Citation Nr: 21068135 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-30 696 DATE: November 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From October 26, 2010 to July 30, 2012, the Veteran did not meet the schedular criteria for a TDIU and the most probative evidence of record does not reflect that it is at least as likely as not that the Veteran was unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. 2. From July 30, 2012, the Veteran met the schedular criteria, and was gainfully employed without being in a sheltered environment. 3. From July 8, 2015, the Veteran has been in receipt of a 100 percent combined schedular rating for service-connected disabilities. CONCLUSION OF LAW 1. Throughout the entire period on appeal, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1988 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the matter for additional development by the agency of original jurisdiction (AOJ) in May 2018, December 2020, and July 2021. In July 2021, the Board instructed the AOJ to obtain any outstanding VA treatment records and contact the Veteran and ask him to complete a new VA Form 21-8940 and then readjudicate the claim. Review of the record reveals there has been substantial compliance with previous remand directives. Entitlement to a TDIU TDIU ratings 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As an initial matter, the Board notes that entitlement to TDIU was considered part and parcel of the Veteran's claim of service connection for a lumbar spine disability, which was filed on October 26, 2010. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Therefore, the Board has considered entitlement to a TDIU beginning on October 26, 2010. The Veteran has the following disabilities that are service connected: an adjustment disorder (rated 70 percent disabling, from July 30, 2012); left lower extremity radiculopathy (rated 10 percent disabling, from October 26, 2010 to August 5, 2013; 20 percent disabling, from August 5, 2013 to December 1, 2014; and 40 percent disabling thereafter); DDD of the lumbar spine (rated 10 percent disabling from October 26, 2010 to April 17, 2015; and 40 percent disabling thereafter); right shoulder impingement syndrome (rated 40 percent disabling from July 8, 2015); left shoulder rotator cuff tear (rated 20 percent disabling from November 24, 2014); chronic sinusitis (rated 10 percent disabling from October 26, 2010); left hip and thigh impairment (rated 10 percent disabling from November 13, 2015); right hip and thigh impairment with degenerative arthritis (rated 10 percent disabling from November 13, 2015); right knee degenerative arthritis (rated 10 percent disabling from November 13, 2015); right lumbar radiculopathy (rated 10 percent disabling from November 18, 2018); left hip and thigh limitation of extension (rated noncompensable from November 13, 2015); right hip and thigh limitation of extension (rated noncompensable from November 13, 2015); right hip and thigh limitation of flexion (rated noncompensable from November 13, 2015); left hip and thigh limitation of flexion (rated noncompensable from November 13, 2015); erectile dysfunction (rated as noncompensable from April 16, 2016); and rhinitis (rated as noncompensable from March 5, 2019). His combined ratings were as follows: 30 percent from October 26, 2010; 80 percent from July 30, 2012; 90 percent from November 24, 2014; and 100 percent from July 8, 2015. Entitlement to a TDIU from October 26, 2010 to July 30, 2012 Here, the Veteran did not meet the schedular criteria for TDIU as he did not have a combined rating of 70 percent and did not have at least one disability which was rated 60 percent disabling. During this period, the Veteran was service connected for degenerative disc disease (DDD) of the lumbar spine, rated as 10 percent disabling; left lower extremity radiculopathy, rated as 10 percent disabling; and sinusitis, rated as 10 percent disabling. As such, the Board finds the Veteran is not entitled to a TDIU on a schedular basis. 38 C.F.R. § 4.16 (a) (2019). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). For the reasons that follow, the Board finds that there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities, and therefore referral of the claim is not warranted. On a July 2018 VA Form 28-1902w rehabilitation needs inventory, the Veteran indicated that he earned a Bachelor's degree in criminal justice and a technical degree in massage therapy. In regard to his prior employment, the Veteran noted that he was the owner of his own dump truck company from January 2000 until April 2012, when he sold the business. He noted making an average gross monthly income of twelve thousand dollars. The Veteran also noted that he was employed as an emergency dispatcher for an engineering company, where he was responsible for dispatching emergency engineers to repair power outages. He was employed with this company from April 2012 until November 2017, when he was terminated due to health reasons. He noted receiving an average gross monthly income of four thousand seven hundred dollars. The Veteran's ability to secure and follow a substantially gainful occupation is not impacted by the physical effects of service connected DDD of the lumbar spine, left lower extremity radiculopathy or chronic sinusitis. An April 2011 VA examination report notes the Veteran's lumbar spine disability affects his job as a dump truck driver as he could not drive due to the jolting of driving. A July 2012 private medical opinion by Dr. H. J. notes that the Veteran finished his Master's in Business Administration (MBA), which he had been working on for several years and the Veteran reported that he was currently working with dump trucks, but he could not drive them anymore. The probative evidence of record does not suggest the Veteran's service-connected disabilities impacted his physical ability to work as the evidence shows the Veteran was able to continue his business as a dump truck owner and make a substantial amount of income in addition to working on his Master's degree. The medical evidence reflects the Veteran's reports of being unable to drive his dump truck due to his lumbar spine disabilities however, no medical examiner has indicated that his lumbar spine disabilities or chronic sinusitis precluded him from following a substantially gainful occupation. In fact, the evidence to include the Veteran's reports of income gained during this period, show that he was capable of following a substantially gainful occupation throughout the period. Given the forgoing, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities. As the evidence shows the Veteran was gainfully employed during this period and his service-connected disabilities only minimally impacted his ability to perform the physical and mental acts necessary to follow a substantially gainful occupation. Accordingly, referral of the claim for a TDIU for extraschedular consideration is not warranted. Entitlement to a TDIU from July 30, 2012 to July 8, 2015 The Veteran met the schedular criteria for entitlement to TDIU from July 30, 2012. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is not warranted. Here, the Veteran has asserted that he received an MBA and has owned a trucking company for over a decade and sold the company in 2012. From April 2012 to November 2017, the Veteran reported that he was employed as an emergency dispatcher for an engineering company earning a grossly monthly income of four thousand seven hundred dollars. A Social Security Administration (SSA) decision found the Veteran to be disabled from October 24, 2016, due, in part, to his back disorders. SSA records also reflect the Veteran's reported income was consistently above minimum wage earnings from 2013 to 2015. The Veteran was noted to be employed with the Eaton Corporation and the U.S. Department of Agriculture during this time. The Veteran asserted that he has lost several jobs due to his service-connected disabilities but the record shows that the Veteran has continually been employed from 2012 to 2015. Based on the foregoing, the Board finds the Veteran was gainfully employed throughout this period. Even for veterans employed on a full-time basis, entitlement to a TDIU may still be warranted if it is shown that the employment was not "substantially gainful employment," or employment providing income above the poverty level as established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). The Board notes, however, that where a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017). The record does not suggest, nor does the Veteran assert, that he did not receive income above the poverty level or had a benefit of working in a protected family employment or a sheltered workshop. The Veteran has only asserted that his service-connected disabilities make it difficult for him to maintain a substantially gainful employment as he has been fired from several jobs due to his disabilities. An April 2015 VA back examination report notes that the Veteran's lumbar spine disabilities does impact his ability to work as he can only lift 20 pounds per day, he can only walk fifty feet at one time. In an eight-hour day, the Veteran could walk up to three hundred feet, he could stand for one and a half hours and sit for four to six hours per day. An April 2015 VA mental disorder examination report notes the Veteran was currently employed as an insurance compliance investigator. The examiner noted that the Veteran's adjustment disorder would not impact his ability to communicate, remember, follow instructions, use judgment, show insight, think abstractly, interact with coworkers and/or customers, adapt to changes or stress, demands at work, working in public or in an enclosed space/cubicle or working in a loosely supervised situation. The probative medical evidence of record from private and VA physicians reflect the Veteran has had some occupational impairment but none that rise to the level of precluding him from performing the physical and mental acts required for employment. As the Veteran was gainfully employed on a full-time basis and there is no evidence that would suggest the Veteran was working in a protected environment throughout the period at issue, there is no basis in the record for entitlement to a TDIU for any portion of the relevant period. Entitlement to TDIU From July 8, 2015 Here, the Veteran is in receipt of a total combined evaluation (100 percent) based on all of his service-connected disabilities. A TDIU is considered a lesser benefit than the 100 percent scheduler rating, and the grant of a 100 percent scheduler rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. However, a grant of a 100 percent disability rating does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether the disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. at 294 (analyzing 38 U.S.C. § 1114); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99). Here, entitlement to SMC is foreclosed as a matter of law. Although TDIU may satisfy the "rated as total" element of section 1114(s), TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. The aggregation of disabilities from a common etiology may be treated as a single disability for TDIU under 38 C.F.R. § 4.16(a), but this principle does not apply to SMC. Youngblood v. Wilkie, 31 Vet. App. 412, 416-17 (2019). Instead, the 100 percent disability rating must be founded on a single disability, not a group of disabilities deemed to be one. Id. The Board has investigated whether the Veteran is entitled to a TDIU based on a single disability above and found that he is not. U.S.C. § 1114(s); Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); 38 C.F.R. § 3.350. Accordingly, entitlement to a TDIU is not warranted for the entire period on appeal. 38 C.F.R. § 4.16. Because the preponderance of the evidence is against claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.