Citation Nr: 21004494 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-17 667 DATE: January 27, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence of record does not show the Veteran was unemployable due to service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1990 to March 1994. These matters come to the Board of Veteran’s Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In May 2019, the Veteran and his wife appeared at a Board hearing and testified before the undersigned Veterans Law Judge. 1. TDIU is denied. The Veteran's claim of entitlement to a TDIU was part and parcel of his underlying claim of entitlement to increased ratings for his shoulder condition. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran submitted a non-initial claim for increased evaluation of his shoulder condition on March 1, 2012. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question 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, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). 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). Prior to May 3, 2016, the Veteran meets the schedular criteria for a TDIU, as he is service-connected for the following: obstructive sleep apnea, evaluated as 50 percent disabling; lumbosacral strain, rated as 10 and 20 percent disabling; impingement syndrome of the left shoulder, rated as 10 and 20 percent disabling; left leg radiculopathy, rated as 10 percent disabling; migraine headaches, rated as 0 percent disabling; generalized muscle spasms of the neck, rated as 10 percent disabling; residuals of an ankle fracture, rated as 20 percent disabling; generalized muscle spasms of the right ankle, rated as 10 percent disabling; left knee arthritis, rated as 10 percent disabling; generalized muscle spasms of the right knee, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; left knee scar, rated as zero percent disabling; sinusitis, rated as zero percent disabling; impairment of the thigh due to right hip spasms, rated as 10 percent disabling; and impairment of the thigh due to left hip spasms, rated as 10 percent disabling. His combined disability rating for this period is 90 percent. Thus, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated as at least 40 percent disabling, and his combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16 (a). On and after May 3, 2016, the Veteran’s combined evaluation was 100 percent. As above, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated as at least 40 percent disabling, and his combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16 (a). In this regard, receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008) (holding that a TDIU rating may still form the basis for assignment of special monthly compensation under 38 U.S.C. § 1114). Although no additional disability compensation may be paid when a total schedular disability is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (“SMC”). TDIU is denied because the Veteran apparently remained employed at various parts of the appeal period. August 2016 medical treatment records noted that the Veteran was fully employed following his active duty service, working as a security guard at Sears and then as a truck driver. The Veteran also submitted a resume in July 2012 that detailed his work history from April 1997 to the present. It noted that the Veteran had been employed as a police officer for Aberdeen Proving Ground for $47,000 a year from October 2007 to March 2011. From March 2011 to Jul 2012 it was noted that the Veteran was a police officer for the Philadelphia VA at $56,000 a year. Medical treatment records through to November 2015 noted that the Veteran was still employed as a police officer with the Philadelphia VA. A medical treatment record from September 2016 noted that the Veteran had a new job with the Perry Point VA. An August 2017 VA record, the Veteran reported he was working a desk job. In a September 2019 VA record, it was noted the Veteran was a VA employee. In September 2020, the VA requested additional information from the Veteran regarding this issue. One of the items they requested was information sheets from his former employers. The Veteran did not respond. The Board finds that TDIU is not warranted, as it appears that the Veteran was gainfully employed. Although there is incomplete information regarding the precise dates of employment and whether such was gainful, the Veteran did not respond to VA’s attempts to obtain more information. See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary). VA examinations and medical treatment records indicated impacts on working, but not unemployability. Accordingly, TDIU is not warranted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.