Citation Nr: 21065822 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-15 885A DATE: October 27, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's current disabilities are not so severe as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from March 1991 to March 1997. The Veteran received the Combat Action Ribbon for his service in Somalia and the Southwest Asia Service Medal; the Veteran served in the Persian Gulf from February to May 1993. In March 2021, the Board granted separate initial 20 percent ratings for radiculopathy of the left and right lower extremities. The Board also determined that the evidence raised the issue of entitlement to a TDIU, but remanded the issue to obtain information regarding the Veteran's occupational history, to include inviting him to submit a VA Form 8940. In a May 2021 letter, the Agency of Original Jurisdiction (AOJ) invited the Veteran to submit evidence that may have helped him establish entitlement to a TDIU, to include a VA 8940. In a June 2021 Supplemental Statement of the Case, the AOJ denied entitlement to a TDIU. In a September 2021 brief, the Veteran's representative acknowledged that, to date, the Veteran has not submitted the requested VA Form 8940 or any information regarding his employment status. The Board finds that the evidence does not support entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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). Here, the Veteran satisfies the schedular criteria for a TDIU as his service-connected disabilities are collectively rated 80 percent disabling. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board acknowledges, as it did in its March 2021 remand, that the Veteran's service-connected disabilitieswhich include a psychiatric disability; a lumbar spine disability with associated neurological abnormalities affecting the lower extremities; and audiological disabilitiesimpact his ability to work. Indeed, this is noted in VA examination reports dated throughout the appeal. Critically, however, the Board finds that the most recent evidence of record pertaining to the Veteran's occupational history indicates that he is employed. Specifically, a mental health evaluation report shows that the Veteran "currently works in IT, which [he] said is going well. He noted he feels safe in his office, as it is a 'secure room' where he can work by himself." None of the other lay or medical evidence of record indicates that the Veteran is unemployed or engaged in less than substantially gainful employment. Indeed, in its March 2021 remand, the Board directed the AOJ to solicit such evidence, which it did in its May 2021 letter. There is no indication that the Veteran did not receive the AOJ's request for additional information, or the Board's remand, which invited the Veteran to submit the same. On the contrary, the Veteran's representative acknowledged having received the requests in its September 2021 brief. In sum, the Board cannot find that the Veteran's service-connected disabilities are so severe as to preclude substantially gainful employment, where, as here, he has been employed throughout the appeal. As such, the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU. For these reasons, a TDIU is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.