Citation Nr: 21073403 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-01 262 DATE: December 8, 2021 ORDER A total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT During the entire rating period on appeal, the Veteran has maintained substantially gainful employment and was not rendered unable to obtain or maintain substantially gainful employment as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from November 1987 to December 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In a July 2021 decision, the Board, in pertinent part, found that the issue of entitlement to a TDIU had been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded for initial development. A supplemental statement of the case (SSOC) addressing the issue of entitlement to a TDIU was issued in October 2021, and the Board finds the instant matter ripe for adjudication. The Veteran testified from Indianapolis, Indiana, at an April 2017 Travel Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2018). During the course of this appeal the Veteran received adequate VCAA notice, VA obtained all relevant documentation to the extent possible, and the Veteran received adequate examinations. As such, the Board finds that the duties to notify and assist in this case have been fulfilled. TDIU is Denied Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 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). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for consideration under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service (Director), for consideration under § 4.16(b) is warranted in all cases of veterans who are unemployable by reason of service connected disabilities, but whose disabilities do not meet the combined rating percentage standards set forth in § 4.16(a). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) 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. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service connected disabilities alone are of sufficient severity to produce unemployability. 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 evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned 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 may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). As discussed above, in a July 2021 decision, the Board found the question of entitlement to a TDIU raised pursuant to Rice, and remanded the TDIU issue for initial Agency of Original Jurisdiction (AOJ) adjudication. Specifically, the Board note that in several correspondences to the Board the Veteran had asserted using the Family and Medical Leave Act (FMLA) to take substantial time off work due to service connected orthopedic disabilities, and found this was sufficient to raise the issue of entitlement to a TDIU. As such, the Board remanded the TDIU issue for initial AOJ adjudication. In its July 2021 remand, the Board directed the AOJ to send the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The AOJ sent the Veteran a copy of the form, and instructions for completing the form, in August 2021. Unfortunately, the Veteran failed to subsequently complete and submit the VA Form 21-8940. Nonetheless, as the evidence of record is sufficient to find that the Veteran is currently working (or will likely soon be working) at full time substantially gainful employment, the Board finds remand to obtain the missing employment information to not be necessary at this time. Having reviewed all the evidence of record, lay and medical, the Board finds that, during the entire rating period on appeal, the weight of the evidence shows that the Veteran has maintained substantially gainful employment and was not rendered unable to obtain or maintain substantially gainful employment as a result of service-connected disabilities. The Veteran received a VA knee examination in September 2021. While the VA examiner assessed that the Veteran's service-connected orthopedic disabilities substantially impacted the Veteran's ability to work, and had resulted in the Veteran losing five weeks of work time in the last 12 months, it was noted that the Veteran was currently working full time at an automotive manufacturing plant. Per a subsequent September 2021 VA treatment record, it was reported that the Veteran was currently employed for an automotive manufacturer, where he had been so employed for the past 20 years. This is supported by the Veteran's testimony at the April 2017 Travel Board hearing. While the Veteran was on long-term disability at that time for problems related to various service-connected orthopedic disabilities, it was noted that the Veteran was currently receiving medical treatment and was planning to return to work. To date, VA has not received evidence supporting that the Veteran will not be returning to full-time substantially gainful employment at the automotive factory following treatment for the service-connected orthopedic disabilities. Further, VA has not received evidence supporting that the Veteran's employment is protected, pays below the poverty line, or is otherwise not substantially gainful. (Continued on the next page) In sum, the evidence of record reflects that, for the entire rating period on appeal, the Veteran has maintained full-time and substantially gainful employment at an automotive manufacturing plant. While the Veteran has lost significant time in the past due to the service connected orthopedic disability symptoms, and while the Veteran was on long-term disability as of September 2021 due, at least in part, to the service connected orthopedic disability symptoms, the Veteran is intending to return to full-time substantially gainful work in the future. The evidence currently of record does not show that the Veteran will be unable to return to work due to the service connected orthopedic disability symptoms or functional impairments. For these reasons, the Board finds that the weight of the evidence is against a TDIU at any point during the rating period on appeal. As the preponderance of the evidence is against entitlement to a TDIU, the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.