Citation Nr: 18132343
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 11-28 873
DATE:	September 6, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.
FINDING OF FACT
The Veteran’s service-connected noncompensable hearing loss, tinnitus (evaluated at 10 percent), and posttraumatic stress disorder to include depressive disorder (evaluated at 50 percent) do not render him unable to secure or follow a substantially gainful occupation. 
CONCLUSION OF LAW
The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 3.340, 4.2, 4.10, 4.16, 4.25 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had honorable active duty service in the United States Army from February 1969 through September 1970.
In May 2014, the Veteran’s claim for a TDIU was remanded by the Board for further development. The remand ordered that the RO refer the claim to the Director, VA Compensation Service, for consideration of an extraschedular TDIU award. The Board notes that there was no finding of fact that the Veteran was unemployable accompanying the remand order. The development directed was completed, and the case was returned to the Board.
In May 2017, the Board issued a decision finding that the Veteran was not unemployable. The Veteran appealed to the United States Court of Appeals for Veteran’s Claims (CAVC or Court), and the case was returned to the Board by order of the Court approving a Joint Motion for Remand. 
There are transcripts from hearings in the record. Specifically, there is a March 2006 Decision Review Officer hearing, and a May 2007 Board hearing. The Veteran has waived any further hearings in this matter. See August 2018 Correspondence.
New evidence was submitted by the Veteran, but the Veteran’s attorney also waived Agency of Original Jurisdiction (AOJ) review, and requested a decision by the Board. Id. The case may proceed to adjudication by the Board. 
Entitlement to a total disability rating based on individual unemployability (TDIU) 
The Veteran asserts that he is entitled to a TDIU.
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 (2018). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2018). An extraschedular total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b) (2018). 
The Veteran’s service-connected disabilities include PTSD, evaluated at 50 percent disabling; tinnitus, evaluated at 10 percent disabling; and bilateral hearing loss, evaluated as noncompensable (0 percent disabling). His combined rating is 60 percent.  Given the foregoing, the Veteran does not meet the minimum schedular requirements for a TDIU. See 38 C.F.R. §§ 4.16(a), 4.25 (2018). Thus, the only basis for the assignment of a TDIU is on an extraschedular basis. 
Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable due to service-connected disability. 38 C.F.R. §§ 3.321, 4.16(b) (2018). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation due to service-connected disabilities shall be rated totally disabled. For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (1992). Factors such as employment history, and educational and vocational attainments, are for consideration. 
Assignment of a TDIU evaluation under 38 C.F.R. 4.16(b) requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). 
The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether he can find employment. Id.  
The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator.  See 38 C.F.R. § 4.16(a) (2018); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that “medical examiners are responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity,’ 38 C.F.R. § 4.10 (2018), but it is the rating official who is responsible for ‘interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,’ 38 C.F.R. § 4.2 (2018).”).
The Board notes it must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). While the Board is required to summarize and provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).
Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). While the Board must consider all competent lay assertions, in determining credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). VA may not discredit a veteran’s testimony simply because he or she is an interested party and stands to gain monetary benefits; however, personal interest may affect the credibility of the evidence. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).
Upon review of the record, the Board does not find unemployability due solely to the service-connected disabilities to be established in the credible evidence of record.
The Veteran is service connected for PTSD, to include depressive disorder not otherwise specified. During the period on appeal, the disability has been evaluated at no higher than 50 percent (the Board, in May 2014, denied a rating in excess of 50 percent). He is also service connected for noncompensable bilateral hearing loss and tinnitus.
The Veteran attained a GED, and completed two years of electrician trade school. See February 2018 Application for Increased Compensation Based on Individual Unemployability; May 2018 Vocational Employability Assessment. 
There are varying dates in the record as to when the Veteran last worked, but the evidence consistently indicates that the Veteran retired from his regular full-time job as an electric lineman foreman due to testicular pain around the year 2003. See October 2005 VA examination; November 2006 VA examination; November 2014 VA examination report. The Veteran’s most significant work history is as a high voltage lineperson, in which he worked over 30 years; he stopped working as an electrical lineperson and his subsequently held part-time teaching position (of approximately eight months) “primarily due to a non-service-connected groin injury,” but he contends that his “service-connected disabilities also significantly impaired [his] ability to work.” See February 2018 Application for Increased Compensation Based on Individual Unemployability.
