Citation Nr: 21062365 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-22 393 DATE: October 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran has had multiple service-connected disabilities with at least one rated 40 percent or more and a combined rating of at least 70 percent throughout the appeal period, but he has not been precluded from substantially gainful employment consistent with his history due to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1998 to August 2002. During a June 2020 Board hearing for disability ratings that were on appeal and addressed in a November 2020 Board decision, the Veteran asserted that he was unable to work or received special treatment in prior employment due to his traumatic brain injury (TBI) and associated symptoms. As noted in that Board decision, this raised the issue of entitlement to a TDIU as part and parcel of the underlying claim for an increased rating for TBI, which proceeded from an October 2013 rating decision, and the issue of TDIU is under the Board's jurisdiction as part of that appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2020, the Board remanded the issue of TDIU for the Veteran to submit a formal TDIU claim (VA Form 21-8940) and any other needed development. A January 2021 rating decision and supplemental statement of the case (SSOC) denied a TDIU, and that issue now returns to the Board. The Board also remanded the issue of service connection for a low back disability in November 2020. As this issue was granted in full in a December 2020 rating decision, and no appeal was submitted, it is no longer before the Board. 1. Entitlement to a TDIU A TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, a schedular percentage threshold must be met. If there is only one service-connected disability, it shall be ratable at 60 percent or more; 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. However, VA may still grant TDIU on an extraschedular basis if this threshold is not met if the evidence shows unemployability due to service-connected disabilities. 38 C.F.R. § 4.16. In determining unemployability, there is an economic component, which includes whether any employment was marginal, and a non-economic component, which includes mental and physical capacity based on occupational history, education, skills, and training. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Consideration should be given to prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Gleicher v. Derwinski, 2 Vet. App. 26 (1991); Pederson v. McDonald, 27 Vet. App. 276 (2015). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In this case, the Veteran has multiple service-connected disabilities, and he now has a combined 100 percent rating, effective since October 17, 2013, as explained below. A TDIU is not moot if it can be granted based on a single disability, such that he would be entitled to special monthly compensation based on single disability rated 100 percent (to include based on TDIU) and other disabilities that combine to at least 60 percent. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010); 38 U.S.C.§ 1114(s); 38 C.F.R. § 3.350(i). The Veteran has met the schedular threshold with one disability for TDIU purposes rated at least 40 percent and a combined rating of at least 70 percent effective since November 2009, several years prior to the appeal period. The Veteran's TBI or head injury post-concussion syndrome was rated 10 percent effective since 2002, and his PTSD was rated 30 percent effective since November 2009. However, because his PTSD is associated with his TBI, those disabilities combine to a single disability rated at 40 percent under 38 C.F.R. § 4.25 for meeting the TDIU percentage threshold. 38 C.F.R. § 4.16(a). The Veteran also had compensable ratings since at least 2009 for service-connected disabilities of tinnitus (10 percent), cervical strain or a neck disorder (20 percent), the left knee (10 percent), the right knee (10 percent), and the right ankle (10 percent). An April 2014 rating decision granted service connection for right and left upper extremity radiculopathy (rated 20 percent each) associated with the neck disorder, effective since October 17, 2013, which raised the combined rating to 80 percent. More service-connected disabilities or increased ratings were subsequently added, which increased the combined rating to 90 percent, effective January 1, 2014, and to 100 percent, effective December 14, 2018. He was awarded benefits for migraines associated with TBI, rated 40 percent, effective January 1, 2014; PTSD was increased to 50 percent, effective January 1, 2014; left upper extremity radiculopathy was increased to 40 percent, effective December 14, 2018; left upper extremity radiculopathy was increased to 30 percent, effective December 14, 2018; and the left knee was increased to 20 percent, effective December 14, 2018. The December 2020 rating decision upon remand granted service connection for the Veteran's low back disability and associated neurologic impairment. He was awarded service-connected ratings for the low back (40 percent), left lower extremity sciatic and femoral nerves (20 percent each), right lower extremity sciatic and femoral nerves (20 percent each), effective October 17, 2013. This increased his combined rating to 100 percent, effective October 17, 2013. Although the Veteran has multiple highly rated disabilities, the evidence does not establish that he has been unable to secure or maintain substantially gainful employment consistent with his educational and occupational history due to service-connected disabilities during the appeal period to warrant a TDIU. As directed in the prior remand, VA requested the Veteran to complete a VA Form 21-8940, which would provide information as to his employment, earnings, and educational history, in November 2020. The Veteran did not respond to this request, and the available evidence indicates that he has been employed at several points. The evidence also does not establish that he had marginal employment based on his earnings or on a facts found basis, to include a protected environment. As noted above, the Veteran asserted during a June 2020 Board hearing that he was unable to work or received special treatment in prior employment due to his traumatic brain injury (TBI) and associated symptoms. He has been awarded service connection for PTSD and migraines as associated with his TBI. VA treatment records through 2011 noted effects on the Veteran's work due to his PTSD (including anger issues) and migraines (including pain). A May 2010 record noted the provider's opinion that the Veteran's current mood disorder and TBI would have significant deleterious effects on his ability to maintain full-time gainful employment. However, this was several years prior to the appeal period. An April 2012 record noted the Veteran's report that he had to drop out of some classes at school due to frequent severe headaches. However, a November 2012 record noted that he was currently attending community college full-time and working at an auto parts store part-time. The provider assessed difficulty with memory and attention that was most likely related to multiple factors, including TBI, sleep disturbance, pain issues, depression, and PTSD. During the appeal period, an August 2013 evaluation for treatment noted that the Veteran had memory difficulties, migraines, ear ringing (tinnitus), multiple mental health symptoms due to a current stressful situation, but he got along with his coworkers and had no significant learning difficulties. The primary current concern was stability of mood and management of anger, frustration, and stress. Treatment records in June 2014 and September 2014 noted continued migraines with pain and blurred vision at times. An April 2015 record noted reported that he currently worked in an automotive and sales business and was a student. His hobbies were working on his car and caring for his child. A February 2016 record noted that the Veteran's PTSD was chronic and stable, and he had the "usual stress" associated with schoolwork and his job, but overall, he was doing well. A December 2020 VA examination noted that the Veteran was employed. He reported work impacts of losing 1 to 2 weeks in the last 12 months as a delivery driver due to his back disability, and his right leg goes numb when he sits for extended periods of time and he has significant pain from getting in or out of a car. The available evidence does not establish physical or mental incapacity due to service-connected disabilities. Although the Veteran may have been unemployed at times, the mere fact of unemployment or difficulty obtaining employment does not show unemployability for VA purposes. He has not provided evidence to determine whether any of his employment was marginal, and he attended school full-time at times as well, which requires a certain amount of physical and mental capacity. In summary, the preponderance of the evidence is against finding that the Veteran is unemployable due to service-connected disabilities to warrant a TDIU. There is no reasonable doubt to resolve in his favor, and the appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.