Citation Nr: 21005082 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-17 712 DATE: January 28, 2021 ORDER A total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude the Veteran from obtaining or maintaining gainful employment consistent with his level of education and work history. CONCLUSION OF LAW The criteria for a TDIU are not met at any time during the appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 Regional Office (RO) rating decision, in which the RO denied the Veteran’s claim entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. The Veteran timely filed a Notice of Disagreement (NOD) in June 2015. The RO issued a Statement of the Case (SOC) in April 2016, and the Veteran submitted a timely VA Form 9 Substantive Appeal to the Board in April 2016. In November 2019, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (sitting in Washington, D.C.). A transcript of that proceeding is of record. In March 2020, the claim was remanded as inextricably intertwined with several other issues then pending before the Board. Notably, the Veteran was assigned temporary total disability ratings from July 28, 2015 through September 30, 2015 for convalescence post-left shoulder surgery; from October 16, 2018 through March 31, 2019 due to surgery requiring convalescence; and from June 2019 to July 31, 2020 for convalescence post right knee replacement surgery. Because the Veteran is already compensated with temporary total ratings for each of the periods requiring convalescence, this decision addresses whether the Veteran is unemployable due to service-connected disabilities for periods other than those during which the Veteran is already compensated with a temporary total rating. TDIU Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16 (a) where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system and/or disabilities resulting from common etiology or a single accident are considered as one disability, including, for example, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; and, disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, and neuropsychiatric. Id. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a veteran is unemployed or has difficulty obtaining employment is insufficient to support a grant of TDIU. See 38 C.F.R. § 4.16(b); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence must show the veteran is incapable of performing the physical and mental acts required by employment by reason of his service-connected disabilities alone. alone prevent that veteran from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(b). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. 38 C.F.R. § 4.16(a). 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. Id. Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. 1. Entitlement to a TDIU The Veteran contends that he is entitled to a TDIU due to service-connected disabilities. See, e.g. November 2019 Board Hearing transcript. Specifically, in his October 2014 Application for Increased Compensation Based on Unemployability, he asserted that right knee osteoarthritis, left knee osteoarthritis, and low back condition caused his unemployability. In July 2015, he reported that his (now service-connected) left shoulder strain with impingement syndrome, rotator cuff tear and tendonitis, status-post arthroscopic repair rendered him unable to remain employed. See Application for Increased Compensation based on Unemployability dated July 2015. In a February 2016 VA Form 21-8940, Application for Increased Compensation based on Unemployability, the Veteran reported that he became too disabled to work January 26, 2016. At his November 2019 Board hearing, he generally asserted that he was unemployable because of all of his service-connected disabilities. See Board Hearing transcript, p. 8. In an October 2014 Application for Application for Increased Compensation based on Unemployability, the Veteran reported that he worked from December 2004 to June 2014 as a casualty adjuster. He reported that he last worked full-time in June 2010, and became “too disabled to work” on June 11, 2012. The Veteran completed his Licensed Vocational Nursing diploma (LVN) in September 2014 - three months after the June 2014 date he reported as his last day of work, and one month before he filed the TDIU claim. See Application for Increased Compensation based on Unemployability received in July 2015. In a January 2015 VA Form 21-4192, request for employment information, the Veteran reported that he last worked in June 2010 as a claims administrator. In an Application for Increased Compensation based on Unemployability which was received in July 2015, the Veteran stated that he worked from October 2014 to June 2015 as a licensed vocational nurse/medication manager. He states that he became too disabled to work May 22, 2015, but was last employed full-time June 5, 2015. He stated that he left the job because of disability and had not attempted to obtain employment since then. The Veteran reported “[my] treating physician took me off of work due to my increasing pain [in the left shoulder], the nature of my job and due to my upcoming (June 18, 2015) left shoulder surgery. As a result, I was informed by my employer [] that they would not save my job and terminated my employment.” See also private check-up note dated May 2015 (reporting that he did not believe he would be able to work due to his shoulder pain). A Veteran-provided Disability Benefits Questionnaire received in July 2015 indicates that the Veteran was “temporarily totally disabled as of May 22, 2015 through September 18, 2015” because of his left shoulder disability. See also Private Operative report dated June 18, 2015. An October 2015 VA case manager note shows that the Veteran attended a VRT Government Career Workshop. He was given information for how to apply for jobs, including government jobs. In May 2016, the Veteran reported that he was unemployable because he was prescribed Tylenol 3 for his service-connected left knee and right knee conditions, and thus would be unable to pass a drug test to gain employment. See May 2016 Report of General Information. As noted above, the Veteran reported in the February 2016 VA Form 21-8940, Application for Increased Compensation based on Unemployability, that he became too disabled to work on January 26, 2016. However, he did not indicate the date on which he in fact last worked full-time, and in addition, he specifically reported that he did not leave his last job because of his disability. Furthermore, he