The Board notes the Veteran’s education and professional experience, both as an electric lineman and as a union instructor, demonstrate the Veteran’s ability to perform active as well as sedentary tasks, and demonstrate an above-average level of technical skill and industrial knowledge. 
There is no credible evidence that the Veteran’s hearing loss or his tinnitus cause or materially contribute to unemployability. The Board notes that the ratings assigned to these conditions is not suggestive of unemployability, nor are there any unique circumstances of these hearing disabilities in this case. The evidence that best approximates the severity of these conditions is the VA examinations of record. In a September 2005 VA examination, the Veteran reported that his tinnitus was once every two weeks for 15 to 30 seconds at a time, subsiding when he moved his head or rubbed behind his ears. During a June 2011 audiological VA examination, the Veteran’s service-connected hearing loss and tinnitus were noted not to significantly affect his vocational potential or limit participation in most work activities. The VA examiner noted that the hearing loss does not limit his ability to perform all forms of employment, and that the Veteran would perform best when wearing his hearing aids in a quieter environment. At a May 2016 VA audiological examination, the Veteran’s hearing loss was found to cause difficulty hearing in “most listening situations,” although he reported that his hearing aids helped his hearing acuity. The Board notes that the VA audiological examinations are performed without hearing aids (38 C.F.R. § 4.85). 
However, there is a vocational assessment of record that suggests the Veteran’s hearing loss and tinnitus contribute to unemployability. See May 2018 Vocational Assessment (May 2018 report). The Board is cognizant that all disabilities, especially compensable ones, impact the ability to work in some way. However, unemployability is the question at hand, and the Board does not find that the hearing loss or tinnitus disabilities cause or significantly contribute to unemployability. Nor is there any evidence of record showing the disabilities have unique or unusual symptoms, or become significant factors when combined with PTSD. The Board notes that even the April 2012 Vocational Assessment did not reference hearing loss as a factor in opining for unemployability. Generally, a bare conclusion, even one reached by a medical professional (which the author of said report is not) is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998). The Board rejects the May 2018 report’s conclusion as lacking credibility with regards to hearing loss and tinnitus, and finds the severity of the Veteran’s hearing loss and tinnitus to be accurately reflected in the VA examinations of record.
Having found there are no service-connected physical limitations that render the Veteran unemployable, the Board must address whether there are any service-connected mental conditions that so limit the Veteran. 
An October 2005 VA examination diagnosed the Veteran with mild PTSD, and contained an extensive summary of the Veteran’s history. The VA examiner noted specifically that the Veteran’s work life “has not been affected by the PTSD symptoms.” This finding was based on a contemporaneous account closest to the time the Veteran last worked. The report from the Veteran appears forthcoming, thorough, and credible, and Board affords the findings in this examination significant weight. 
A November 2006 VA examination noted that the Veteran would not appear to be unemployable solely due to PTSD. He was noted to be working part-time, and the indication of impairment and apportionment thereof were noted to suggest that the Veteran would have more trouble than average in accommodating himself to a work situation where he was around other people and had to fit in or get along with them. He would have difficulty accepting close supervision and would be inclined to get angry and have conflict, and would have difficulty maintaining a competitive work pace. 
In a March 2009 VA examination, the Veteran reported avoiding contact with co-workers as well as isolation, and the examiner opined it was clear to him that the Veteran’s identity is as an effective leader in a dangerous and difficult line of work. The examiner reported that the Veteran had subsequently worked part-time as a substitute instructor for a union apprentice training program, but that the Veteran stated he could not keep up with the time demands. The examiner opined that while the Veteran’s symptoms had increased, his functional level does not seem to have declined significantly.
In a June 2011 VA psychiatric examination, the Veteran reported he was no longer socializing with his former colleagues. The examiner opined that the Veteran had problems in several areas, including reliability, productivity, adapting to changes, and accepting supervision. The VA examiner opined that the Veteran was not unable to pursue gainful employment because of his service-connected mental disorder. The VA examiner noted that the Veteran’s claim of having left the work force primarily because of psychological problems was not plausible, and noted divergent statements to providers and to himself. The Board notes that the Veteran was socializing with former colleagues after his separation from work, which does not suggest he had entirely poor workplace relationships. 
