Citation Nr: 20043537 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 13-09 594 DATE: June 29, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The available evidence has not shown that the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities alone. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25, 4.26 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to January 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a prior remand on this claim in February 2018. TDIU It is the established policy of VA that all veterans who are unable to secure and 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.” See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  For the above purpose of one 60 percent disability, the following will be considered as one disability: (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. §4.16(a).  If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, 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; see also Van Hoose, 4 Vet. App. at 363. Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). VA regulations define marginal employment in two ways: (1) employment that produces income that does not exceed the poverty threshold for one person established by the U.S. Department of Commerce, Bureau of the Census, or (2) employment that produces income above the poverty threshold but is in a protected environment such as a family business or sheltered workshop. 1. Entitlement to a TDIU. The Veteran is currently service-connected for degenerative disease of the lumbar spine at 20 percent, radiculopathy of the left lower extremity associated with degenerative disease of the lumbar spine at 10 percent, and an acquired psychiatric disorder associated with degenerative disease of the lumbar spine at 50 percent, for a combined disability rating of 60 percent. As each of the Veteran’s service-connected conditions have resulted from a common etiology, the 60 percent threshold for one disability has been met. Turning to the second requirement, whether it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the Veteran submitted an application for TDIU in September 2009, wherein he indicated that he became too disabled to work in November 2008 due to his back. The Veteran was given a VA examination for his back condition in March 2010, at which x-ray findings were within normal limits and the examiner opined “The effects of the condition on the claimant’s usual occupation is no limitations.” The Veteran was also given a VA examination for his psychiatric disorders in March 2010. Here, the examiner diagnosed the Veteran with major depressive disorder, single episode, moderate, without psychotic features, alcohol abuse, in sustained full remission, and amnesic disorder not otherwise specified. With regard to the Veteran’s conditions, the examiner wrote “In my opinion, the Veteran is completely unable to perform any type of work. His inability to perform work is the result of his depressive disorder, disorganization, inability to attend to daily tasks and dementia.” The Board notes that the Veteran is not service connected for dementia or any amnesic disorder. In September 2017, the Veteran, through his representative, provided a private opinion with regard to his psychiatric disorders. This examiner diagnosed the Veteran with major depressive disorder with psychotic features, for which he opined the Veteran’s service-connected back pain was a major contributor. This examiner also diagnosed the Veteran with alcohol abuse in sustained remission and an amnesic disorder not otherwise specified. He then wrote “I also believe that there is considerable overlap of the symptoms of the Veteran’s depression and his amnesic disorder. Both, for example, would impair his concentration and limit his initiative.” Aside from this statement, the Veteran’s private examiner did not provide any opinion regarding the Veteran’s depressive disorder and his occupational limitations resulting from such. However, the Board notes that when asked if he believed he could work during this telephone interview, the Veteran stated “I don’t think now. The pain don’t never leave. I had another procedure about a month ago. I don’t do anything except sit right here.” Based on the private September 2017 opinion, in a February 2018 decision, the Board granted service connection for an acquired psychiatric disorder under the benefit-of-the-doubt doctrine. The Board also remanded the TDIU claim to be readjudicated by the RO after the Veteran was awarded a disability rating for his psychiatric disorder. In a March 2019 rating decision, the RO assigned a 50 percent rating for the Veteran’s acquired psychiatric disorder based on a review of the evidence. Following this rating decision, the RO scheduled VA examinations for the Veteran’s back and psychiatric conditions in April 2019 for further development of the TDIU claim. However, these examinations were later cancelled as the Veteran failed to report. When a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655(a); Turk v. Peake, 21 Vet. App. 565, 569 (2008). In this case, the scheduled examinations were both necessary to establish entitlement to a TDIU. The current evidence of record does not support a finding that the Veteran’s service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation. Specifically, the March 2010 VA examiner opined that the Veteran was unable to work but noted that this was in part because of the Veteran’s dementia, a condition for which he is not service connected. Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The Board notes that the Veteran has been granted disability benefits from the Social Security Administration (SSA). However, SSA considered impairments of spine disorders, affective disorder, and anxiety disorders in making their decision. In December 2009, the Veteran underwent a consultative examination for SSA benefits, and the examiner made provisional diagnoses of depressive disorder, posttraumatic stress disorder, noncompliance with treatment, cannabis abuse, and noted a deferred diagnosis of possible borderline intellectual functioning. While the Veteran is service connected for an acquired psychiatric disorder, a VA examination is required to determine his symptoms and the limitations thereof with regard to VA regulations, which differ from SSA regulations. Moreover, neither the Veteran nor his representative, provided good cause for the Veteran failing to report at his scheduled VA examinations. The Board notes that the Veteran, through his representative, has subsequently requested a higher-level review of the March 2019 rating decision assigning a 50 percent rating for his acquired psychiatric disorder, indicating the Veteran’s continued pursuit of his claim. However, no further argument with regard to the Veteran’s claim for entitlement to a TDIU was made, nor was a good cause statement submitted in explanation for why he missed his scheduled VA examinations. (continued on next page) 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). As the currently available evidence fails to show that the Veteran’s service-connected disabilities, alone, render him unable to follow or secure a substantially gainful occupation, entitlement to a TDIU is not warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.