Citation Nr: 21064955 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-22 310A DATE: October 22, 2021 ORDER From June 30, 2018, but not earlier, a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT From June 30, 2018, the Veteran's service-connected disabilities have precluded him from securing and following substantially gainful employment. CONCLUSION OF LAW From June 30, 2018, but not earlier, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2009 to July 2012. The case is on appeal from an August 2013 rating decision. Most recently, in a March 2021 decision, the Board granted service connection for bilateral ankle sprain, and denied service connection for foot fungus, and higher ratings for neck and low back disabilities. At that time, the Board also remanded the TDIU claim for further consideration. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Marginal employment is not considered substantially gainful employment and is 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. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016); Cantrell v. Shulkin, 28 Vet. App. 382 (2017). Facts The Veteran contends that he is unable to work due to his service-connected disabilities. he has submitted several TDIU applications. In a September 2020 TDIU application, the Veteran indicated he worked 30 or more hours per week until June 2018. Additionally, in the October 2020 TDIU application the Veteran reported that he last worked full-time June 29, 2018. He stated his last employment was in a factory for Georgia Pacific, 40 hours per week. With regard to his education, the Veteran indicated he graduated college with a bachelor's degree in 2018. Most recently he reported working as a farm manager with varying hours. The Board notes that the Veteran's overall combined rating is 100 percent from July 14, 2021. The Veteran was afforded a December 2012 VA psychiatric examination in which the examiner found his depression causes occupational and social impairment with occasional decrease in work efficiency. The noted symptoms included depressed mood, as well as suicidal ideation. An October 2015 medical opinion was submitted in which the examiner concluded the Veteran's depression causes occupational and social impairment with deficiencies in most areas. The examiner indicated his psychiatric symptoms include mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, neglect of personal appearance and intermittent inability to perform activities of daily living. The examiner further opined that the Veteran struggles to sustain employment in a competitive work environment. She noted the Veteran has been working temporary or part-time jobs and his depression has caused occupational dysfunction and poor work quality. She stated sustaining and maintaining meaningful gainful employment is not possible due to his psychiatric condition. The Veteran was afforded a January 2020 VA examination in which the examiner opined the Veteran's depression causes occupational and social impairment with deficiencies in most areas. She found severe psychiatric symptoms, including chronic sleep impairment, impaired judgment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances and impaired impulse control. The Veteran submitted a September 2020 statement in which he stated he had multiple jobs from 2012 to 2018, many of which were part-time, including as a cashier, assisting elderly people, a moving company, and for retail stores. The Veteran further reported he began college in 2013 and went part-time until 2018, at which time he graduated with a bachelor's degree. He noted that in 2015 and 2016 he did not work full-time because he was taking college courses. He further indicated he worked at a hardware store which led to increased anxiety. A September 2020 opinion was submitted from a vocational consultant which indicated the Veteran is totally disabled from all employment due to his service-connected disabilities. She stated the Veteran has been totally disabled due to his service-connected disabilities since his separation from service in July 2012. The Veteran was afforded an additional November 2020 VA examination in which the examiner opined the Veteran's depression causes occupational and social impairment with deficiencies in most areas. She similarly found severe psychiatric symptoms, including impaired judgment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The Veteran most recently submitted a June 2021 TDIU application in which he reported he currently works as farm manager with varying hours. In a July 2021 statement, the Veteran indicated that in 2019 he did not work at all and in 2020, he made approximately $19,000 while working for a farmer. He stated working for the farmer is a good employment situation, as his schedule is flexible, he can miss days of work occasionally when he needs to, there is minimal pressure and reduced contact with other people. Analysis After a careful review of the evidence of record, the Board determines the Veteran's service-connected disabilities have prevented substantially gainful employment from June 30, 2018. The Board finds that the combined effects of the Veteran's disabilities, including his service-connected depression, have caused severe symptoms which prevented all employment since June 2018. Moreover, any work performed by the Veteran after June 2018, including the Veteran's current position on a farm, is considered no more than marginal in nature and is not determined by the Board to constitute substantially gainful employment. The medical evidence of record shows the Veteran has experienced severe psychiatric symptoms during the appeal period. An October 2015 medical opinion from a psychologist indicated the Veteran's depression causes occupational and social impairment with deficiencies in most areas. She noted symptoms including mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, neglect of personal appearance and an intermittent inability to perform activities of daily living. Similarly, VA examination reports from January 2020 and November 2020 indicated the Veteran's psychiatric symptoms include chronic sleep impairment, impaired judgment, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances and impaired impulse control. Thus, the Veteran's psychiatric disorder prevents him from all substantially gainful employment. With regard to the effective date for the grant of a TDIU, the Board finds an effective date prior to June 30, 2018 is not warranted. As noted, the Veteran reported in the September 2020 TDIU application that he worked 30 or more hours per week until June 2018 for Georgia Pacific. Additionally, in the October 2020 TDIU application, the Veteran reported that he last worked full-time June 29, 2018. He confirmed that his last employment was with Georgia Pacific, working 40 hours per week. The Board notes Social Security Administration (SSA) records have been obtained which show reduced earnings prior to 2018, indicative of part-time or limited employment. Moreover, SSA records indicate the Veteran earned $18,105 in 2018, $3,684 in 2017, no earnings in 2016, $3,299 in 2015, $2,460 in 2014 and $5,518 in 2013. However, during this period, the Veteran was also attending college and graduated with a bachelor's degree in 2018. In the September 2020 TDIU application, he specifically stated, "I went to school to try and find a better job." Further, the Veteran reported that in 2015 and 2016, he did not work full-time because he was taking college courses. Therefore, while the Veteran experienced occupational impairment due to his psychiatric disability prior to June 30, 2018, he exhibited the ability to take college courses and eventually graduate, as well as work in various jobs part-time. Thus, the Board finds his service-connected disabilities prevented all substantially gainful employment from June 30, 2018, but not earlier, based on the Veteran's own reports. (Continued on the next page) Next, the Veteran meets the schedular criteria under 38 C.F.R. § 4.16(a). The Board notes the Veteran's depression is rated as 70 percent disabling from July 26, 2012. Thus, the schedular criteria per 38 C.F.R. § 4.16(a) have been met. In sum, after resolving any reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities prevented him from securing and following substantially gainful employment since June 30, 2018, the date he reported he stopped working full-time. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, a TDIU is warranted from June 30, 2018. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.