In October 2011, the Veteran obtained a private medical evaluation of his mental health condition, reporting he had stopped working due to his psychological and physical issues, and claiming his physical pain was being caused by his PTSD. While the private physician opined that an increased evaluation of his PTSD was warranted, he also opined that the Veteran is unable to hold a job due not only to his lowered abilities to tolerate social stressors but also to his chronic physical pain. The clinician noted that the Veteran’s “chronic pain, irritation, lowered abilities to tolerate social stressors—symptoms that connect in some manner to PTSD—which, when taken together, result in an assigned GAF (Global Assessment of Functioning) score of 42, reflecting, in part, his inability to hold a job.” The clinician then opined that the Veteran qualified for the 70 percent disability status. The Board does not find this to be a description of the functional impact of the Veteran’s service-connected mental health disability alone, as it included chronic pain, which is not currently service-connected or secondarily service-connected (service connection for left testicle pain associated with PTSD was subsequently denied in November 2014).
In April 2012, a private vocational expert opined that it was at least as likely as not that the Veteran was unable to secure or follow a gainful occupation because of his service-connected disabilities. He based his opinion largely on the history of the Veteran’s assigned GAF scores as being all below 50, and his finding that the Veteran’s deficit in concentration and panic attacks would impact his productivity and lead to excessive absenteeism. 
In November 2014, the Veteran underwent another VA psychiatric examination.  The examiner indicated the entire claims file was reviewed.  The Veteran’s level of social and occupational impairment was assessed as “occupational and social impairment with reduced reliability and productivity.” The examiner noted recurrence of distressing memories and dreams, avoidance of distressing memories and reminders of traumatic events, persistent negative emotional state and irritable behavior with angry outbursts among the Veteran’s symptoms. The examiner noted the Veteran’s panic attacks occurred rarely. The Veteran reported at that time that since his examination of June 2011, he had not applied for any jobs, nor did he desire to work. 
A November 2014 VA genitourinary examination reflected that the Veteran stated he had retired at age 55 due to testicular pain, a non-service-connected disability. The Veteran further stated that his physical disabilities caused him to be unable to climb, squat or do heavy lifting, rendering him unable to perform his duties as an electrical lineman.
The Director opined, in correspondence uploaded in April 2016, that while the Veteran has significant symptomatology related to his service-connected PTSD, the evidence of record fails to demonstrate that the PTSD symptoms are so severe as to preclude employability. The evaluation points to the Veteran’s non-service-connected disabilities, notably the groin/testicular pain, which primarily impeded the Veteran’s ability to acquire and maintain gainful employment. 
A May 2018 private vocational assessment (May 2018 report) concluded that the Veteran’s service-connected disabilities have combined to prevent him from securing and following substantially gainful employment. The report noted the Veteran’s reports of having difficulties at work. The report provided the opinion, among other points, that the Veteran is unable and demonstrated an inability to be a reliable worker or a worker who can sustain a full eight-hour workday due to his PTSD symptoms, unable to sustain quality and quantity production demands, and unable to work with others. 
Weighing the evidence of record, the Board does not find sufficient evidence of unemployability. 
The Board has carefully considered the April 2012 and May 2018 vocational reports submitted by the Veteran, but does not find that the evidence as to unemployability is substantiated.
A specific problem in the April 2012 report, among other issues, is that it mischaracterized the August 2006 letter from a union leader that the Veteran’s personality made it “difficult for him to be employable” as stating that the Veteran had deteriorated to a point where he “cannot work.” Significant weight was placed on noted low GAF scores under 50, which were subsequently noted to have risen to 60 in 2013. See November 2014 VA examination. As previously noted, a GAF score is evidence to be considered, but does not on its own reflect the severity of a condition when compared with the medical evidence of record.  
There are similar problems in the May 2018 Vocational Assessment. The report appears to find that the Veteran is so symptomatic and unable to get along with others as to make him unemployable based on lay statements of record. However, he is noted to be a “pleasant and easy to talk to” individual in his July 2009 Social Security interview and in numerous other treatment records as being “pleasant,” “cooperative,” with an “appropriate mood,” and appears to be able to conduct himself in a professional manner during other interviews (including the phone interview for the report, which noted the Veteran was pleasant and cordial). The October 2005 VA examination findings regarding the impact of PTSD on the work, or the absence of reports of such problems from the Veteran at that time are not discussed in the May 2018 Vocational Assessment. There is also no credible medical evidence to support the finding that the Veteran is “unable to work around others safely”—the rationale cites to “difficulties” and relatively isolated instances over a long period of time, which do not demonstrate an inability to work. The report also apparently found the February 13, 2018, statement that the Veteran “got into arguments all the time at work with supervisors and coworkers” to be probative; the Board does not find such either (a) sufficiently specific to make a finding or draw specific conclusions on, or (b) particularly credible, given the lack of meaningful corroboration and the contradictory account in the notes of the October 2005 VA examination. 
The May 2018 report also appears to have given unwarranted deference to the Veteran’s claim that his “PTSD profoundly impacted his ability to work” and “played a significant part in his retirement.” The report opined it was “more likely than not that his combined service connected difficulties prevent him from securing and following substantially gainful employment since 2003.” There is no competent evidence of significant absenteeism, tardiness, or inability to complete a full shift during the period the Veteran worked either full-time due to PTSD symptoms. The report notes that the Veteran left the part-time teaching capacity due to his groin issue, yet does not indicate any evidence of any specific symptom attributable to his mental condition that arose during this part-time employment, other than the Veteran’s report. Also, although findings of absenteeism and production deficiencies are noted, there is evidence suggesting otherwise of record. Specifically, an April 2009 Mayo Clinic Treatment note noted that the Veteran described himself as “always early” to appointments, that it was “almost like a ritual.” 
The Board cannot otherwise replicate the finding in the May 2018 Vocational Assessment that the Veteran would be a generally unreliable worker, or incapable of sustaining a full eight-hour workday due to his PTSD symptoms, including “daily and frequent panic attacks” The Board specifically notes this finding that the Veteran experiences “daily panic” attacks is not competent or credible, as it conflicts with the medical examinations of record, performed by individuals qualified to assess such, which did not note daily panic attacks. For these and other reasons, the Board does not find the May 2018 report to be consonant with an objective view of the evidence, and to also lack credibility. 
Generally, a 50 percent evaluation for a mental health disorder does not implicate unemployability, as a mental health condition so severe as to cause unemployability would at generally cause “deficiencies in most areas.” As found in the May 2014 Board decision, the Veteran’s symptoms do “not constitute deficiencies in most areas.” This is not intended to diminish the significance of the Veteran’s disability: “[i]f the Veteran did not have the problems he has cited, there would be no basis for the 50 percent evaluation.” Id.
Unemployability is not shown in the competent and credible evidence of record. The VA mental health examinations of record competently and credibly assess the functional limitations associated with the Veteran’s disability. The VA examinations involved in-person evaluations and full file review, do not detail functional limitations showing that the Veteran is unemployable due to his service connected mental health condition. The Board also notes that even the Veteran’s 2011 private mental health evaluation did not note unemployability due to PTSD alone. The findings in the VA examinations are competent, credible, and weigh heavily against an evaluation of the Veteran as unemployable.
The Board does not find the Veteran’s statements of record credible. He reported, at various points, having left his full-time job due to mental health problems, while the evidence shows his reason for leaving was based only on his non-service connected groin/testicle issue. Moreover, the Board does not find the Veteran’s or other lay statements of record competent to accurately assess functional limitation associated with his service-connected mental health disabilities. These lay assertions are given no weight in this regard. See Jandreau v. Nicholson, 492 F.3d 1372, 1374 (Fed. Cir. 2007).
The Board finds that the preponderance of evidence weighs against a finding that the Veteran is unemployable due to his service-connected disabilities. 


Thus, the Veteran is not entitled to a TDIU, schedular or extraschedular, under 38 C.F.R. § 4.16(a) or (b). As such, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53.
 
B. MULLINS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. C. King, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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