did not provide the requested list of each employer for whom he has worked at any time within the five years preceding the claim. A February 4, 2016 letter from a private physician shows that the Veteran reported being employed as a licensed vocational nurse and was in good standing with the board of vocational nurses. A private medical clearance note shows that the Veteran was found physically able to carry out the essential functions for “success in health care programs,” including prolonged periods of physical exertion such as standing and pushing, positioning, and transferring patients; 8-12 hour shifts; extremely heavy lifting; and considerable reaching, stooping, bending, kneeling and crouching. In February 2016, VA notified the Veteran that the VA Form 21-8940 upon which his application was submitted was incomplete because he had not listed his previous employers and dates of employment over the prior five years. The Veteran has not since provided VA with the requested information. A May 2016 VA examiner opined that the left shoulder strain impacts the Veteran’s functional ability because he has to avoid climbing ladders, working at unprotected heights, overhead reaching, and crawling activities. The Veteran was employed as a licensed vocational nurse from October 17, 2016 to December 31, 2019, including a period of workers’ compensation leave from June 17, 2017 to December 31, 2019. See, e.g. November 2019 Notice of Involuntary Transfer, Demotion, or Termination. The Veteran reported at private treatment that he sustained a leg injury on June 17, 2017 while at work. See private treatment note dated October 11, 2018. The Veteran reported that he was “pulling a patient” at work and sustained a leg injury and now has a herniated disk. The private clinician indicated that the Veteran’s herniated disk requires L4-L5 surgery. The Veteran reported at a private orthopedist appointment in July 2017 that he worked 40 hours per week. The Veteran completed a Notice of Involuntary Transfer, Demotion, or Termination report, related to his job as a licensed vocational nurse, in November 2019. The notice indicated that he was to be laid off effective December 31, 2019. He indicated that after that date, he was interested in securing permanent employment, in either a full-time or part time position. He listed Santa Ana, Norwalk, Anaheim, and Orange as locations where he was interested in working. Pursuant to those selections, he was added to a Reemployment list for licensed vocational nurses with the Departments of Mental Health and Developmental Services. At his November 2019 Board hearing, the Veteran stated “I do not know which capacity I could sit in right now with current restrictions. No pushing, pulling, lifting anything over 10 pounds. No sitting or standing more than 20 minutes at this point.” Turning to whether a TDIU is warranted during the appeal period, the Veteran’s combined disability rating did not meet the schedular criteria under 38 C.F.R. § 4.16 (a) for consideration of a schedular TDIU prior to May 20, 2015. Moreover, the record does not otherwise show that the Veteran was incapable of obtaining or maintaining gainful employment prior to that date. Accordingly, the criteria for a TDIU are not met prior to May 20, 2015. Concerning the entirety of the appeal period, and with consideration for the several dates upon which the Veteran reported he became unemployable, the Veteran has either been gainfully employed, or was seeking employment, throughout. For instance, the Veteran was employed until June 2014, and completed his nursing diploma in September 2014. His report of unemployability beginning in June 2014 is inconsistent with him finishing his nursing degree just four months later, in October 2014—he earned the degree so that he could go return to work as a nurse. He worked from October 2014 to June 2015, and then was on the job hunt in October 2015. He reported that he became too disabled to work on January 26, 2016, yet per his own report to a private physician in February 2016, he was still employed as a licensed vocational nurse; and, he was found physically able to perform the essential functions of the job. Finally, he was then continuously employed from October 2016 until December 2019. In November 2019, he specifically reported in the Notice of Involuntary Transfer, Demotion, or Termination that he wished to again be employed as a licensed vocational nurse after layoff. Also in November 2019, and as noted above, the Veteran testified before the undersigned Judge, under oath, that he did not believe he could be employed in any capacity. This directly conflicts with what he reported in the November 2019 Notice of Involuntary Transfer, Demotion, or Termination report, in which he effectively indicated his belief that he remained employable as a licensed vocational nurse. Considered along with his numerous contentions of unemployability during periods when he was in fact employed, the Veteran’s credibility in this regard is questionable, and his testimony carries little probative value. While the record shows that there were specific isolated periods of time when the Veteran was not working, being unemployed is not synonymous with being unemployable. Moreover, as noted above, the appeal period includes several periods of time when the Veteran required hospitalization or necessitated convalescence following surgery. During these time periods, the Veteran was compensated with a temporary total rating pursuant to 38 C.F.R. § 4.29 and/or 4.30. Thus, it has already been acknowledged that the Veteran had isolated periods when he was unable to work due to service-connected disabilities, and he was compensated accordingly with the assignment(s) of a temporary total rating during those time periods. Again, though, the assignment of a temporary total rating based on the need for convalescence following surgery is likewise not synonymous with unemployability. In sum, the Veteran’s periods of employment and the numerous attempts to secure employment in the interim periods between jobs belie his contentions of unemployability. Moreover, assignment of a TDIU must be denied as a matter of low for all times during the appeal period when the Veteran was gainfully employed, including as a licensed vocational nurse. In light of the foregoing, a TDIU is not warranted at any point during the appeal period. There is no reasonable doubt to resolve in the Veteran’s favor, and the claim is denied. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.