Citation Nr: 21062341 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-15 868 DATE: October 7, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for a bipolar disorder has been withdrawn. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), as of January 10, 2014, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to January 10, 2014, is remanded. FINDINGS OF FACT 1. During a July 2021 Board hearing, and prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal of the claim of entitlement to a disability rating in excess of 70 percent for a bipolar disorder. 2. As of January 10, 2014, the Veteran meets the schedular rating requirements for entitlement to a TDIU, and his service-connected disabilities render him unable to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to a disability rating in excess of 70 percent for a bipolar disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for entitlement to TDIU, as of January 10, 2014, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to June 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran provided testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file. 1. Entitlement to a disability rating in excess of 70 percent for a bipolar disorder The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or the authorized representative. 38 C.F.R. § 20.205. At the July 2021 Board hearing, the Veteran reported that he did not want to continue the appeal concerning the issue of entitlement to a disability rating in excess of 70 percent for a bipolar disorder. Therefore, the Veteran has withdrawn the issue from the appeal. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the issue of entitlement to a disability rating in excess of 70 percent for a bipolar disorder, and the issue is dismissed. TDIU Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. When the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is considered to be 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An award of a TDIU "does not require proving 100 percent unemployability." Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, an award of TDIU requires that the claimant show that he or she has an inability "to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). When making this determination, "the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). The Board additionally "must take into account the individual veteran's education, training, and work history" but "may not consider nonservice-connected disabilities or advancing age." Id. Substantially gainful employment is that which results in earnings above the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. The ability to work sporadically or to 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 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). However, 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. Id. The question of whether the Veteran is "unable to secure and follow a substantially gainful occupation" under section 4.16(b) has two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). 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; the Veteran's physical abilities (both exertional and non-exertional) and associated limitations, if any; and the Veteran's mental abilities and associated limitations, if any. See Ray, supra. VA must assess whether the Veteran is "capable of performing the physical and mental acts required by employment." Id. at 72. In reaching such a determination, 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). Additionally, in determining whether unemployability exists for a TDIU, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by any nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes his case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Neither the effect of nonservice-connected disabilities nor of the veteran's age may be considering in determining whether TDIU is warranted. Id. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran filed a claim for TDIU in November 2011. The Veteran attended a July 2021 Board hearing and provided testimony in support of his claim for TDIU. At the Board hearing, the Veteran asserted that he is unable to work in any type of full-time employment due to his service-connected bipolar disorder. As of January 10, 2014, the Veteran has met the schedular criteria for TDIU. For this period, his service-connected compensable disabilities include bipolar disorder, rated as 70 percent disabling; and tinnitus, rated 10 percent disabling. The Veteran's combined service-connected disability evaluation is currently 70 percent. Therefore, the Veteran has met the schedular rating criteria for TDIU. As previously noted, the Veteran asserts that his service-connected bipolar disorder prevents him from following substantially gainful occupation. He notes in his claim that he worked full-time for the VA from July 2001 to May 2007. During the January 2014 VA examination for a psychiatric disability, the Veteran reported that he began working part-time in October 2012 to become operations manager for a homeless shelter, and that the shelter is open from October to April each year, and during those months he worked 24 to 32 hours a week. The January 2014 VA examiner opined that the Veteran's bipolar disorder resulted in occupational and social impairment with 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 due to his psychiatric symptoms, such as: depressed mood; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. The VA examiner concluded that the Veteran's bipolar disorder was not severe enough to prohibit him from maintaining gainful employment, as evidenced by the fact that he has worked apart-time job since October 2012, noting that he had tried to quit but his supervisor would not let him. The examiner acknowledged that the Veteran's bipolar disorder may cause occasional difficulties in work during periods of increased stress as the result of reduced motivation, low energy, poor concentration, and increased sleep disturbance. During the April 2016 VA examination for a psychiatric disability, the Veteran reported that he worked for the homeless shelter until 2015, while noting additional temporary employment. During the examination, the Veteran noted that he tends to leave most jobs because of intense anxiety as he felt overwhelmed and out of control. The Veteran acknowledged that he would miss work in order to not deal with things or have outbursts towards guests, boss, and employees, with about ten outbursts a month. The Veteran also stated that he felt frustrated, guilty, and useless. The April 2016 VA examiner provided the opinion that the Veteran's bipolar disorder resulted in occupational and social impairment with reduced reliability and productivity due to his psychiatric symptoms, including anxiety; panic attacks more than once a week; depressed mood; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in being able to establish and maintain effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. Additionally, the examiner noted that the Veteran reported having three to four episodes of passive suicidal ideation a month. The VA examiner concluded that the Veteran's bipolar disorder was not severe enough to prohibit him from maintaining gainful employment, as evidenced by the fact that he worked a part-time job until 2015, noting that he tried to obtain additional employment in 2016. The examiner acknowledged that the Veteran's bipolar disorder may cause occasional difficulties in work during periods of increased stress as the result of reduced motivation, low energy, poor concentration, and increased sleep disturbance, but he has the work skills and capability to maintain gainful employment. The VA examiner also concluded that the Veteran's bipolar symptoms do not interfere with his motivation and drive, or his capability to engage in work responsibilities, and that he has demonstrated it with his work history, even though he reported missing work and avoiding it due to his anxiety. The remaining question, then, is whether the Veteran's service-connected disabilities, primarily his bipolar disorder, render him unemployable. In this regard, as noted previously, the central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a 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). The Board acknowledges that there are VA opinions whereby the examiners opined that the Veteran would not have a significant difficulty maintaining gainful employment. The functional impairment caused by the Veteran's service-connected disabilities, employment history, educational and vocational attainment must be considered in determining whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Further, the Court has concluded that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board also finds that, in this appeal, the unfavorable evidence is outweighed by the favorable evidence for the following reasons. The Board notes that the January 2014 and April 2016 examiners were under the impression that the Veteran's seasonal part-time employment from 2012 to 2015 was substantial gainful employment. The Board disagrees and finds that this period of employment includes intermittent or marginal employment. The Board further finds the Veteran to be competent and credible regarding his assertions as to the impact of his service-connected disabilities. The Board also finds that the Veteran's assertions as to the occupational impact related to his service-connected bipolar disorder is largely consistent with the VA examiners' evaluations. As discussed above, the weight of the evidence shows that the severity of the Veteran's service-connected disabilities, mainly his psychiatric disorder, render him incapable of obtaining and retaining substantially gainful employment given his level of education, training, and work experience. Accordingly, the Board finds that a TDIU is warranted from January 10, 2014, the period during which he currently meets the schedular threshold required for TDIU. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, prior to January 10, 2014, is remanded. VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). If service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran's claim for TDIU reflects that the Veteran has not had substantially gainful full-time employment since May 2007. From October 3, 2011, to January 9, 2014, a 50 percent rating was assigned for the Veteran's bipolar disorder, and a 10 percent rating for his tinnitus, with a combined total evaluation of 60 percent. Thus, the percentage requirements for schedular entitlement to TDIU were not met prior to January 10, 2014. When the percentage requirements of 38 C.F.R. § 4.16(a) are not met, individual unemployability benefits may be granted on an extraschedular basis in exceptional cases when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). Should the Board discern a plausible basis for an extraschedular TDIU, it must refer the matter to the Director of Compensation Service for an initial decision before the Board may decide the issue. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The August 2011 VA examiner noted the Veteran's difficulties in seeking employment, and that he has significant problems with anxiety, depression, general mood instability, and suicidal ideation. The Board finds that based on these findings, there is a plausible basis for extraschedular TDIU. However, the Board may not award extraschedular TDIU in the first instance; accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of Compensation Service for the period on appeal prior to January 10, 2014. The matter is REMANDED for the following action: As TDIU could be awarded as early as October 3, 2011. Prior to January 10, 2014, the percentage requirements for schedular entitlement to TDIU are not satisfied. There is evidence that the Veteran has not worked full-time since May 2007, and that his service-connected bipolar disorder may have caused unemployability prior to January 10, 2014, without regard to other medical conditions, when his employment history and educational and vocational attainment are considered. Accordingly, the issue of entitlement to TDIU from October 3, 2011, to January 9, 2014, should be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of whether a TDIU may be assigned on an extraschedular basis. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, Associate 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.