Citation Nr: 21063922
Decision Date: 10/18/21	Archive Date: 10/18/21

DOCKET NO. 15-45 998
DATE: October 18, 2021

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU), is denied.

FINDING OF FACT

The Veteran's service-connected disabilities alone do not prevent him from securing and following substantially gainful employment.

CONCLUSION OF LAW

The criteria for a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the U.S. Marine Corps, on active duty from December 1991 to July 1993. 

This claim comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Board previously remanded this claim in April 2019, as the issue of TDIU was inextricably intertwined with the Veteran's other claims for service-connection. In April 2021, the Board remanded this claim as relevant nonduplicative records were received after the RO issued the October 2020 supplemental statement of the case (SSOC), but prior to certification of the appeal to the Board in December 2020. In light of these new records, the RO readjudicated the claim and issued a new SSOC in June 2021. As such, the Board finds that there has been substantial compliance with its remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

Entitlement to a total disability rating based on individual employability (TDIU)

The Veteran asserts that he is unable to maintain gainful employment due to the cumulative impact of his service-connected disabilities, and therefore seeks TDIU. 

A Veteran will be entitled to TDIU upon establishing he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19.

To qualify for a total rating for compensation purposes on a schedular basis, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided 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).

While the regulations do not provide a definition of "substantially gainful employment," the Court of Appeals for Veterans Claims (Court) has defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). Further, the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities, alone, are of sufficient severity to produce unemployability. See Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993). 

The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).

In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

After a review of the evidence of record, the Board determines that TDIU is not warranted because the Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation.

As an initial matter, the Board notes that the Veteran has met the schedular requirements for TDIU throughout the period on appeal. He is service-connected for: a bilateral congenital osseous deformity of the 3rd and 4th metatarsals, rated as 30 percent disabling from May 8, 2013, and 50 percent disabling from August 8, 2016; bilateral pes cavus rated as 30 percent disabling from November 3, 2020; right knee strain instability with arthritis, rated as 20 percent disabling from August 8, 2016; left knee strain instability, rated as 10 percent disabling from August 8, 2016; tinnitus rated as 10 percent disabling from April 17, 2015; right and left knee strain with limitation of motion, each rated as 10 percent disabling from August 8, 2016; and acne, rated as noncompensable from October 20, 2016.  These percentages result in a total combined rating of 80 percent from August 8, 2016, and 90 percent from November 3, 2020. 

Notwithstanding that the Veteran has met the schedular requirements for TDIU throughout the period on appeal, TDIU is not warranted because his service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. See 38 C.F.R. § 4.16(b). 

The Veteran submitted a claim for TDIU in August 2016, asserting that his then part-time employment aggravated his service-connected bilateral foot conditions. Further, he wrote that his inability to find gainful employment was also due to tinnitus, a bilateral knee condition, and an acquired psychiatric disorder. The Board notes that the referenced psychiatric disorder is not service connected. 

Next, the evidence of record indicates that the Veteran has had a history of short-term employment positions that are generally not physically strenuous. He held various jobs as a collection agent, delivery driver, pool attendant, chauffeur and personal assistant. At times, he has claimed he is self-employed as a driver running a full-time transportation business. In Social Security Administration (SSA) records from November 2015, the Veteran wrote that he stopped his self-employed work as a personal driver because his "customers didn't need" him. 

However, in July 2016 he reported to a VA treatment provider that he was again self-employed as a driver. In a July 2017 statement, he wrote that his last full-time employment was in January 2013, and that his disability began to affect his full-time employment in December 2014. Further, he stated his self-employment earns him a total of $100 per month. In April 2018 and October 2019 VA treatment notes, the Veteran reported that he continued to be self-employed as a driver, spending prolonged periods in his car daily. In an October 2020 VA treatment note, he reported that from 2015 until early 2020, he was self-employed as a personal driver specializing in airport transfers, until the Coronavirus epidemic shutdown his business. Finally, at a November 2020 VA examination he reported that he currently runs a full-time transportation business.  

While the Veteran reports earning $100 per month indicating his earning level not exceeding the poverty line, thus not qualify as being substantially gainful employment, the medical evidence of record does not show this is due to his service-connected disabilities. 

A September 2016 SSA report concluded that his overall disability picture does not prevent him from sedentary work.  Bilateral foot and knee VA examinations dated June and September 2016, January 2017, January 2019, November 2020 and August 2021, indicate that overall, the Veteran has issues with prolonged standing or walking. While the November 2020 examiner indicated functional impairment, in that his foot conditions are exacerbated by prolonged driving, this is an outlier when compared to the opinions of the other VA examiners. The 2016 examiners opined that his foot conditions cause him to be unable to stand or walk for prolonged periods, and the January 2017 wrote that due to his conditions he should avoid prolonged standing and lifting over 10 pounds, however, he was able to sit for prolonged periods. The January 2019 examiner wrote that his condition "may potentially affect" his ability to perform prolonged or strenuous weight or load bearing physical activity. At his August 2021 VA examination, he reported functional loss as the inability to conduct "prolonged drives", however, the examiner disagreed stating that his bilateral foot condition did not cause any functional loss.

The Veteran was afforded a VA examination in January 2017 for tinnitus. The examiner opined that his tinnitus was related to service and that it impacted his ability to work. The examiner based this conclusion on the Veteran's report that his tinnitus "masks" what he is trying to hear. 

Overall, the record establishes that the Veteran's service-connected disabilities cause some impairment in employment. However, the weight of the evidence, both lay and medical, does not show such an exceptional disability picture that the Veteran would be precluded from performing sedentary or administrative work that would be consistent with the type of work he performed while employed as a collection agent, personal assistant or driver. Such work does not generally involve heavy lifting or prolonged standing which could cause the Veteran difficulty due to his service-connected foot and knee conditions, as discussed by the VA examiners. Additionally, there are no opinions of record that found the Veteran unable to maintain sedentary or administrative employment as a result of his service-connected disabilities.

The Board has considered the Veteran's level of education and previous work experience. In this case, the Veteran has a Bachelor of Science in airport management, with a flight operations ground certificate. He has experience in several areas of sedentary or transportation positions, to include running his own business. As such, the Board finds that the Veteran's education and experience is consistent with an ability to perform work of a semi-skilled nature, and that his service-connected tinnitus, knee and foot conditions would not preclude working in a sedentary or administrative related position.

The Board acknowledges the Veteran's statements relating his inability to work due to his service-connected conditions. While the Veteran is competent to testify as to the symptoms he experiences, he is similarly not competent to make a determination as to his unemployability.

The Board further notes that no VA examiner has concluded that the Veteran is precluded from gaining substantial employment. To the extent that the VA examiners indicate the Veteran would face some functional limitations, the Board finds that such pain or difficulties do not substantially affect his ability to work in an administrative or sedentary role. Regardless, the Board emphasizes that while medical opinions can be probative in a TDIU determination, the determination of unemployability is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 Fed. Cir. 2013). 

As a result, the weight of the evidence is against the Veteran's TDIU claim. As such, the Veteran's TDIU claim is denied. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 

 

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald