Citation Nr: A25102403 Decision Date: 11/25/25 Archive Date: 11/25/25 DOCKET NO. 250210-523328 DATE: November 25, 2025 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 posttraumatic stress disorder (PTSD) does not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1985 to March 1987. In October 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a November 2022 decision. In February 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior November 2022 decision. In the February 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the November 2022 AOJ decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to a TDIU The Veteran contends that his service-connected PTSD prevents him from securing or following a substantially gainful occupation. The TDIU claim was raised during the pendency of the Veteran's appeal for an initial increased rating for PTSD pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the period on appeal begins January 21, 2016. It is established VA policy 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. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a), 4.15. If the total rating is based on a disability or combination of disabilities for which the rating schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). A total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). However, even if the percentage requirements of 38 C.F.R. § 4.16(a) are not met, consideration of a TDIU on an extraschedular basis is warranted in all cases of veterans who are unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Ray v. Wilkie, 31 Vet. App. 58 (2019). The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the conclusions of VA examiners are not dispositive. However, the observations of the examiners regarding functional impairment due to service-connected disability go to the question of physical or mental limitations that may impact the veteran's ability to obtain and maintain employment. The Veteran is currently service-connected for PTSD, which is rated 30 percent disabling from January 21, 2016, and 70 percent disabling from April 22, 2022. Although the Veteran meets the threshold percentage requirements for a schedular TDIU pursuant 38 C.F.R. § 4.16(a) since April 22, 2022, prior to this date he does not. Nonetheless, the question before the Board remains the same for both periods, which is whether the Veteran is precluded from obtaining or maintaining a substantially gainful occupation as a result of his service-connected PTSD. In his July 2022 VA Form 21-8940 Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full time in 1990 in construction and manufacturing. He has a high school diploma. He contends that he is unemployable due to symptoms of PTSD, including memory loss, severe sleep impairment, and anxiety. He reported that these symptoms would impact his ability to hold a steady job, maintain work relationships, and perform job tasks. The record indicates that the Veteran was incarcerated from 1991 to 2014, at which time he was transferred to a secure treatment center where he remained until he was released in the community on supervised release in July 2020. He lived independently in a half-way house until March 2021 when rule violations resulted in the revocation of his supervised release. He has remained held in the secure treatment center ever since. According to a March 1992 VA examination report, the Veteran held a number of odd jobs in the few years between his 1987 discharge from service and his 1991 arrest, including working in a mill, a factory, and a ranch. The Veteran reported at that time that he lost each job due to injuries incurred both on and off the jobs. The record contains voluminous mental health treatment notes throughout the appeal period due to the Veteran's incarceration at a treatment center where he receives intensive treatment for his diagnoses of pedophilic disorder and other specified paraphilic disorder. In an April 2016 psychiatric progress note, the Veteran's PTSD was noted to be in substantial remission with his PTSD-type symptoms causing no significant disability, though he continues to have traumatic dreams about once per week and occasional intrusive thoughts around certain anniversary-type events. The treating psychiatrist noted that the Veteran does not have active symptoms of hyperarousal, hypervigilance, exaggerated startled response, or emotional numbing. His ability to interact and relate to others is satisfactory to good and it was noted that he is an enthusiastic member of several organized sports teams at the center. On mental status examination, the Veteran was noted to be neatly groomed, well-oriented, pleasant in affect, with appropriate thought process, normal speech and language, normal psycho-motor activity, and average cognitive functioning. Progress notes from June 2016, September 2016, and April 2017 contain much of the same observations, with it being noted that the Veteran displayed good coping strategies after the recent death of his father. As noted above, the Veteran was released in the community on supervised release from July 2020 to March 2021. During this time, he had regular sessions with a social worker and a case manager, who always found the Veteran to be cooperative, friendly, and insightful with stable mental status. He did not present as anxious or depressed, or with any signs or symptoms of self-harm, suicidality, or homicidality. His