Citation Nr: 18141893 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 14-11 691 DATE: October 11, 2018 ORDER Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s total combined rating is 40 percent from March 28, 2011 to April 2, 2014, 30 percent from April 2, 2014, to April 3, 2014, and 50 percent from April 3, 2014, and referral for consideration of an extraschedular TDIU is not warranted. CONCLUSION OF LAW For the entire rating period on appeal, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2003 to April 2009. This appeal is before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for gastroesophageal reflux disease (GERD). The Veteran disagreed with the initial rating assigned to the GERD disability. Although not developed as a distinct issue, the issue of entitlement to a TDIU on appeal was raised as a component of the initial rating claim for GERD in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). The Veteran testified at a May 2017 Board hearing via videoconference before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is of record. In March 2018, the Board remanded the issue on appeal to the Agency of Original jurisdiction (AOJ) in order to provide the Veteran with appropriate notice, and perform any TDIU development deemed necessary (such as submission by the Veteran of a VA Form 21-8940). This was accomplished, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). TDIU The Veteran seeks entitlement to a TDIU. Total disability ratings for compensation may be assigned where the schedular rating is less than total, and the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. The determination or finding that a Veteran is unable to secure or follow a substantially gainful occupation is not medical in nature. Indeed, no specialized opinion is required, as this is a determination exclusively within the province of VA adjudicators, including the Board. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner). Basic eligibility is established where there is one disability rated at 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran is service connected for GERD and irritable bowel syndrome (IBS) rated at 10 percent from March 28, 2011 to April 2, 2014, and rated at 30 percent from April 3, 2014, a lumbar spine disability rated at 10 percent, a left knee disability rated at 10 percent, and a right knee disability rated at 10 percent. Under the application of 38 C.F.R. § 4.25, the Veteran’s total combined rating is 40 percent from March 28, 2011 to April 2, 2014, 30 percent from April 2, 2014, to April 3, 2014, and 50 percent from April 3, 2014. Accordingly, the schedular TDIU eligibility requirements under 38 C.F.R. § 4.16(a) are not met because at no point during the appeal period did the Veteran have a single service-connected disability rated at least 60 percent disabling or a combined schedular rating of at least 70 percent. However, under 38 C.F.R. § 4.16(b), a TDIU evaluation on an extraschedular basis can still be awarded if it is established by the evidence of record that the service-connected disabilities have rendered a veteran unable to secure and follow substantially gainful employment After a review of all the evidence, the Board concludes that the weight of the evidence demonstrates that referral to the Director of Compensation Service for consideration of an extraschedular TDIU is not warranted for any part of the rating period on appeal. In this regard, the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities at any point during the appeal period. At the May 2017 Board hearing, the Veteran asserted that the GERD and IBS disability has resulted in industrial impairment and absenteeism from work, and requires significant accommodations. He advanced that he had been working for a friend for about one year in order to pay his bills, and that he had earned approximately $3,000 in calendar year 2017 at the time of the hearing in May 2017. The Veteran testified that his friend is also a Veteran, so provides him with significant accommodations, and that he had missed work approximately 30 percent of the time as a result of the GERD and IBS disability. A July 2011 VA examination report shows that the Veteran reported that his last job was from July 2010 to May 2011 as a maintenance engineer in a steel company. The Veteran stated that he quit the job due to the employer’s unsafe working conditions. VA treatment records in 2012 and 2013 reflect that the Veteran was working as a handyman. See, e.g., October 2012, December 2012, and March 2013 VA treatment records. VA treatment records dated in June 2013, August 2013, November 2014 reflect that the Veteran was employed on a full-time basis as a mechanic and manager at an indoor go-kart facility. See also February 2014 VA spine examination report. The February 2014 VA examination report reflects that the Veteran reported that he had not lost any time from work over the previous year due to his disabilities. A March 2016 VA treatment record reflects that the Veteran was working for an art dealer in shipping and sales. A May 2018 VA treatment record reflects that the Veteran reported work at a scrap yard. The Board finds that the evidence weighs against a finding that the Veteran has been unable to secure or follow substantially gainful employment due to his service-connected disabilities at any point during the appeal period. As noted above, the Veteran has been working, albeit with some limitations and some gaps in employment, for the entire appeal period. Moreover, the Veteran has reported that he quit a job in May 2011 due to the employer’s unsafe working conditions. Thereafter, the Veteran held multiple jobs, including on a full-time basis. Although the evidence shows some functional impairment during the appeal period, especially as a result of the service-connected disabilities, the record shows that the Veteran has been gainfully employed throughout the appeal period. To the extent that the Veteran’s service-connected disabilities caused some impairment to the Veteran’s employability during the appeal period, the service-connected disabilities did not render the Veteran totally and permanently unemployable. As noted above, the Veteran’s total combined rating is 40 percent from March 28, 2011 to April 2, 2014, 30 percent from April 2, 2014, to April 3, 2014, and 50 percent from April 3, 2014. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the claimant 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). Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to TDIU. The schedular disability rating criteria are intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 3.321(a), 3.340, 4.1 (2017); Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Therefore, to the extent that the service-connected disabilities caused some impairment to the Veteran’s earning capacity as a result of exacerbations or illness during the period at issue, the Veteran has already been compensated by VA for such impairment at the combined rating of 40 percent from March 28, 2011 to April 2, 2014, 30 percent from April 2, 2014, to April 3, 2014, and 50 percent from April 3, 2014, and has been able to supplement his income with some employment. In this regard, the Board finds that the Veteran’s employment during appeal period is not marginal employment. While the income reported by the Veteran above for 2017, by itself, may be close to, or below, the poverty level for 2017, the amount reported above does not include the Veteran’s VA disability compensation benefits at the combined 50 percent rate during this period. When the Veteran’s VA disability compensation benefits, which compensate the Veteran for the average impairment in his earning capacity, are considered with the Veteran’s income during the same period, the Veteran’s total income is shown to be well above the poverty level during the appeal period. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited October 9, 2018). Based on the foregoing, the percentage criteria set forth at 38 C.F.R. § 4.16(a) have not been met for the entire appeal period, and the evidence does not demonstrate that referral under 38 C.F.R. § 4.16(b) to the Director of Compensation Service for consideration of an extraschedular TDIU due to his service-connected disabilities is warranted for. As such, the preponderance of the evidence is against the Veteran’s claim for a TDIU, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel