Citation Nr: 21004062 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 13-34 190 DATE: January 25, 2021 ORDER As of September 27, 2016, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT As of September 27, 2016, the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW As of September 27, 2016, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard from July 2005 to April 2008. He served on active duty for training from August 15, 2005, to December 2, 2005; inactive duty for training from July 10, 2006, to July 14, 2006, and July 31, 2006, to August 4, 2006, and active duty for training from March 16, 2007, to May 8, 2007. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2011 by a Department of Veterans Affairs (VA) Regional Office. In June 2015 and August 2017, the Board remanded the case for additional development. In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2018 and June 2018, the Board again remanded the case for additional development and it now returns for further appellate review. Given the Veteran’s election to appeal his increased rating claims for panic disorder, subluxation of left shoulder, and subluxation of right shoulder to the Board via the Evidence Submission Lane in the modernized appeals system, the Board will issue a separate decision addressing those claims at a later date, if otherwise in order. Entitlement to a TDIU as of September 27, 2016. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words, a “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist 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). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the U.S. Court of Appeals for Veterans Claims defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include 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 U.S. 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. The instant appeal stems from August 24, 2010, the date service connection was awarded for his psychiatric, bilateral shoulder, and left knee disabilities. See Rice, supra. However, in a May 2019 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for panic disorder with a 100 percent rating and special monthly compensation at the housebound rate from August 24, 2010, to September 27, 2016. Thus, a TDIU for such period is moot. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the issue on appeal is entitlement to a TDIU as of September 27, 2016. From September 27, 2016, to March 7, 2019, the Veteran is service-connected for panic disorder, evaluated as 70 percent disabling; limited motion of the right shoulder, evaluated as 20 percent disabling; limitation of motion of the left shoulder, evaluated as 20 percent disabling; left knee patellofemoral syndrome, evaluated as noncompensably disabling; subluxation of right shoulder, evaluated as 20 percent disabling; and subluxation of left shoulder, evaluated as 20 percent disabling, with a combined disability rating of 90 percent. As of March 7, 2019, the Veteran’s panic disorder is evaluated as 50 percent disabling, which results in a combined disability rating of 80 percent until May 7, 2019, when he was awarded service connection for limitation of flexion of the left knee and tinnitus, each evaluated as 10 percent disabling. Based on such awards, the Veteran is in receipt of a combined disability rating of 90 percent from May 7, 2019, to September 1, 2019, at which time the evaluations for his subluxation of right shoulder and subluxation of left shoulder were reduced to zero percent. Thus, the Veteran is in receipt of a combined disability rating of 80 percent as of September 1, 2019. Given such ratings, he meets the schedular threshold for consideration of a TDIU for relevant appeal period beginning September 27, 2016. With regard to the Veteran’s education, the record indicates he obtained his GED and attended two semesters of college. Additionally, the evidence reflects the Veteran’s participation in VA Vocational Rehabilitation & Employment (VR&E) during the appeal period. In November 2016, the Veteran requested to change his career path in order to obtain schooling towards a career in the intelligence community. He reported that he would need a Bachelor’s Degrees to obtain such a position. A January 2017 Employment Plan shows the Veteran was to maintain employment as a Head Instructor for Personnel Security with Up North Industries, LLC from January 2017 to December 2017. A letter submitted with the record in April 2017, however, shows the Veteran requested that VA send him to school for a Bachelor’s Degree in the field of anthropology and archeology. A Rehabilitation Plan dated in August 2017 indicates the Veteran would be attending West Kentucky Community & Technical College to complete an Associate Arts degree by May 2019 and attending Southern Illinois University-Carbondale thereafter to obtain a Bachelor’s Degree by May 2021. The Veteran’s undergraduate transcript shows he obtained a 4.0 grade point average for the 2017 fall semester. Correspondence dated in May 2018, September 2018, and January 2019, however, indicates the Veteran’s VR&E program was interrupted because he was unable to participate currently in his rehabilitation program “due to personal or medical reasons,” and an April 2019 correspondence shows a proposal to close his VR&E program. A March 2019 Initial Evaluation of Residuals of Traumatic Brain Injury (TBI) Disability Benefits Questionnaire (DBQ) indicates the Veteran had stopped attending classes two years ago due to feeling overwhelmed around so many people. Nevertheless, correspondence dated in May 2019 indicates VA found the Veteran had the training required to work in counterterrorism, private security, or as a bodyguard based on his completion of multiple courses. Thus, VA found that he met the criteria for Maximum Rehabilitation Gain. Moreover, a June 2019 Rehabilitation Plan shows the Veteran was to complete the curriculum for a private investigator via Penn Foster College by January 