Citation Nr: 21001940 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 08-26 173A DATE: January 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disability does not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW For the entire period on appeal, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from September 1998 to July 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2013, the Board, in pertinent part, denied entitlement to a TDIU. The Veteran appealed this denied claim. In January 2015, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR) by counsel for the Veteran and VA, vacated the Board's January 2015 decision as to the issue of entitlement to a TDIU, and remanded this matter to the Board for action consistent with the JMR. In June 2015, June 2017, and September 2019, the Board remanded this appeal for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to a TDIU. It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 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. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. For a TDIU, the critical question is whether the Veteran's service-connected disabilities alone are sufficient to cause unemployability, not any nonservice-connected condition. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991) The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). There is no regulatory definition of "substantially gainful employment." 38 C.F.R. § 4.16(a) provides guidance in that it states: "Marginal employment shall not be considered gainful employment." It also says definitively that marginal employment exists when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Even if the income exceeds the poverty threshold, marginal employment may still exist on a facts-found basis. One example given is employment in a protected environment like a family business or a sheltered workshop. 38 C.F.R. § 4.16(a). VA must consider the nature of employment. Id. Notably, in Ray v. Wilkie, the Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v, 31 Vet. App. 58, 73 (2019). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director, Compensation Service, (Director) for consideration. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board did so in this case in September 2019. The AOJ referred the claim for an extraschedular rating to the Director in December 2019. In an October 2020 decision, the Director denied an extraschedular rating, and the AOJ continued the denial in a supplemental statement of the case dated that same month. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court has determined that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Here, the Veteran in receipt of service connection for posttraumatic stress disorder (PTSD) (rated 30 percent disabling, effective July 19, 2007); a right shoulder disability (rated 20 percent disabling, effective July 19, 2007); radiculopathy of the right upper extremity (rated 20 percent disabling, effective August 25, 2016); cervical spine strain (rated 10 percent disabling, effective July 19, 2007); tinnitus (rated 10 percent disabling, effective July 19, 2007); gastroesophageal reflux disease (GERD) (rated 10 percent disabling, effective July 19, 2007); left foot plantar fasciitis (rated 0 percent disabling, effective July 19, 2007, and 10 percent disabling, effective November 21, 2011); thoracolumbar spine strain (rated 0 percent disabling, effective July 19, 2007, and 10 percent disabling, effective September 20, 2016); a left ankle injury (rated 0 percent disabling, effective July 19, 2017); and right shoulder surgical scars (rated 0 percent disabling, effective July 19, 2017);. The Veteran’s combined rating is 60 percent, effective July 19, 2007, and 70 percent, effective August 25, 2016. He does not meet the schedular criteria for entitlement for a TDIU for any portion of the period on appeal. The Veteran was employed as a sheriff’s deputy from 2012 to 2014. See Veteran’s resume, added to VA Veteran Readiness and Employment (VRE) folder in July 2017. In 2014, the Veteran voluntarily left this position because he and his family relocated. See January 2016 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Since 2014, the Veteran has been unable to secure employment as a police officer. He is able to pass the written test for employment, but he cannot pass the physical portion of the examination due to his service-connected disabilities. See September 2016 social industrial survey. Since his family relocated in 2014, the Veteran has stayed at home to care for his children. See August 2016 VA examination report. He has also been attending school and working with vocational rehabilitation to start his own business. See college transcripts and resume, added to VA VRE folder in July 2017. The record indicates that during the pendency of this appeal the Veteran obtained a bachelor’s degree. Previously, the Veteran worked as a security guard for six months prior to service, as medic for approximately nine years during service, and subsequent to service as an environmental officer for two years and a police officer for two years. See Veteran’s resume, supra; DD-214; August 2016 VA examination report. The Veteran reported he is unable to run, climb ladders, perform activities involving heavy lifting, or turn his head quickly; there is additional indication the Veteran has pain with prolonged standing and sitting. See August 2016 and September 2016 VA examination reports. Additionally, the Veteran has reported difficulty with concentration due to his service-connected disabilities. See February 2008 VA treatment record; but see November 2011 VA examination report (indicating memory, attention concentration, and executive functions appear intact). However, the Board finds that while these limitations maybe impede the Veteran’s ability to find employment, they do not exclude the Veteran from obtaining and maintaining substantially gainful employment. To the contrary, the Veteran has indicated on numerous occasions that his service-connected disabilities do not limit his ability to perform necessary physical tasks. The Veteran reported being able to care for his children and perform all activities of daily living including, cooking, cleaning, driving, and taking out the garbage. See August 2016 VA examination report. He stated that there was no physical activity that he is unable to do. Id. Additionally, the Veteran reports regularly performing Pilates for weight reduction and as part of his pain management routine. The Board acknowledges the September 2016 VA examiner’s opinions that the Veteran’s ability to perform physical duties of employment was limited due to his service-connected cervical spine, right shoulder, ankle, and left foot disabilities. However, the Veteran’s statements indicate he is not precluded from all physical activities. See August 2016 VA examination report. Additionally, the Veteran’s education and work history are substantial, as detailed above. The mere fact that the Veteran is unable to secure employment in his preferred field, or has difficulty securing employment, is not sufficient to grant a TDIU. For the reasons stated above, the Board finds that the record does not demonstrate that the Veteran is incapable of obtaining or maintaining substantially gainful employment due to his service-connected disabilities. The Board is cognizant that the Veteran’s service-connected disabilities affect his employability, as evidenced by his combined rating of 60 percent prior to August 25, 2016, and 70 percent thereafter. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. 38 C.F.R. §§ 3.321 (a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: “[g]enerally, 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 also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, upon review of the record, the Board finds the preponderance of the evidence is against finding the Veteran is precluded from substantially gainful employment due to his service-connected disabilities. As such, the benefit of the doubt doctrine is inapplicable, and the claim for TDIU must be denied. 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski 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.