Entitlement to a rating of total disability based on individual unemployability (TDIU) is denied.
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Citation Nr: 21055683 Decision Date: 09/08/21 Archive Date: 09/08/21 DOCKET NO. 15-09 112 DATE: September 8, 2021 ORDER Entitlement to a rating of total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT During the period on appeal, the Veteran was not unable to secure and follow substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW During the period on appeal, the criteria for entitlement to a rating of total disability based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from March 1974 to March 1978, May 1978 to February 1985, and from April 1992 to August 1992. This matter was previously before the Board in July 2020, at which time it denied the issue on appeal. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Partial Remand (JMPR), reversing the Board's prior decisions and remanding those claims for further development. Specifically, the Court indicated that the Board's July 2020 decision did not engage in substantive discussion of the Veteran's acquired psychiatric disability, focusing on its impact on Appellant's ability to secure or maintain substantially gainful employment. The Board finds that there has now been substantial compliance with the Court's remand directives. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Entitlement to a rating of total disability based on individual unemployability (TDIU) On April 13, 2004, the Veteran applied for, and was denied a TDIU rating. However, as unemployability was raised by the record in an increased rating claim dated January 18, 2013 for the Veteran's service-connected shoulder disability, another TDIU claim is inferred under Rice v. Shinseki, 22 Vet. App. 447 (2009) as of that date. Thus, the period for the Veteran's TDIU claim begins on January 18, 2013. The Veteran seeks a total disability rating based on individual unemployability (TDIU). His claim is based primarily on the severity of his right shoulder disability, his Meniere's disease, and his psychiatric disability. The Board is unable to grant TDIU in this matter because the Board does not find that his service-connected disabilities capable of causing unemployability that is, the inability to secure and follow substantially gainful employment due to service-connected disabilities. Since a TDIU is essentially a rating, a prior denial does not necessarily preclude another claim. While the Veteran formally applied for TDIU in April 2004 and was denied in January 2015, his increased rating claim for his right shoulder disability dates to January 2013. This is the beginning of the appeal period. The Veteran's service connected disabilities consist of an acquired psychiatric disability, currently rated at 70 percent from March 11, 2015; residuals of a right shoulder injury, rated 30 percent from November 9, 2000; Meniere's disease currently rated at 30 percent from August 22, 2012, left plantar fasciitis rated at 10 percent from November 9, 2000, tinnitus rated at 10 percent from August 22, 2012; bilateral hearing loss rated at noncompensable from August 22, 2012 and 10 percent from June 22, 2018 and residuals of a right thumb injury, rated as noncompensable from August 22, 2012. Thus, the Veteran's combined rating for the period on appeal is 60 percent from August 22, 2012, and 90 percent from March 11, 2015. He has met the schedular criteria for TDIU under 38 C.F.R. § 4.16(a), but only from March 11, 2015. In any event, the Board concludes that TDIU is not warranted, based on the evidence of record, because any inability of the Veteran to secure or follow a substantially gainful occupation is not a result of his service-connected disabilities. See 38 C.F.R. § 4.16(b). Specifically, his service-connected psychiatric, right shoulder, bilateral ear, left foot, and right thumb disabilities do not, by themselves or in combination, cause unemployability. With respect to the medical and lay evidence, the Veteran's VA medical treatment records indicate that he was not necessarily precluded from work, and that any inability to secure or follow a substantially gainful occupation was a result of non-service-connected disabilities. Of note, the Veteran's psychiatric symptoms are not, by themselves or in concert with other service-connected disabilities, capable of rendering the Veteran unemployable nor does the lay evidence suggest as much. In a March 2020 rating decision, the Veteran was granted service connection for an acquired psychiatric disorder, and specifically unspecified trauma and stressor-related disorder. A 70 percent rating was assigned, effective March 11, 2015. The rating is based on the Veteran's examiner's checking a box on the April 2019 C&P examination report that said, "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood." That same examination report provides no substantive discussion of the Veteran's symptoms that would indicate a 70 percent rating. In fact, the Veteran's April 2019 examiner reported that the Veteran's speech was within normal limits, his affect was congruent to his euthymic mood, and his intellectual function was average based on conversation (admittedly, despite no formal testing being done). The examiner observed coherent, logical, and goal directed thoughts, with no loose associations, no flight of ideas, no ideas of reference, and the Veteran denied current suicidal ideation or homicidal ideation. The Veteran reported no delusions, or auditory or visual hallucinations. The Veteran's insight was fair, and his judgment was intact. Based on the Veteran's symptom profile, his June 2019 C&P examiner opined that the Veteran's psychiatric disability is based characterized as unspecified trauma and stressor-related disorder. Specifically, from the absence of symptoms like ongoing depressive feeling with diminished interest or pleasure in all or almost all activities most of the day, nearly every-day insomnia and recurrent thoughts of death, and clinically significant distress, the examiner ascribed the Veteran's