Citation Nr: 18148712 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-41 022 DATE: November 8, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 13, 2011 is denied. FINDING OF FACT Prior to May 13, 2011, the Veteran’s service-connected disabilities did not render him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met prior to May 13, 2011. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1985 to August 1987. Additional, pertinent evidence was associated with the Veteran’s claims file after the case was transferred to the Board. Subsequently, Disabled American Veterans submitted a waiver of the Agency of Original Jurisdiction (AOJ) review on behalf of the Veteran. Therefore, the Board proceeds to adjudicate the case. 38 C.F.R. §§ 19.37(b), 20.1304(c). TDIU prior to May 13, 2011 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. 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). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). A TDIU may be assigned 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). 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, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. But for the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 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). 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). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 can find employment. Van Hoose, 4 Vet. App. at 363. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. At the outset, with consideration of the bilateral factor, and the fact that disabilities affecting a single body system (in this case the orthopedic system) are considered as one 60 percent disability, the schedular percentage criteria for TDIU are met since May 1, 2003. See 38 C.F.R. §§ 4.16 (a), 4.25, 4.26. A review of the evidence of record reveals the following, relevant history. The Veteran has participated in VA’s vocational rehabilitation program as early as 2001. In August 2001, he finished his bachelor’s degree in business and retailing industry and was hired by a restaurant as assistant manager with a salary of $1,600 per month starting from September 1, 2001. However, an October 2001 report of contact by vocational rehabilitation counselor indicates that the Veteran left his job at the restaurant because logistical issues prevented the restaurant from opening sooner and he needed to earn a living. In October 2001, the Veteran accepted another job offer at a Target store, but did not take the job in receiving because his knees would not withstand the cold. The Veteran underwent a right knee surgery in May 2002, for which he was assigned a temporary total disability rating from May 31, 2002 to May 1, 2003. In March 2003, a VA physician told the Veteran that he could gradually build up to running and jumping. In April 2003, the Veteran indicated to the vocational rehabilitation counselor his intention to gain more education. From 2003 to 2005, the Veteran worked part-time at Target, Walmart, and Graphic International through a temporary employment agency. In the fall of 2005, the Veteran applied for a certificate program in Geographic Information System (GIS) at Kennesaw State University and was accepted into the program starting from Fall 2006. The Veteran, however, dropped from the program after one term because he did not feel it would be compatible with his interests and abilities. See April 2012 vocational rehabilitation counselor MRG closure statement. The Veteran also indicated that he withdrew from the GIS program due to health reasons, mentioning the effects from his high blood pressure medicine and blood thinner. See 2006 Veteran’s statement in support of claim. He noted that a new location for the program and some lab requirements would be difficult for him due to his knee disabilities. He indicated his new interest in studying in the education department to pursue a career in education. Id.; see also, April 2012 MRG closure statement. The Veteran continued to work with the vocational rehabilitation program. In December 2008, the Veteran underwent a transferability of skills analysis and labor market survey, where he reported that he has a current driver’s license, owns a vehicle, and is willing to commute up to 30 miles for employment and that he would consider a salary of $35,000 as acceptable. The 2008 survey noted the Veteran’s use of cane and knee braces and limitations from his service-connected disabilities – no prolonged standing or sitting, no heavy lifting, no bending, limited climbing and crawling, and consequently considered only occupations that are sedentary in physical duty capacities. The survey found the following jobs are suitable for the Veteran: merchandise manager, order clerk, order taker supervisor, telephone solicitor, and customer service manager. The evidence of record indicates that his interest, however, was in teaching field, and he tried to obtain education benefits from VA in November 2009. Most recently, the Veteran was hired by his family’s business, [redacted] from October 6, 2010, first, to supervise four men for 24 hours per week, and then to telemarketing on February 2, 2011 until May 12, 2011 when the medications and back pain was too much for him to continue. June 2013 statement by [redacted]. Mr. [redacted] indicates that his business workman compensation insurance could not continue to cover his business with the Veteran around due to the Veteran’s disabilities. Id. A VA vocational rehabilitation counselor contacted the Veteran in May 23, 2011. The Veteran replied that he would be taking a position with a marketing company in San Francisco, California. The Veteran indicated that the resume writing and mock interviewing with the vocational rehabilitation program played a pivotal role in obtaining the employment. April 2012 MRG closure statement. The medical evidence of record indicates that the Veteran was seen at a VA clinic in Georgia as of September 2011. The Veteran visited emergency department at the VA medical center in Columbia, South Carolina in May 2013 with a complaint of left knee pain and back pain and requested medications for pain. He was discharged after medication was administered. Based on the VA treatment records in the file, the Veteran moved to California sometime between February 2014 and April 2014. The April 2014 VA treatment record reports that he indicated his plans to get a degree in accounting from San Francisco State University. Based on the evidence summarized above, the Board finds that the Veteran’s service connected disabilities alone are not of sufficient severity to produce unemployability prior to May 12, 2011. The Veteran’s persistent interest in education allowed him to obtain a college degree in retail business and management, and he was offered a full-time employment as a restaurant manager in 2001 upon graduation from college; he did not maintain it due to restaurant’s logistic issue and his financial situation, not due to his physical disabilities. Moreover, in 2008, the education and skills he gained over the years were found sufficient to obtain employment as merchandise manager, order clerk, order taker supervisor, telephone solicitor, and customer service manager, even while taking his service-connected disabilities and their limitations into account. Indeed, the Veteran worked as a supervisor and a telephone solicitor at his family’s company until May 12, 2011 when he was let go because his service-connected disabilities prevented him from performing the jobs. The Board notes that the Veteran’s former employer, [redacted] of [redacted], submitted two statements, which contradict the Veteran’s reporting of his work history. A November 2015 statement indicates that the Veteran was released from employment in January 10, 2008 and that May 2011 was something that was done for tax filing purpose. A June 2016 statement indicates that by 2004, the Veteran was working only 16 hours per month and that he supplanted the Veteran’s income from 2004 to financially help the Veteran. The Board finds those statements less probative because no other documentations to support the validity of the statements are found in the Veteran’s claims file, even though such financial and accounting documentations such as tax filing must be available to be presented. These statements are less probative also because the evidence currently in the Veteran’s claims file supports in more than one way that the Veteran was employed by [redacted], commensurate with his working capability from October 2010 to May 2011. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel