Citation Nr: 21074078
Decision Date: 12/14/21	Archive Date: 12/14/21

DOCKET NO. 11-16 654
DATE: December 14, 2021

ORDER

Entitlement to an evaluation in excess of 50 percent for muscle tension headaches is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran's muscle tension headaches have been assigned the maximum rating pursuant to law.

2. For the entire appeal period, the Veteran's service-connected disabilities did not prevent her from securing or maintaining substantially gainful occupation; she held non-marginal employment that was not in a protected environment throughout the appeal period.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an evaluation in excess of 50 percent for muscle tension headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code (Code) 8100 (2021).

2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty for training from September 1999 to March 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA). This case was remanded in October 2015, June 2018, January 2021, and July 2021.

In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record.

1. Entitlement to an evaluation in excess of 50 percent for muscle tension headaches.

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

The Veteran's muscle tension headaches are evaluated at 50 percent, which is the maximum schedular rating available under Code 8100. See 38 C.F.R. § 4.124a, Code 8100. Accordingly, the Veteran's claim for an increased rating for muscle tension headaches is denied as a matter of law. 

2. Entitlement to TDIU.

TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the Veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a).

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. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular percentage standards. 38 C.F.R. § 4.16(b). The initial extraschedular referral must address whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities. Snider v. McDonough, No. 19-6707 (Vet. App., Nov. 19, 2021); Ray v. Wilkie, 31 Vet. App. 58, 66 (2019).

Marginal employment shall not be considered substantially gainful employment and generally shall be 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 may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id.

Entitlement to TDIU requires impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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). In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.

The term "substantially gainful occupation" is not defined by VA regulation; however, the Court of Appeals for Veterans Claims (Court) has held that the term refers to, at a minimum, the ability to earn a living wage. A person is engaged in a "substantially gainful occupation" when that occupation provides annual income that exceeds the poverty threshold for one person. Bowling v. Principi, 15 Vet. App. 1, 7 (2001). A determination of whether a person is capable of engaging in a substantially gainful occupation must consider both that person's abilities and his employment history. Faust v. West, 13 Vet. App. 342, 355-56 (2000). 

The Court has held that, although substantially gainful employment is any occupation that provides an earned income that exceeds the Federal poverty threshold, the Board must ensure that the veteran was capable of carrying out such employment. Indeed, the phrase "unable to secure and follow a substantially gainful occupation" as two components: one economic and one noneconomic. The economic component simply 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. The noneconomic component includes a consideration of the veteran's history, education, skill, and training, along with physical and psychological abilities. Ray v. Wilkie, 31 Vet. App. 58 (2019). In Ray, the Court noted that Social Security Administration (SSA) regulations provide guidance regarding what is considered substantial. Such SSA regulations provide that work can be substantial even if it is done on a part-time basis or if claimants do less, get paid less, or have less responsibility than when they worked before. Id. at 72-73. 

Here, in this case, the Board defines substantially gainful occupation to be that which is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). It can otherwise be described 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 the veteran actually works[.]" Faust v. West, 13 Vet. App. 342, 355 (2000). To that effect, a threshold question in this matter is whether the Veteran's work throughout the appeal period was substantially gainful occupation.

The term "protected environment" is also not defined by regulation. See Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Board may consider the nature, length, and reason for termination of employment when assessing whether that employment was in a protected environment. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Factors such as the type and extent of accommodations received, the employer behavior or intent toward the veteran, and whether the veteran's income is significantly above the poverty threshold can be considered. See Arline v. McDonough, 34 Vet. App. 238 (2021) (Bartley, J., dissenting in part). In this case, the Board defines a protected environment to constitute employment wherein more than reasonable accomodation for the veteran's disabilities was required in order to secure or maintain such employment.

The appeal period for this matter begins in July 2009. From July 2009 to May 2011, the Veteran was service-connected for tension headaches (rated at 50 percent), right trapezius strain (rated at 10 percent), and right ulnar nerve irritation (rated at 10 percent). Her combined rating was 60 percent. As a result, she is not entitled to schedular TDIU for the period prior to May 5, 2011. However, the Board will determine whether the matter should be referred for extraschedular TDIU.

For the period from May 5, 2011, the Veteran is also service-connected for unspecified depressive disorder. The disorder was rated at 30 percent prior to February 8, 2021 and at 70 percent thereafter. As a result, she meets the rating requirements for schedular TDIU for the period from May 5, 2011.

The Veteran was employed as a correctional officer from 2001 to July 2011. Her work included supervision of officers and handling stressful situations calmly. See, e.g., resumé received January 2017. She reported that she had suicidal thoughts and behavior prior to her dismissal and believed she was terminated for her psychiatric problems. See January 2012 VA mental disorders examination. She later reported that she also had many headaches and was missing work, which helped lead to her suicidal thoughts. See March 2018 Board hearing.

Starting in December 2011 the Veteran worked full-time as a security supervisor. She ran the operations of the security department and her duties included performing the hiring process. She reported regular and timely attendance at work and that she "learned quick." See January 2012 mental disorders examination. She was initially missing a lot of work, but a new position opened up and she was able to work from home. As of March 2018, she still held that position, but could miss about two to three days of work a week. However, she reported that she was usually able to put in 40 hours per week. Indeed, she had done a bit of work while she was waiting for her Board hearing to begin. She tried to take a job at Lowe's in January 2017 to help supplement her salary but ended up quitting after nearly a year because she was missing too many days at work. See resumé received January 2017; March 2018 Board hearing.