symptoms to a specific trauma related disorder. In other words, only psychiatric symptoms stemming from the Veteran's long-standing debilitating shoulder injury, for which he received three surgeries, could be compensated. Indeed, while the September 2019 C&P examiner noted chronic shoulder pain and mobility issues, creating a limitation on employment, and causing anxiety and depression due to the loss of functional abilities, neither the shoulder disability nor the resulting anxiety and depression are asserted or shown to cause unemployability. Indeed, the lay and medical evidence is clear that the Veteran's unemployability claim is based mainly on the physical aspects of his shoulder disability, rather than any psychiatric symptoms, whether service-connected or non-service-connected. Despite testimony being taken on a psychiatric disability at his June 2017 hearing, the Veteran indicated that his application for TDIU is based mainly on his right shoulder disability. Indeed, the Veteran stepped down from his employment as a mechanic because his service-connected disabilities precluded work on vehicles, the job he was hired to do. At January and February 2013 examinations, the Veteran attested that he could not use his dominant right arm for any activity. At his June 2017 Board hearing, the Veteran reported that rather than seek an accommodation and stay on the payroll, doing menial work that is not in his official job description, the Veteran left employment. While the Veteran's shoulder prevents him from his usual occupation as a mechanic, the evidence does not show the Veteran's shoulder disability, the anxiety and depressive symptoms stemming from that disability, or any other service-connected disabilities, capable of rendering him unable to secure and follow substantially gainful employment. Nor are the Veteran's remaining service-connected disabilities. At January and February 2013 VA examinations, the Veteran reported to an examiner that constant ringing in the ears impairs his concentration, and the disability in his dominant right thumb causes difficulty with gripping and holding objects. Further, the Veteran's June 2015 C&P examiner noted vertigo and staggering more than once weekly, and tinnitus that wakes the Veteran at night. The Veteran reported that these symptoms impaired his ability to climb ladders, or to be in any other position where his vertigo could endanger him or his co-workers. The tinnitus also interfered with the Veteran's sleep, and contributed to mild mood symptoms, to include edginess. Similarly, the Veteran's June 2018 and April 2019 C&P examiners noted that because of his hearing disability, the Veteran often must ask for repetition. The June 2018 examiner also noted that the Veteran's tinnitus loud, roaring tinnitus interferes with conversation and sleep. Unfortunately, it often causes emotional distress and makes him want to bash his head against a wall. Thus, the Board acknowledges the medical and lay evidence indicating impairment of his ability to work, due to mental health symptoms, and the Veteran's inability to use his right arm or hand. However, even a medical professional finding a Veteran unemployable due to a service-connected disability is not dispositive, as the Board has ultimate responsibility for determining whether a veteran is unemployable. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, the Board finds that despite his limitations, the Veteran is not unemployable. Initially, the specific functional impairments caused by the Veteran's service-connected psychiatric symptoms, recorded in June 2017 testimony, April 2019, and June 2019 examinations, are limited to anxiety and depressive-related symptoms such as intrusive thoughts and rumination. These symptoms do not appear to have caused the Veteran to be unemployable; again, his claim is based on physical manifestations of his right shoulder disability, and his inner ear disorders. While the Veteran's concentration is impaired by his tinnitus and Meniere's disease, the impairment is not at a level to render him unable to keep employment. Indeed, while his ear-related disabilities precluded working at heights, the Veteran's service-connected disabilities are not shown or alleged to prevent sitting at a desk. Further, while the Veteran's shoulder disability may have relegated him to menial tasks with his previous employer, it does not necessarily limit him to such tasks at any position of employment. Indeed, despite the rumination caused by the Veteran's depressive and anxiety symptoms, noted in June 2017 Hearing testimony and the April 2019 C&P report, the medical and lay evidence does not even suggest that the Veteran is unable to concentrate long enough to complete tasks involved in employment. Finally, while the Veteran's hearing loss impairs his ability to hear in groups, the Board finds that the inability to hear in groups is not detrimental to the Veteran's ability to maintain employment. The Board infers from the medical and lay evidence that despite his right shoulder disability, the Veteran can learn to use his left arm and hand for basic activities. Indeed, the record shows that during the appeal period, the Veteran was able to work out at the gym. While the Veteran may avoid using his right arm at the gym, exercise generally involves the use of at least one arm. If the arm is not being actively exercised, it is at least being used to manipulate exercise equipment. Since the Veteran has been observed as capable of doing basic activities despite his right shoulder disability, this shoulder disability does not preclude substantially gainful employment. Accordingly, the Board determines that despite his sadness and intrusive thoughts of his shoulder injury and its sequelae, his difficulty with balance, and the inability to use his right arm, the Veteran is not incapable of finding and keeping substantially gainful employment. Because the Board finds that the Veteran is not unable to work due to service-connected conditions, a TDIU rating cannot be awarded. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia