Citation Nr: 21063588 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-18 133 DATE: October 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2009 to July 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This matter was previously before the Board, in May 2021. At that time, the claim for a TDIU was remanded in order to afford the Veteran an updated VA examination as to the severity of his service-connected back disability. As the record reflects that the examination occurred, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). TDIU The Veteran contends that his service-connected back disability and adjustment disorder render him unemployable. In order to be entitled to a TDIU, the evidence must show that the Veteran was incapable "of performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent, and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Here, the Veteran is service connected for adjustment disorder, lumbar strain, bilateral shin splints and high blood pressure. He has a combined disability rating of 80 percent from December 22, 2015, including a 70 percent rating for adjustment disorder. The Veteran thus met the schedular requirement for a TDIU by December 22, 2015. The record reflects that the Veteran has not been employed since his discharge from active duty. The Veteran participated in the Veteran Readiness and Employee (VR&E) program, was a full-time student from 2014 and obtained an Associate Degree in Computer Technology and Network Repair in December 2020. In July 2021, VR&E determined that the Veteran was "Job Ready" based on completion of his degree. A December 2015 VA examination for the Veteran's back found no functional impact. An August 2016 VA examination for the Veteran's back noted that he had restrictions lifting, pushing, pulling, or carrying objects more than ten pounds and could not participate in high impact activities. A May 2018 VA examination for the Veteran's back condition similarly noted that he had restrictions on back twisting, bending, heavy lifting, carrying, pushing, pulling, prolonged standing and ambulation activities. April 2019 VA examinations for the Veteran's back and legs noted that he was unable to sit or stand for long periods of time, had difficulty climbing stairs and was unable to lift or carry heavy objects. The post-remand July 2021 VA examination for the Veteran's back disability concluded that his condition did not preclude him from securing or maintaining substantially gainful employment. According to the examiner, the Veteran could not perform heavy lifting, prolonged ambulation or prolonged driving, but could perform a clerical position with ergonomic accommodations. VA examinations conducted in December 2015, August 2016 and May 2018 for the Veteran's adjustment disorder noted that he had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The August 2016 and May 2018 VA examiners noted that mood instability could limit the Veteran's capacity to interact effectively and on a sustained basis with other individuals and that his ability to interact with the public or respond appropriately to authority could be limited. The Veteran reported to the May 2018 examiner that he had problems concentrating as a full-time student and the examiner noted that the Veteran's condition was mostly stable. The April 2019 VA examination for the Veteran's adjustment disorder noted that his condition was stable, which was a good predictor for future employment activity. The Veteran was noted to have 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. The Veteran reported in his April 2019 TDIU application that he had a difficult time sitting and standing and could not lift heavy objects. He testified at the April 2021 Board hearing that he is in constant pain and cannot stand or sit for extended periods of time without pain. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's service-connected disabilities preclude him from obtaining or maintaining any form of substantially gainful employment. While the VA examinations for the Veteran's back reflect limitations in his ability to engage in physical employment, the record also reflects that the Veteran successfully completed a degree in computer technology during the appeal period and is considered "job-ready" by the VR&E program. The VA examinations for the Veteran's mental health disorder recognize some limitations in terms of the Veteran's interaction with others, but do not indicate that the Veteran would be precluded from securing or maintaining substantially gainful employment based on his adjustment disorder symptoms. The Board has also considered the Veteran's lay assertions. While the Veteran is competent to describe his symptoms and limitations of his disabilities, the objective medical evidence of record reflect that the Veteran would be able to use his degree to perform non-physical work. The Board thus concludes that the Veteran was not unemployable and the claim for a TDIU is denied. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.