Citation Nr: 21004169 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 12-29 591 DATE: January 26, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT For the entire TDIU rating period from February 1, 2010, the Veteran was not unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. CONCLUSION OF LAW The criteria for the award of a TDIU have not been met or approximated for any period from February 1, 2010. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1983 to January 1986, and from April 1988 to January 2010. This matter is on appeal from a January 2011 rating decision. In this case, the duties to notify and assist have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. In September 2020, the Board denied an initial rating higher than 10 percent for an essential tremor and remanded the issue of entitlement to a TDIU for development after finding that it had been raised by the record as part of the initial rating appeal for essential tremor. To comply with the remand directive, the Agency of Original Jurisdiction (AOJ) asked the Veteran to provide additional evidence in support of a claim for TDIU within 30 days from the date of the letter; however, the Veteran did not respond to the letter. For these reasons, the Board finds that there has been substantial compliance with the prior remand directives. TDIU Legal Criteria Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the 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. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. A veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran’s employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. For a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. 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 is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the 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). 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, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); 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). TDIU Analysis For the entire TDIU rating period from February 1, 2010 (i.e., the day after service retirement), the service-connected disabilities are as follows: a psychiatric disability, rated at 70 percent; obstructive sleep apnea and bronchitis, rated at 50 percent; a left wrist disability, rated at 10 percent; a back disability, rated at 10 percent; tinnitus, rated at 10 percent; gastroesophageal reflux disease (GERD), rated at 10 percent; right iliac crest scar, rated at 10 percent; left wrist scar, rated at 10 percent; left ankle instability, rated at 10 percent; essential tremor, rated at 10 percent, and several other disabilities, rated at 0 percent (i.e., a left knee disability, a right knee disability, sinusitis, erectile dysfunction, left upper arm scar, and onychomycosis). The combined disability rating is 90 percent. Because the Veteran is service connected for two or more disabilities with at least one disability rated at 40 percent or higher (i.e., psychiatric disability at 70 percent and OSA and bronchitis at 50 percent), and the combined rating is 70 percent or higher (90 percent), the threshold percentage requirements for TDIU eligibility under the provisions of 38 C.F.R. § 4.16(a) are met for the TDIU rating period on appeal. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that a TDIU is warranted for any period. Because the Veteran did not complete and return a VA Form 21-8940 in connection with the TDIU appeal, the Board must render its decision based on the limited evidence of record. Based on the available evidence of record, the Board notes that the Veteran reportedly has four years of college education and worked as a restaurant assistant manager from May 2010 to January 2011, as a claims analyst at a VA medical facility from September 2011 to May 2012, and stocked shelves at a home improvement store from May 2013 to May 2016. See October 2017 VA PTSD examination report. The Veteran has reportedly worked at multiple jobs during the TDIU rating period for periods ranging from eight months to three years and reportedly left a job in 2016 because he bought a recreational vehicle and moved away from the area. While there appears to be significant gaps of time between employment periods, no marginal employment during the TDIU rating period has been shown, and the Veteran’s current employment status is uncertain. (Continued on the next page)   Considered together with the more than 24 years of active service immediately prior to the beginning of the TDIU rating period, the fact that the Veteran was able to work multiple jobs during the TDIU rating period, with one job lasting approximately three years and ending only when the Veteran decided to move away from the area, strongly suggests that the service-connected disabilities were not so sufficiently incapacitating so as to preclude substantially gainful employment. For these reasons, the Board finds that the evidence weighs against finding that the service-connected disabilities were of sufficient severity to have rendered the Veteran unable to obtain or maintain substantially gainful employment during the rating period to which the TDIU attached; therefore, the criteria under § 38 C.F.R. § 4.16(a) for the award of a TDIU are not met or approximated at any time, so the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferguson, 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.