2020. A December 2019 Standard Case Management report indicates the Veteran was taking classes online to become a private investigator, but was not motivated due to feeling like he was not learning anything. Additionally, the VA counselor noted the Veteran was not working “as he knows there are some restrictions with SSDI”. According to the evidence, the Veteran’s VR&E plan was placed into an interrupted status because his current plan had expired and the pandemic was creating issues with choosing a viable goal. Notably, the correspondence did not indicate the Veteran had been unable to pursue his courses due to a service-connected disability or disabilities. With respect to his work history, the Veteran reported on his VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940), that he worked as a contractor for the Navy from 2017 to 2018. Prior to such, he worked as a dishwasher for a restaurant and McDonald’s from 2009 to 2010, and in construction from 2006 to 2008; he also served in the National Guard from July 2005 to April 2008. As to the impact the Veteran’s service-connected physical disabilities had on his occupational functioning, the May 2016 Knee and Lower Leg Conditions DBQ and Shoulder and Arm Conditions DBQ indicate he would not be able to perform the duties of a job that required a lot of standing, climbing stairs or ladders, squatting, crawling, kneeling, lifting, or carrying. In September 2019, the corresponding DBQs show the Veteran had difficulty walking, squatting, driving, lifting, and putting on clothes. A September 2019 Hearing Loss and Tinnitus DBQ indicates the Veteran’s service-connected tinnitus made it difficult for him to fall asleep. Notably, however, the Veteran’s representative asserted at the March 2018 Board hearing that, although the Veteran’s service-connected bilateral shoulder and left knee disabilities would make “physical” employment difficult, such would not preclude sedentary employment. Rather, the Veteran and his representative contended that his TDIU claim was based on his psychiatric disability and TBI. However, as noted in the June 2020 decision, he withdrew his appeal pertaining to the issues of entitlement to service connection for TBI and posttraumatic stress disorder (PTSD). Nevertheless, the Veteran’s service-connected panic disorder is currently rated as 70 percent disabling prior to March 7, 2019, and 50 percent disabling thereafter and, as noted above, a high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. In this respect, following psychological examination of the Veteran in September 2016, a VA examiner characterized his level of occupational and social impairment due to his mental diagnoses as resulting in only an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Specific to the Veteran’s service-connected panic disorder, the VA examiner noted he stayed home much of the time to avoid anxiety, which restricted his range of occupational activities. Similarly, in March 2019, a VA examiner determined the Veteran’s psychiatric disabilities, diagnosed as panic disorder and sedative, hypnotic, or anxiolytic use disorder (substance use disorder), resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The symptoms attributable to such were depressed mood, anxiety, panic attacks more than once a week, and chronic sleep impairment. On VA examination in November 2019, the VA examiner reported the Veteran had not sought employment over the last six months, but instead had been in more intensive treatment for his psychiatric symptoms. The VA examiner summarized that the Veteran’s symptoms, to include depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, continued to have “a significant adverse impact on his occupational life” and found the Veteran’s panic disorder was now properly diagnosed as PTSD. When considering both such disorder and his substance use disorder, the VA examiner specifically characterized the Veteran’s occupational and social impairment as resulting in reduced reliability and productivity. Here, the Board finds the probative evidence described above does not show the Veteran’s service-connected disabilities alone are of sufficient severity so as to render him incapable of performing the physical and mental acts required by employment consistent with his education and work history during the pertinent period. Notably, none of the VA examiners who examined the Veteran psychologically and/or physically found his service-connected disabilities precluded employment. Here, the Board affords significant probative weight to the VA examiners’ opinions as such were based on physical and psychological examinations of the Veteran and a review of the record, to include his medical history, work history, and lay statements. Moreover, although the Veteran’s educational background and work history is checkered with multiple career paths and changes, the record indicates the inconsistent nature of such was due more to the Veteran’s own preferences and the job market in general than his service-connected disabilities. In fact, when he attended school, he performed very well, thus demonstrating that he is able to perform the mental acts necessary for gainful employment. In a similar vein, the Board notes the record reflects the Veteran’s apparent hesitation and/or inability to engage in gainful employment for fear of losing his disability benefits from the Social Security Administration. Further, the Board finds the higher ratings assigned for the Veteran’s service-connected panic disorder more than adequately compensate him for his level of occupational impairment during the appeal period. Notably, the question of employability is ultimately a legal one, not a medical one. Here, the Board finds that, as of September 27, 2016, the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against such claim, the benefit of the doubt doctrine is not applicable. Therefore, a TDIU as of such date is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.