Citation Nr: 21072514 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 08-39 113 DATE: December 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to December 13, 2012, is denied. FINDING OF FACT Prior to December 13, 2012, the Veteran's service-connected disabilities did not render her unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Prior to December 13, 2012, the criteria for a TDIU were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Unites States Air Force from August 2003 to December 2006. This case was most recently before the Board in February 2021, when it was remanded to AOJ for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU due to service-connected disabilities for the period prior to December 13, 2012. The Veteran is currently entitled to a TDIU as of December 13, 2012. She asserts that she is entitled to a TDIU prior to that date. A TDIU is warranted where the evidence of record shows that a veteran is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Provided, however, that, if there is only one such disability, the disability must be rated at 60 percent or more, and that, 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. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rendered totally disabled. Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a) may be granted a TDIU on an extraschedular basis following consideration by the Director of the Compensation Service. 38 C.F.R. § 4.16(b). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The phrase "unable to secure and follow a substantially gainful occupation" has been interpreted to consist of two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 73 (U.S. 2019). The economic component means 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. at 26. With respect to the noneconomic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 2628. In this case, the Veteran has Crohn's disease, rated at 30 percent disabling from December 27, 2006; bilateral pes planus, rated with a noncompensable rating from December 27, 2006, to December 12, 2012, and rated 50 percent disabling thereafter; posttraumatic stress disorder with major depressive disorder, rated at 10 percent disabling from December 27, 2006, to September 17, 2009, and rated at 30 percent disabling thereafter; left knee strain associated with Crohn's disease, rated at 10 percent disabling from December 27, 2006; right knee strain associated with Crohn's disease, rated at 10 percent disabling from December 27, 2006, left Achilles tendonitis, rated at 10 percent disabling from December 27, 2006; right Achilles tendonitis, rated at 10 percent disabling from December 27, 2006; arthritis of the right ankle, rated 0 percent; arthritis of the left ankle, rated 0 percent and arthritis of the cervical spine, rated 0 percent from July 25, 2015, to July 2, 2019, and 20 percent thereafter. The Veteran has a combined disability rating of 60 percent from December 27, 2006, and her disability rating increased to 70 percent on September 18, 2009, and then the disability rating increased again to 90 percent on December 13, 2012. Although the Veteran was rated at 60 percent on December 27, 2006, there was no disability (or combination of disabilities resulting from the same incident or etiology) equating to 60 percent. Therefore, the Veteran met the minimum schedular criteria on September 18, 2009. Pertaining to the period prior to September 18, 2009, most recently in April 2021 the Executive Director for Compensation Service determined that the evidence did not support the contention that the Veteran's service-connected disabilities prevented gainful employment. That conclusion is not binding on the Board. Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); see also Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) ("[A]lthough the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."). In the present case, the Board finds that the preponderance of the evidence is against the assignment of a TDIU prior to December 13, 2012. The Veteran was afforded a VA examination, in connection with her claim, in March 2007. It was noted that she was currently working part-time and she was a full-time student. January 2008 medical treatment records demonstrate that the Veteran reported her gastrointestinal symptoms were tolerable and she had a bowel movement once or twice a day. In December 2008 she reported chronic abdominal pain secondary to her Crohn's. In May 2009, she reported nightmares, sleep problems, crying frequently, and low energy. It was noted that she had a junior college degree, she was a full-time student and had quit her job in January 2009 to attend school. In August 2009 it was noted that she had a Crohn's flare for two months and was waking up every hour with diarrhea. The Veteran was afforded a VA examination in January 2010. It was noted that she was a full-time student since January 2007. The provider opined that the Veteran suffered a significant effect on her occupational ability due to her Crohn's described as decreased concentration, lack of stamina, weakness or fatigue, fecal incontinence, and pain. August 2010 medical treatment records demonstrate that she had daily bowel movements with some cramping. In September 2010 it was noted her intestinal symptoms were well suppressed. In October 2010 it was noted that she did not have any intestinal symptoms or flares and that she had suppression of her intestinal symptoms with no significant cramps or abdominal pain or diarrhea. In November 2010 it was noted her intestinal symptoms appeared to be in remission. In November 2010 a VA examiner opined that from a psychological standpoint the Veteran did not meet the criteria for individual unemployment, and she could secure and maintain substantially gainful employment, from a psychiatric standpoint. In January 2011 Medical Treatment Records, she reported she was not having abdominal symptoms. In February 2011 her bowel movements were without cramps frequency urgency or bleeding and it was noted here intestinal symptoms were in relative remission. May 2011 VA treatment records demonstrate that she had occasional episodes of bloody stool about once or twice a month, no cramps, with some lower abdominal tenderness. The Veteran was afforded a VA examination, in connection with her claim, in August 2011. She reported daily lower abdominal pain and diarrhea with bloody stools. She reported that she had to leave her previous job due to physical problems including knees and Crohn's symptoms. The examiner opined that the Veteran was unable to secure and maintain gainful employment due to her service-connected disabilities. It was opined that she was unable to stand or walk or do physical activity for any period of time and she was unable to do sedentary work due to her Crohn's symptoms as she needed frequent and close access to bathrooms and would frequently have her work interrupted. The examiner also opined that flare ups of Crohn's and arthritis would cause her to miss work. May 2012 VA treatment records demonstrate that she had received a bachelor's degree in English. She reported increasing pain in her abdomen with no diarrhea, and she denied blood in her stool. She reported worsening abdominal pain for one week. In July 2012 she had active inflammation and a stricture with worsening lower abdominal pain and diarrhea. It was noted that she had an incomplete response to steroids. Also, in July 2012 it was noted that symptomatically she was "OK" with one to two non-bloody bowel movements per day with nausea and vomiting. In August 2012 her abdomen was exquisitely tender to palpation in all quadrants, and it was noted her symptoms of diarrhea were not improving therefore surgery was recommended. In September 2012 it was noted she had poorly controlled Crohn's and she vomited multiple times a day and in the prior two months. The Veteran was afforded a VA examination, in connection with her claim, in October 2020. The examiner opined that during the period from 2006 to 2012 the Veteran was capable of light duty and sedentary activity. The Veteran was afforded a VA examination, in connection with her claim, in February 2021. The examiner opined that the Veteran was capable of sedentary activities. Her ambulation was markedly limited with inability to jog due to painful flat feet, tight heel cords, numbness of feet, and inflammation of the Achilles tendon. After reviewing and considering the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a TDIU for the period prior to December 13, 2012. The Board finds that for the period prior to December 13, 2012, the Veteran's disability picture taken as whole did not preclude her from securing or following substantially gainful employment. First, the Board notes that although the Veteran was employed for a portion of the period on appeal, May 2009 Medical Treatment Records state that she quit working in January 2009 to attend school full-time. Specifically, May 2009 Medical Treatment Records demonstrate that she reported to her clinical psychologist that she did very well as a cashier but quit in January 2009 to attend school. In fact, her education level changed throughout the period on appeal. She graduated high school and by May 2009 she had completed a junior college degree. Id. May 2012 VA treatment records state she completed a bachelor's degree in late 2011. The Board acknowledges that the Veteran's service-connected disabilities undoubtedly result in additional difficulties when attempting to work. However, these additional impairments are contemplated by the assigned disability rating for each individual disability. 38 C.F.R. § 4.2. The fact that a particular disability makes it more difficult or challenging to work is not synonymous with a disability or disabilities completely precluding the ability to gain or maintain substantially gainful employment. In this case, while the Veteran's service-connected disabilities undoubtedly resulted in some interference with her ability to work efficiently and effectively, primarily in that she was limited in her ability to perform prolonged standing or walking, her service-connected disabilities did not completely preclude her ability to gain or maintain substantially gainful employment. Second, the Board notes that the August 2011 VA examiner opined that the Veteran was unable to secure and maintain gainful employment due to her service-connected disabilities, however, when considering the Veteran's disability picture as a whole during the period prior to December 13, 2012, the Board finds that the Veteran's symptoms were characterized as mild and did not preclude her from securing and maintaining gainful employment. Specifically, the Veteran reported to the August 2011 examiner that her symptoms include daily lower abdominal pain and diarrhea with bloody stools. She also reported nausea. She reported that her abdominal pain occurred all day and that her diarrhea was daily and lasted all day. However, when looking at the record as a whole, the Board finds the disability picture to indicate more consistently mild symptoms with occasional episodes of worse symptoms or flare-ups. Notably, July 2012 VA treatment records indicate the Veteran was "symptomatically OK" with 1-2 non-bloody bowel movements per day. In May 2011 her VA gastroenterologist noted that the Veteran had occasional episodes of bloody stool usually about once or twice a month and she had lower abdominal tenderness. The provider noted she had mild symptomology. The characterization of her symptoms as mild and the report of occasional episodes of bloody stool is not consistent with the August 2011 VA examination. In February 2011 she reported to her VA gastroenterologist that her bowel movements were without cramps, frequency, urgency, or bleeding. She denied nausea or vomiting. The gastroenterologist noted that her intestinal symptoms were in relative remission. This note of her symptoms being in relative remission and the description of no nausea or vomiting and typical bowel movements is not consistent with the August 2011 report of symptoms. November 2010 Medical Treatment Records demonstrate her intestinal symptoms appeared to be in remission. In October 2010 it was noted she had suppression of her intestinal symptoms and had no significant cramps, abdominal pain, or diarrhea. This report of symptoms being in remission, being suppressed, etc. is not consistent with the examiner's opinion or description of the Veteran's symptoms. Because the treatment records, taken as a whole, paint a picture of mild symptomatology, the August 2011 VA examination opinion is afforded limited probative value. Additionally, the Board notes that the Veteran completed her bachelor's degree in late 2011. May 2012 VA treatment records state she completed a bachelor's degree in late 2011. The ability to complete college level educational requirements is not consistent with the VA examiner's opinion that she was unable to complete sedentary work or that she would frequently have her work interrupted. Although the January 2010 VA examiner stated the Veteran's Crohn's would have significant effects on her general occupation, the treatment notes discussed above are not supportive of work preclusive limitations as her symptoms were noted as mild and suppressed. Further the examiner opined of decreased concentration and lack of stamina. However, at the time the Veteran was completing education as a full time student. Performing such college level educational tasks suggests she was able to maintain a level of concentration that would also allow her to perform the concentration requirements of substantially gainful employment. The completion of full time college level work also demonstrates she maintained a level of stamina supportive of full time work. As such the January 2010 VA examiner opinion is afforded little probative value as it is not consistent with contemporaneous treatment records and report of symptoms. The Board notes that the Veteran experienced flares of her Crohn's during the period on appeal such as in August 2009, December 2009, and July 2012. However, given the record as discussed above, such flares were not of a frequency or severity to significantly impact her ability to perform substantially gainful employment, as she completed her college coursework during this time. The final determination with respect to a Veteran's entitlement to a TDIU is an adjudicatory, and not a medical, function. Given the above discussion, the Board finds that the probative evidence of record is against the Veteran's claim for entitlement to a TDIU prior to December 13, 2012. The Board finds that, in light of the Veteran's education, work history and training, for the period prior to December 13, 2012, her service-connected disabilities did not prevent her from gaining or maintaining substantially gainful employment. For these reasons, the claim for TDIU for the period prior to December 13, 2012, is denied. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.