thoughts were noted to be logical and goal-directed, without signs of psychotic process. The social worker noted that he was engaged in treatment, exhibited a good sense of humor, and was receptive to feedback. He was independent of all activities of daily living. The Veteran often reported an eagerness to seek employment once permitted by the terms of his release. He endorsed continuing to experience PTSD symptoms such as sleep impairment, nightmares, and startled response. The notes indicate that the Veteran's sister is a strong social support for him and she is actively engaged in his treatment and rehabilitation plans. The case manager noted that the Veteran is in the high average range of intellectual functioning and he is able to problem solve potentially complex matters with relative ease. Moreover, it was reported that he has no difficulties with verbal communication and is easily able to focus and sustain interest during an hour-long session conducted via telephone. The Veteran also received treatment through VA during his period of supervised release, including psychotherapy. These notes indicate that the Veteran was always found to be oriented to person, place, time, and situation; he was calm, cooperative, and engaged with his treatment; his thoughts were logical, organized, and goal-oriented; with normal speech, affect, mood, and memory. One such note states that the Veteran could maintain a conversation for 45 minutes without derailment of thought. There was no evidence of perceptual disturbance or suicidal or homicidal ideation. The Veteran routinely endorsed ongoing PTSD symptoms of sleep impairment, nightmares, and intrusive memories. His symptoms of depression were always documented to be mild. The Veteran was noted to be a talented artist and he reported that he was "paid well" for his artwork. The Veteran was afforded a VA PTSD examination in April 2022. The examiner wrote that: "The Veteran reports [his] most frequent symptoms are night terrors, nightmares, and disrupted sleep. [He] reports severe and frequent re-experiencing symptoms [and] his primary strategy for coping with these symptoms is sleep deprivation until he "passes out" from exhaustion. [The Veteran] was jittery and jumpy while sharing this information [and] suddenly jerked his head to the side anytime he suspected a motion or sound. [The Veteran] struggles with standing in line and being paranoid and getting agitated when people are behind him. [His] most prominent symptoms are PTSD-related [and] he is easily triggered by any reminders of [his PTSD] stressor." The examiner specifically wrote that the Veteran denied issues of panic, anxiety, irritability, rage, or depression, but did report some issues with memory loss. However, on the symptoms checklist, the examiner marked off the following symptoms: depressed mood, anxiety, suspiciousness, mild memory loss, impairment of short and long term memory, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, grossly inappropriate behavior, and persistent danger of hurting self or others. On examination, the Veteran was oriented to person, place, and time, and was cooperative and polite. He arrived 20 minutes late for the virtual appointment and appeared disheveled. The examiner determined that the Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity. The Veteran underwent another VA examination in August 2022. The Veteran reported that he is minimally socially active and he works one hour per day cleaning showers. He participates in group therapy once per week for two hours. The Veteran endorsed the following symptoms: depressed mood, anxiety, suspiciousness, near-continuous depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, nightmares, mild memory loss, such as forgetting names, directions or recent events, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. The examiner noted that the Veteran was oriented to time, place and person, and he was cooperative and logical at all times. The examiner determined that the Veteran's PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. In a March 2025 vocational assessment, a private vocational consultant, who reviewed the Veteran's claims file and spoke to him by telephone, opined that it is more likely than not that the Veteran has been unable to secure and follow substantially gainful employment, including unskilled sedentary employment, as a result of his service-connected PTSD from at least January 21, 2016. However, the examiner noted that "the Veteran does not have any substantially gainful employment history since his time in the service due to his inability to perform job duties because of his service-connected PTSD." The examiner did not mention or discuss the fact that the reason the Veteran has not been gainfully employed is because he has been incarcerated in prison and a mental health treatment center since 1991, which is seemingly very pertinent information as to the Veteran's work history and employability. The examiner noted that the Veteran's symptoms of PTSD include recurrent memories, hypervigilance, startled response, and chronic sleep impairment, which results in daytime fatigue, memory impairment, and poor concentration. She also noted that he has difficulty working with others due to fear of physical and verbal altercations. Due to these symptoms, the examiner concluded that the Veteran is precluded from satisfying most, if not