Citation Nr: 1755078 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 08-07 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Barrett, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to April 1988. This matter came to the Board of Veterans' Appeals (Board) from an October 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over the case was subsequently transferred to the Foreign Cases division of the RO in Pittsburgh, Pennsylvania. This matter was remanded by the Board in January 2017. FINDING OF FACT The Veteran has been employed on a full-time basis during the appeal and is not shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. §§ 3.341, 4.1, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 level of education, special training, and previous work experience in arriving at a conclusion, 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. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there is only one such disability, such is ratable at 60 percent or more and, if are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16 (a), "marginal employment shall not be considered substantially gainful employment." For purposes of TDIU, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment may also be held to exist, on a facts found basis-including but not limited to employment in a protected environment such as a family business or sheltered workshop-when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). Initially, the Board observes that the Veteran is service-connected for right upper extremity radiculopathy, rated as 40 percent disabling; left upper extremity radiculopathy, rated as 30 percent disabling; right lower extremity impairment, rated as 30 percent disabling; left lower extremity impairment, rated as 30 percent disabling; and status post laminoplasty titanium C3-7 for multilevel cervical spinal stenosis, rated as 30 percent disabling. His combined disability rating is currently 90 percent. Therefore, the Veteran's service-connected disabilities satisfy the schedular criteria for a TDIU, as at least one is ratable at 40 percent or more and the combined total is more than 70 percent. 38 C.F.R. § 4.16(a). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad, supra. The test of individual unemployability is whether a veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran filed a claim for TDIU in January 2014. He asserted that he was going to retire from his position as a teacher in June 2014 because the pain he experienced made it impossible for him to continue to be effective at his job. In an April 2017 email, the Veteran wrote that he had planned to retire on April 1, 2017, but continued working so he could afford medical insurance. He indicated that he had requested accommodation for his disability in the form of a transfer to England or Germany so he would have access to English-speaking doctors, but that request had not been fulfilled through the Department of Defense Education Activity. He also reported that he was only able to carry out his duties as a teacher because his wife was allowed to volunteer and help him in the classroom. During an informal conference with the decision review officer in June 2017, the Veteran acknowledged that he remained employed full-time. He again asserted that he only worked to maintain health insurance coverage for his spouse. During an informal conference hearing held in June 2017, the Veteran again reported that he was working full-time; although he requires the assistance of his spouse in the classroom and he does not know how long he will be able to maintain employment. He stated that he only works to maintain health insurance coverage for his spouse. Based upon the above, the Board finds that the Veteran's service-connected disabilities do not preclude him from securing and following substantial gainful employment. The record clearly shows that the Veteran has been working as a teacher since he applied for TDIU. Although the Veteran has indicated that pain makes it difficult to work, it has not made him unable to work. In addition, the Veteran requested an accommodation in the form of a transfer, but having English-speaking doctors would not make him more or less capable of securing or following a substantially gainful occupation due to his service-connected disabilities. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unemployable due to his service-connected disabilities. The Board notes that the Veteran's current disability ratings take into account any limitations and difficulties he has while working and he continues to work. In sum, the evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities. Further, to the extent that it may be argued that the Veteran is engaged in sheltered or protected employment because his spouse assists him in the classroom, such an assertion is insufficient to warrant TDIU here. The evidence does not support a finding of marginal employment in this case. The Veteran has reported that he earned $3800.00 per month while employed as a teacher. See VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) completed by the Veteran in April 2001 and February 2017. Extrapolating this out, the Veteran has earned at least $45,600.00 annually during the entire appeal period. VA Forms 21-21-686c in the claims file reflect that the Veteran has a total of 3 dependents, his spouse and two children. Based on the information of record, his annual earnings exceeded the poverty threshold for a family of four during the appeal. See United States Census Bureau Poverty Thresholds. As the Veteran has been gainfully employed on a full-time basis during the entire appeal, there is no basis for granting TDIU. ORDER TDIU is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs