Citation Nr: A19002085 Decision Date: 10/18/19 Archive Date: 10/18/19 DOCKET NO. 190320-4718 DATE: October 18, 2019 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. REMANDED Entitlement to service connection for residuals of gall bladder removal, claimed as stomach condition, is remanded. FINDING OF FACT The most probative evidence of record, including the Veteran’s own lay statements, establishes that she is currently gainfully employed. There is no indication that her employment is marginal. Prior to July 10, 2016, the evidence does not show that her schizoaffective disorder precluded her from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from June 1997 to September 1999. The procedural history relevant to the Veteran’s claim for TDIU/an increase in her schizoaffective disorder rating is somewhat complicated. In August 2013, the Veteran’s claim for a TDIU was denied. In November 2013, she filed a notice of disagreement (NOD), requesting “increase in benefits assigned (IU).” She requested 50 percent and stated “I am asking for an increase because I am unable to get work because of my condition. I feel that the schizoaffective disorder affects my judgment in keeping work because I am paranoid about the people I work with and I have episodes that affect my judgment. I disagree with the findings I shouldn’t receive an increase because the medication affects my female organs and I don’t think clearly to complete tasks.” In other correspondence filed on the same date, the Veteran stated “I am appealing the decision of being denied an increase on my claim. I have problems that affect my being able to work and keep a job because of my paranoid feelings because of the schizoaffective disorder.” The Veteran was then sent an appeal process letter and in response, in January 2014, she stated “I choose to have a DRO assigned to my case. I am asking for an increase in my benefits and not individual unemployability, but this is my decision.” In response to her statement, the RO sent the Veteran a letter in March 2014 stating “you have indicated that you wanted an increase and not individual unemployability. Please let us know if you’re withdrawing your appeal for individual unemployability.” The Veteran responded that she was not withdrawing her appeal for TDIU. As a result, the RO issued a statement of the case (SOC) for the issue of TDIU is May 2014. In June 2014, the Veteran filed a substantive appeal (form 9). She requested a Board hearing and stated, “I think the VA decided my case incorrectly because I am having trouble getting and keeping employment.” While waiting for a Board hearing, the Veteran filed a claim for service connection for residuals of gall bladder removal in November 2016. The RO issued a rating decision that same month. She filed an NOD as to that issue in March 2017. In July 2017, the Veteran was afforded a videoconference hearing on the issues of TDIU and entitlement to a rating higher than 30 percent for schizoaffective disorder. In March 2018, the Board remanded the Veteran’s claims heard at her July 2017 hearing. In March 2018, after the Board remand, the Veteran opted into RAMP, requesting the “supplemental claim” avenue. In June 2018, she wrote in stating “I am supplying supportive information. I opted-in the RAMP program but I was not sure about the information I submitted. Please remove my opt-in process and return to normal appeal. I was uniformed about the process.” The Veteran was then informed that she would not be able to continue her appeal in the legacy appeal stream as her appeal had already been withdrawn. In November 2018, the RO completed their supplemental claim review for the Veteran’s claim for an increased rating for schizoaffective disorder and TDIU. They deferred the issues of TDIU on an extraschedular basis prior to December 29, 2017, and deferred the issue of entitlement to service connection for gall bladder removal. In November 2018, the Veteran filed a NOD. She did not agree with the effective date assigned for her 50 percent rating for her schizoaffective disorder. She requested higher level review as to that issue in December 2018. To date, that review has not been completed. As a result, the issue is not currently before the Board. In February 2019, the RO adjudicated the issues of TDIU and service connection for residuals of gall bladder removal pursuant to the “supplemental claim” review option. Following this, in March 2019, the Veteran requested the “direct review” option. Because TDIU and service connection for residuals of gall bladder removal were the only issues addressed in the February 2019 rating decision, those are the only two issues the Board currently has jurisdiction over. A review of the file reveals that the RO continues to develop the Veteran’s claim for an earlier effective date for the increase in her schizoaffective disability rating. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). It is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate 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(a)(1), 4.15. “Substantially gainful” employment is employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16(a); see also Moore, 1 Vet. App. at 358 (“The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment.”). A TDIU may be assigned if the schedular rating is less than total when it is found that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such service-connected disability, it must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Id. Where applicable, disabilities resulting from a common etiology are considered a single disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a). Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). 