all, of the basic requirements of employment, to include even sedentary employment. The examiner did not explain why sedentary employment is precluded when there is no evidence that the Veteran's PTSD causes physical impairments, such as limitations on walking or standing or lifting more than 10 pounds. After careful review of the medical and lay evidence of record, the Board finds that the evidence weighs against finding that the Veteran's service-connected PTSD renders him unable to secure and follow a substantially gainful occupation. In making this finding, the Board has found the Veteran's extensive mental health treatment records and supervised release case management notes to be the most probative evidence as to the question of his occupational and social functioning. These records are detailed, written by people who know the Veteran and interact with him frequently, and show a consistent pattern of symptoms, behaviors, and mental status. These records consistently show that the Veteran is well-oriented, articulate, personable, cooperative, and highly engaged with his treatment plan. It is clear from these records that the Veteran's PTSD is mild in severity and manifests primarily by symptoms of chronic sleep impairment with daytime fatigue, nightmares, intrusive memories, and startled response. There is no evidence of anxiety, depression, panic attacks, delusions, or propensity for self-harm. There is also no evidence in these records that the Veteran is significantly socially impaired or has difficulty establishing and maintaining effective relationships due to his PTSD. In fact, the records show that the Veteran has maintained long-term and ongoing working relationships with his therapists, social workers, and case managers, and maintains a close relationship with his sister. He has also successfully participated in organized team sports at the secure treatment center. The Board acknowledges the April 2022 and August 2022 VA examination reports, as well as the March 2025 private vocational assessment, which contain evidence of more severe symptoms of occupational and social impairment. However, these reports are significant in that they do not comport with the foregoing contemporaneous treatment records and do not appear to differentiate between the symptoms and impairments caused by the Veteran's PTSD and his nonservice-connected pedophilic disorder and other specified paraphilic disorder. Notably, the April 2022 examination report is internally inconsistent. The examiner wrote that the Veteran denied issues of anxiety and depression, but then marked that the Veteran has symptoms of depressed mood and anxiety. The examiner also wrote that the Veteran exhibits grossly inappropriate behavior and persistent danger of hurting self or others; however, there is no evidence of this in the record as due to PTSD. Any inappropriate behavior and persistent danger of hurting others is explicitly due to his pedophilic disorder. Likewise, the March 2025 vocational assessment concluded that the Veteran has been unemployable since 1991 due solely to the effects of his PTSD, with no mention of the fact that the Veteran has been incarcerated since 1991 due to criminal charges related to his pedophilic disorder. This glaring omission erodes the probative value of the opinion. The Board notes that the record is clear that the reason for the Veteran's prolonged unemployment is solely due to his many years of incarceration in prison and a secure treatment center. Likewise, his inability to seek employment in the community during his period of supervised release was due to limitations on his movements as a result of his status as a sex offender. The Board acknowledges that the Veteran's service-connected PTSD causes him some level of functional impairment. For example, the evidence is clear that it interferes with his ability to get restful sleep and causes him to be fatigued during the day, and may cause intrusive thoughts. However, there is no indication from the record that this disability is so severe as to render him totally unemployable. In this regard, the evidence does not suggest the Veteran would not otherwise be able to perform occupational tasks in a quiet, relaxed, or solitary setting, such as working as an artist, an occupation the Veteran has endorsed enjoying and excelling at. This type of employment would also allow the Veteran to work independently, so not to aggravate his PTSD symptoms of hypervigilance and started response. The Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose, 4 Vet. App. at 363. To the extent that the Veteran's service-connected PTSD impacts his occupational functioning, his currently-assigned disability rating already compensates him for such impairment. For the foregoing reasons, the Board finds that the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran's service-connected PTSD renders him unable to secure and follow a substantially gainful occupation. Rather, the evidence persuasively weighs against such a finding and, therefore, the benefit of the doubt doctrine is not for application as to this claim. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776, 780-81 (Fed. Cir. 2021). Accordingly, the appeal as to entitlement to a TDIU, on both a schedular and extraschedular basis, is denied. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee 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.