Citation Nr: 24009586 Decision Date: 02/28/24 Archive Date: 02/28/24 DOCKET NO. 16-38 619 DATE: February 28, 2024 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 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 in the United States Army from August 1968 to August 1970. This matter comes to the Board of Veterans' Appeals (Board) from a May 2016 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In this case, the Veteran submitted a claim for TDIU in February 2016. The VA denied the Veteran's claim in a May 2016 rating decision. The Veteran timely appealed to the Board, and the Board remanded the Veteran's claim in a June 2021 decision for extraschedular consideration by the Director of the Compensation Service (Director), pursuant to 38 C.F.R. § 4.16(b). On remand, the VA again denied the claim, and issued a September 2021 Supplementary Statement of the Case (SSOC). The claim has now been returned to the Board. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. The Veteran's service-connected disabilities are other specified trauma and stressor related disorder (previously diagnosed as posttraumatic stress disorder), tinnitus, and hearing loss. See August 2021 VA rating decision codesheet. The VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Ordinarily, entitlement to TDIU requires a Veteran to show that he or she is unemployable as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Regardless, it is the established policy of VA 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. Thus, in any case where the Veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director for extra-schedular consideration under 38 C.F.R. § 4.16 (b). For a Veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other Veterans who meet a less-than-total schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is itself recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, considering his or her service-connected disorders, can perform the physical and mental acts required by employment, not whether he or she can find employment. 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. 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Geib v. Shinseki, 733 F.3d 1350 (2013), the Federal Circuit held that VA's duty to assist did not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities. "Indeed, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Id. at 1354. The June 2021 Board Decision contained the following remand directives: 1. "Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran should be notified. 2. "Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. "Refer the Veteran's claim for TDIU to the Director of Compensation for extraschedular consideration. 38 C.F.R. § 4.16(b). 4. "After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response." The VA sent the Veteran a VA Form 21-4142a (General Release for Medical Provider Information to the VA) in September 2021. The VA also contacted the Veteran by telephone in September 2021 to alert him to the correspondence, and learned from the Veteran that there were no such records. This satisfies remand directive 1. The VA associated VA treatment records from 2017 to 2021 with the Veteran's claims file, satisfying remand directive 2. The VA referred the Veteran's claim to the Director for extraschedular consideration and received the Director's final decision on extraschedular consideration in September 2021, satisfying remand directive 3. The VA readjudicated the claim and issued an SSOC to the Veteran and his representative in September 2021. The VA notified the Veteran in October 2021, 30 days later, that his claim was being returned to the Board. The VA received the Veteran's response to the SSOC in January 2022, as discussed further below. This satisfies remand directive 4. The Veteran states that he did not receive notice from the VA that his TDIU claim had been denied, dated September 29, 2021, until November 4, 2021, six days after his claim was returned to the Board. See January 2022 Statement in Support of Claim. The Board notes that the September 2021 SSOC was mailed to the proper address, and that the Veteran's representative was also sent a copy. It is unclear whether the Veteran intends to argue that he was not afforded sufficient time to respond to the September 2021 SSOC, as mandated by the June 2021 Board decision, or that he was otherwise not afforded sufficient notice in a manner that would require remand. As stated above, the VA did not return the Veteran's claim to the Board until 30 days after the date the September 2021 SSOC was mailed to the Veteran and his representative. The Board finds that this is an "appropriate period of time" for a response, as mandated by remand directive 4. To the extent the Veteran contends that the VA did not fulfill its duty to notify the Veteran of its actions, the Board disagrees. The Veteran states that he expected a new VA examination after the June 2021 Board decision, and requests that a new VA examination be arranged because the information contained in the medical evidence of record is outdated. See January 2022 Statement in Support of Claim. He further argues, through his representative, that the Director erred in relying on "conflicting medical opinions regarding the impact of the Veteran's PTSD on his employability" without obtaining an independent expert medical opinion to reconcile them. See January 2024 Informal Hearing Presentation. The Veteran specifically argues that he has never received a VA examination or medical opinion that solely addresses the impact of his service-connected disabilities on employability. See January 2024 Informal Hearing Presentation. However, the June 2021 Board decision did not order the VA to arrange a VA examination. Nor did the VA obtain any evidence while fulfilling the June 2021 Board decision's remand directives that indicated that a new VA examination was necessary-indeed, the Veteran stated that there were no private treatment records related to his TDIU claim, and none of the VA treatment records associated with the file after the June 2021 Board decision addressed the Veteran's service-connected disabilities. The Veteran does not state that his service-connected conditions have gotten worse, just that the "medical [evidence] is outdated." January 2022 Statement in Support of Claim. Nor does the Veteran's representative argue that his service-connected conditions have gotten worse; rather, the Veteran's representative argues that a new VA examination is warranted to reconcile conflicting medical opinions, and because "the Veteran hs never received a VA examination or medical opinion to solely address the impact of his service-connected disabilities on employability." January 2024 Informal Hearing Presentation. The "mere passage of time" does not automatically render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). In Palczewski, the Court noted that the Veteran did not submit additional evidence showing a change in his condition nor did he allege during his hearing that the condition had worsened. Further, the Court noted a factor to consider was whether the submission or identification of additional lay or medical evidence raised the question of whether the medical evidence of record was sufficient to render a decision on the claim. Palczewski, 21 Vet. App. at 183. The Veteran's claim is like the Palczewski claim in this regard. Further, the Board notes that the Veteran has received a VA examination that focused on the impact of his service-connected disabilities on employability: the March 2016 VA examination request asked the examiner to opine on "the effect of the Veteran's service-connected disabilities on [his] ability to function in an occupational environment and [to] describe any identified functional limitations." March 2016 VA examination. Further, each of the VA examinations in evidence discussed the functional limitations imposed by the Veteran's service-connected disabilities. Therefore, the Board finds that a new VA examination is not warranted, either due to the passage of time or to address the impact of the Veteran's service-connected conditions on his employability. The Board now turns to the evidence: The Veteran attended a January 2014 VA examination for hearing loss and tinnitus. The Veteran stated that his hearing loss made it difficult to hear when there is background noise, but that his tinnitus did not impact his daily life. See January 2014 VA hearing loss examination. The Veteran also attended a VA PTSD examination in January 2014. At that examination the Veteran stated that he holds an associate's degree and has completed additional coursework since completing that degree. See January 2014 VA examination. From 1986 to 2014, the Veteran owned his own business installing and repairing irrigation systems. As of 2014, his business employed between six and ten other people, one of whom was the Veteran's son. He reported that "[w]ork [was] going well. He [got] along with customers and is a reliable worker. [He was] thinking of retiring next year." See January 2014 VA examination. The Board notes that this VA examination is outside the period on appeal, pre-dating the Veteran's claim by 13 months. However, as discussed further below, the Veteran contends that his disabilities made the final two years of his employment so difficult that he felt he had to retire. Therefore, the Board assigns great probative weight to the Veteran's statements reported in the January 2014 VA examination for the purpose of determining the degree of limitation imposed by the Veteran's disabilities in the final year he worked full-time. The Veteran attended an October 2015 VA PTSD examination, at which he reported that he retired in December 2014, letting one of his sons take over his business. He stated that he had not sought part-time employment since his retirement, and was still adjusting to his retirement. He noted that his retirement left him with more unstructured and poorly focused time in his day, which coincided with an increase in PTSD-related memories and symptoms. Since retirement, the Veteran noted that he had spent some of his time doing repair work around his house, and playing golf with his friends. The Veteran did not state any particular reason he had retired. See October 2015 VA examination. The Board assigns great probative weight to the Veteran's statements as reported in the October 2015 VA examination for the purpose of determining the degree of limitation imposed by the Veteran's disabilities four months before he filed his claim for TDIU. In his February 2016 application for TDIU, the Veteran stated that he had attempted to do part-time work as a consultant but could not handle the stress. See Application for TDIU, see also March 2016 VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). The Veteran attended a March 2016 PTSD examination, where he stated that the reason for his retirement was difficulty managing the stress of his business, and difficulty relating to customers and employees. As he did in October 2015, the Veteran noted that he was spending some of his time in retirement doing work around his house and his children's houses, specifically refinishing a porch and repainting. The Veteran reported that he often remembers his time in active service, but that he more often recalled the daily routine from service than he did any particular traumatic event. He noted that these memories do not interfere with his activities, and that he "can keep on doing what [he] was doing." See March 2016 VA examination. The March 2016 examiner was also asked to opine on the effect of the Veteran's service-connected mental health disability on employability. The examiner stated that the Veteran's report of his activities and functioning led the examiner to believe that his "mental health symptoms... do not appear sufficiently severe that they would interfere with his ability to maintain good attendance in an occupational role, and do not appear likely to substantially impair his ability to complete tasks or ability to engage effectively with other people in an occupational environment." March 2016 VA examination. The VA obtained an addendum opinion in April 2016 from the examiner who conducted the March 2016 VA examination. That opinion was primarily focused on reconciling conflicting medical opinions regarding the appropriate diagnosis and rating for the Veteran's mental health disability. The examiner noted, however, that the Veteran had no history of psychopharmacotherapy, psychotherapy, or counseling, either at the VA or elsewhere, per the Veteran's report and VA treatment records. Further, the Veteran's VA treatment records for the previous two years did not report impairments due to mental health disabilities, and reported that the Veteran was enjoying his retirement. See April 2016 addendum opinion (quoting VA treatment records from March 2016 and the VA examinations from January 2014 and October 2015). The examiner did not revise the opinions he stated in the March 2016 VA examinations. The Board assigns great probative weight to the Veteran's statements of his own activity in the March 2016 VA examination for the purpose of determining the functional limitations imposed by his disabilities at that time. The Board notes the conflict between the Veteran's March 2016 statements regarding his difficulty handling stress during the final year of his full-time employment and the reason for his retirement, and the Veteran's January 2014 statements that work was going well and that he got along well with customers. The Board finds that the Veteran's earlier statement about work going well to be more credible about the Veteran's then-current assessment of his work experience than the statements provided over a year after retirement. However, the Board acknowledges that the Veteran could have had difficulty handling stress at work, as he later stated, while also believing at the time that work was going well. In light of this contradiction, the Board assigns moderate probative weight to the March 2016 statement regarding his work difficulties and reason for retirement. The Veteran attended a January 2017 VA PTSD examination. He stated that he continued to spend his time doing handy work around his home and his children's homes. He reported that he had become less patient and more agitated in "trivial" situations. He reported that this agitation was part of the reason he retired in December 2014, because he was not able to manage his frustration around customers, but he now spends more of his time on his own or around other people he is comfortable with. The examiner stated that the Veteran's mental health symptoms result in "mild functional impairment in areas such as ability to cope with stress and maintain stable mood/motivation. The Veteran's symptoms are not likely to impact the Veteran's ability to function in an employment setting at this time given that he was able to maintain full-time employment without any noted difficulties until he retired 2 years ago." See January 2017 VA examination. The Board assigns moderate probative weight to the Veteran's January 2017 statements regarding his work difficulties and reason for retirement for the same reasons articulated above about the March 2016 statements to the same effect. The Board finds the examiner's assessment regarding the functional impact of the Veteran's symptoms in a work environment to be consistent with the rest of the evidence of record and assigns it great probative weight. The Veteran attended an August 2017 VA PTSD examination. He stated that he liked to play golf with his friends on a weekly basis and enjoyed doing carpentry and woodworking at his home and the homes of his two sons. He stated that the reason he retired was that he had lost enthusiasm for his work. For the final two years of his full-time employment, he "no longer liked his clients or his staff.... [T]hey were younger than him. He could not relate to them. He could not wait to retire in 2014." He stated that he was suspicious of younger people. The examiner stated that the Veteran's chronic fatigue, flashbacks, irritability, startle response, and difficulty focusing attention "would make work, either physical or sedentary, difficult for" him. August 2017 VA examination. The Board notes a more direct contradiction between the Veteran's January 2014 statement that work was going well, and that he liked his clients, and the August 2017 statement that he had lost enthusiasm for hs work and no longer liked his clients. The Board assigns moderate probative weight to the Veteran's statements regarding the last two years of his full-time work for the same reasons stated above for the October 2015 and March 2016 statements. The Board assigns great probative weight to the Veteran's statements regarding his continued post-retirement activities. The August 2017 examiner's opinion that the Veteran's mental health disability would make work difficult for him is the strongest evidence of record to support the Veteran's claim. However, the Board notes that the August 2017 examiner did not state that the Veteran's disabilities preclude employment. Indeed, the August 2017 examiner summarized the Veteran's degree of impairment as "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." August 2017 VA examination. The Board notes that there is evidence to suggest that the Veteran has continued to do some part-time work at his former workplace since he retired and let his son take over. See April 12, 2016 VA Occupational Therapy note ("Pt reported left wrist pain... that began soon after he was assisting his former co-workers installing an irrigations system which was the Veteran's former line of work, but has since retired for the past year"); May 15, 2017 VA primary care note ("Patient... was helping his son at work last week and noticed that the pain [in his right shoulder] was much worse."). In sum: the Veteran started his own business nad maintained it for twenty-seven years. During the last year of his full-time employment, the Veteran reported that business was going well, that he liked his customers, and that he began planning his retirement at least eleven months in advance. During the period on appeal, the Veteran has engaged in marketable physical labor at his home and the home of his children. There is evidence to suggest that some portion of this labor is at the business he retired from. Although at worst, his disabilities make interacting with people in a workplace setting difficult, particularly people younger than the Veteran, he nonetheless enjoys socializing with his friends. The Veteran has not sought treatment for his mental health disability, which the Veteran contends is the primary reason he is no longer able to work. Yet, by the Veteran's own statement, he can "keep on doing what he is doing" in the face of his mental health symptoms. March 2016 VA examination. One examiner stated, in August 2017, that the Veteran's disabilities would make work difficult. However, a disability making work difficult is not the same thing as a disability precluding work altogether. Further, the January 2017 and March 2016 examiners both concluded that the Veteran's disabilities would not preclude employment. The Veteran's hearing loss may cause further difficulties hearing in environments with background noise, but there is no evidence to show that this would preclude employment. (continued on next page) ? The evidence persuasively shows that the Veteran's service-connected disabilities do not preclude him from obtaining or following substantially gainful employment. Therefore, entitlement to a total disability rating based on individual unemployability is denied. B. D. WATSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sparks, Robert S. 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.