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 to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The Veteran is only service-connected for schizoaffective disorder, currently rated as 30 percent disabling prior to March 10, 2018, and as 50 percent disabling thereafter. At no point during the appeal period has the Veteran met the schedular criteria for a TDIU. The Board acknowledges in its March 2018 remand, the Board directed the RO to submit the matter of entitlement to an extraschedular rating to the Director of the Compensation Service. This has not been performed. However, this is the case because additional evidence was added to the claims file showing that the Veteran is currently gainfully employed by a VAMC as a Medical Support Assistant. She has earned approximately $27,000 a year since July 2016. The Veteran herself has acknowledges that this is gainful employment; there has been no allegation that this employment is marginal. Because the Veteran has been gainfully employed since July 10, 2016 and remains employed, a TDIU is not warranted from July 10, 2016. However, as noted above, the appeal period dates from June 2012, which is when the Veteran initially filed her claim for a TDIU. When considering all the evidence of record, the Board finds that a TDIU prior to July 10, 2016, is not warranted. The evidence does not establish that referral to the Director of Compensation Service is necessary. On her June 2012 Application for Increased Compensation Based on Unemployability, the Veteran reported having a bachelor’s degree in Criminal Justice. Her Social Security Administration records show that she has worked in retail, sales, as a waitress, substitute teacher, dispatcher, and in food-services. Thus, she has experience in both physical and sedentary employment. VA treatment records from May 2012 shows that her psychiatrist found her to be “stable from a psychiatric standpoint.” Given this, she was given a letter indicating that she can care for her children. The Veteran was afforded a VA examination for her only service-connected disability (schizoaffective disorder) in June 2012. The examiner opined that the Veteran’s schizoaffective disorder was productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or; symptoms controlled by medication. At the time of examination, the Veteran had the opportunity to report symptoms related to her psychiatric disability. She reported taking her children to the park, cleaning, cooking, doing laundry, and going to picnics and to movies. She went out to eat with her children and denied problems managing her children or their behavior. She bathed and groomed regularly, enjoyed going shopping at the mall and Walmart, watched TV, went to church weekly or twice a week, and went to church social activities. She was doing online classes for a master’s degree, but had not completed them. She had friends at church that she would sometimes interact with in the community or on the phone. She also attended her daughter’s softball league games. Essentially, she reported being able to handle her everyday life duties as a mother and was also able to engage in social activities outside of her children. When asked why she felt she was unemployable, she stated that she gets social security disability. When asked what else makes her unemployable she stated that in the past when she stopped taking medications she did not do well and lost jobs. The examiner stated: “it should be noted Veteran has been stable on medication for several months and can voice that she has realized going off medication is not a good option for her.” Her only reported symptoms were euthymic mood, some fatigue, and minor concentration issues. She denied psychotic symptoms, suicidal ideation, homicidal ideation, or harm ideation. She stated things were “going pretty good” and that she was managing well. The Board acknowledges that prior to the appeal period, the Veteran had several hospitalizations related to her schizoaffective disorder including in December 2007, at which time she was experiencing symptoms of paranoia. The records indicate that this was as a result of medication non-compliance. Private treatment records from July 2008 also show that the Veteran experienced severe postpartum depression. The Board also acknowledges that the Veteran has been awarded Social Security benefits as a result of her psychiatric disorder. However, these benefits were granted prior to the appeal period at a time when the Veteran’s psychiatric condition was more severe. During the appeal period, the Veteran’s schizoaffective disorder has been found to be stable; she was previously unstable as a result of her not taking her medication consistently. The Board finds it highly probative that the Veteran’s schizoaffective disorder was found to be less severe than it is currently; however, the Veteran is currently able to hold gainful employment in spite of her schizoaffective disorder. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In sum, the Board finds that a TDIU is not warranted prior to July 10, 2016, as the evidence does not establish that the Veteran’s schizoaffective disorder precluded her from obtaining and maintaining substantially gainful employment. Moreover, a TDIU is not warranted from that date as the Veteran is currently employed. REASONS FOR REMAND Entitlement to service connection for residuals of gall bladder removal, claimed as stomach condition, is remanded. The Veteran seeks entitlement to service connection for residuals of gall bladder removal (claimed as stomach condition). The evidence shows that she had a history of cholelithiasis, confirmed by ultrasound in October 2015, and subsequently underwent cholecystectomy. She contends that she was treated in service for stomach problems that she believes were essentially indications of a gall gladder issue. Her service treatment records show that in June 1999 she was seen for an upset stomach with frequent diarrhea that began approximately four nights prior. To date, a VA medical opinion has not been obtained addressing whether service connection is warranted on a direct basis. Further, the November 2018 VA examination addressing whether the medication the Veteran takes for her schizoaffective disorder caused her gall bladder condition is incomplete. The report does not address whether the Veteran’s gall bladder condition is aggravated by these medications. As such, a remand is warranted. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician regarding the residuals of the Veteran’s gall bladder removal. The need for an in-person VA examination is left to the discretion of the examiner. After reviewing the claims file, the examiner is asked to opine: (a) Whether the residuals of gall bladder removal are at least as likely as not directly related to service, to include the Veteran’s noted in-service complaints of stomach pain/diarrhea; (a) Whether the residuals of gall bladder removal are at least as likely as not aggravated by the medications she takes for her service-connected schizoaffective disorder (which include buspirone, prazosin, and risperidone). (Continued on the next page)   A complete rationale for any opinion rendered must be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, Associate Counsel 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.