purposes of this decision as work that requires no more than 2 hours of standing and/or walking in an 8-hour workday and involves light lifting of no more than 10 pounds. Additionally, due to his service-connected PTSD, the Veteran was essentially limited to work that does not require extensive close communication with coworkers, supervisors, or the general public on an ongoing basis. With such an occupational profile, the Veteran would be able to perform work such as sorting, inspection, and/or assembly work, which are repetitive and predictable in nature, are mostly performed independently away from the public, and do not require ongoing training or other activities that would require close communication with coworkers or supervisors. In addition, the Board acknowledges that the Veteran's nonservice-connected disabilities may further limit his functioning such that he is unable to secure or follow a substantially gainful occupation. However, his nonservice-connected disabilities are not for consideration in determining whether he is entitled to a TDIU. When only his service-connected disabilities are considered, the Veteran is essentially limited to sedentary work, as defined above. With such remaining functional capacity, the Veteran would be able to perform the duties required for clerical work, inspection work, and assembly work. The Board has considered the Veteran's level of education, special training, and previous work experience. See 38 C.F.R. § 4.16. The Veteran has a high school education with two years college education during the relevant period. Such a level of education is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as sorting, inspection, or assembly work. The Board has also considered the Veteran's work history. He worked during most of the relevant period. The Board acknowledges that he has submitted evidence showing that he has been terminated from jobs or has resigned from jobs due to his service-connected PTSD and bilateral lower extremity neuropathy. However, the reasons for termination and for the Veteran resigning have been related to the amount of physical activity required or due to extensive interactions with the public. He has reported that he was able to work the night shift and as a data analyst because the work did not require extensive physical activity or customer interaction, which is consistent with the Board's finding that he would be able to secure and follow a job that does not require close communication with coworkers, supervisors, or the general public on an ongoing basis. The Board finds that the Veteran's job history during the relevant period, to include the fact that he lost jobs and resigned from jobs due to his PTSD symptoms and bilateral lower extremity neuropathy, does not show that he would be unable to secure or follow a job within the limitations described above. The Board has also considered the Veteran's reported limitations. The Board does not doubt that his service-connected disabilities limited his functional abilities during the relevant period. However, the Board relies on the limitations provided by the competent medical sources of record. Based on those limitations, the Board has determined that, during the relevant period, the Veteran was limited to simple, routine sedentary work that did not involve more than occasional climbing of stairs; more than rare bending and squatting; walking more than five minutes at a time; or close communication with coworkers, supervisors, or the general public on an ongoing basis. With such remaining functional capacity, the Veteran would be able to perform the duties required for sorting, inspection, or assembly work. As such, the evidence of record does not show that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities during the relevant period. The Board has duly considered the benefit-of-the-doubt doctrine. However, the evidence persuasively weighs against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Jack S. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.