While she was working as a security supervisor, the Veteran also went to school. At first, from August 2011 to June 2012, she went to a technical college to begin her higher education. Thereafter, from August 2012 to December 2016, she was a full-time student and obtained a degree in Human Services. She also reported working on a master's degree during her March 2018 Board hearing. In addition to her full-time job and schooling, she tried to take a job at Lowe's in January 2017 to help supplement her salary but ended up quitting between six months to a year because she was missing too many days at work. See resumé received January 2017; March 2018 Board hearing; March 2018 email correspondence.

VA treatment records largely support the Veteran's reported employment and school history. In March 2013 VA treatment records, she reported that she was working again without problems, along with attending school. Around January 2014, she obtained a promotion. See January 2014 VA treatment records. In October 2015, she reported that she was an account manager and continued to go to school. In March 2017, she reported that she was working three jobs and co-parenting a child with mental health issues. In August 2018, she reported that she would miss work because of her headaches.

During an October 2020 VA headaches examination, the Veteran reported that she lost two jobs in the last 18 months. She was currently employed; however, she was missing a great deal of time from work due to her headache condition. In January 2021 VA treatment records, she reported that she was just fired for missing work. By March 2021, she had obtained new employment, but stated that she had difficulty retaining employment over the past 10 years. See March 2021 mental disorders examination; see also March 2021 VA treatment records. July 2021 VA treatment records confirm that the Veteran still held her new full-time and part-time positions.

The Board notes that VA provided the Veteran the opportunity to submit income and employment information in February 2021 correspondence, but the Veteran did not reply. This request post-dated her termination in January 2021 but pre-dated her new employment that began in early March 2021. Regardless, the request was still within a short period of time before the new employment began and the Veteran had the opportunity to inform VA about her new jobs as a result of the February 2021 VA correspondence. The Agency of Original Jurisdiction (AOJ) did not issue a new decision until August 2021, which was well after the Veteran's new employment began. Once again, she had the opportunity to respond to the request for information and notify the Board as to her new employment history. The duty to assist is not a one-way street. If the Veteran wants help, she cannot passively wait for it in those circumstances where her own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991). For these reasons, another remand to attempt to obtain new information is not warranted.

Although the Veteran has reported that she has had difficulty maintaining employment throughout the appeal period, her employment history reflects otherwise. She initially held a full-time job for 10 years and thereafter held her second position for at least over 6 years. The Board acknowledges that the Veteran lost her first job due to her psychological state in 2011; however, she was able to recover and obtain long-standing employment within a few months thereafter. The Board also acknowledges that she quit a second job at Lowe's due to missing work, but such evidenceincluding when considered with the circumstances of her 2011 terminationis outweighed by her consistent full-time employment history. Although there were periods of a few months in between full-time employment, such evidence is not considered probative of unemployability because the periods were short and not reasonably different than any other periods of unemployment between jobs that others in the work force may experience. Indeed, even though she reported in October 2020 that she lost two jobs within the past 18 months, she was able to secure more full-time and part-time employment within only a couple of months and there was no further evidence to support that she has had difficulty maintaining her new jobs.

Additionally, the fact that the Veteran was able to obtain a bachelor's degree and a master's degree during the appeal period also weighs against a finding that she was unable to secure and maintain employment, because it suggests that she was capable of carrying out complex tasks and multi-tasking priorities and responsibilities. Despite changing full-time jobs, she was able to complete these degrees and expand her qualifications to assist with obtaining new employment. Thus, such evidence also outweighs the Veteran's self-reports of difficulty maintaining employment during the appeal period.

There is no evidence that the Veteran's income from her full-time work was marginal, despite her reports of needing to work additional jobs to supplement her income. Income statements from 2013 reflect that she made above the poverty threshold for one person. See May 2018 correspondence. She reported that she worked additional jobs because her new income was not the same as her previous income, but not because she was obtaining marginal income. As discussed above, substantially gainful occupation can include work even if claimants do less, get paid less, or have less responsibility than when they worked before. Thus, her needing to supplement her income, without further evidence that she was making below the poverty threshold or was unable to earn a living wage, is not considered probative evidence of marginal employment or an inability to secure and maintain substantially gainful occupation. Thus, the evidence reflects that her work throughout the appeal period was substantially gainful.

Additionally, the preponderance of the evidence reflects that the Veteran's full-time employment was not in a protected environment. At most, she received accommodations during her employment starting in December 2011, which included flexible hours and the ability to work from home. These accommodations are reasonable and accessible to the general population regardless of disability. Moreover, she was provided such accommodations after she was promoted, suggesting she was excelling at her previous position rather than given the accommodations due to particular benevolence. The evidence reflects that, with the reasonable accommodations provided to her, she was able to perform her job duties satisfactorily and her employer did not otherwise shield her from consequences of nonperformance or poor performance of job duties. There is no evidence that the employment was principally charitable or rehabilitative. There is little, if any, additional evidence suggesting any other accommodations during her full-time employment.

In sum, the Veteran's full-time work during the appeal period was consistent despite a few intermittent periods in between jobs and that she was able to maintain such positions for a significant period of time that lasted years. Moreover, her full-time work provided her a living wage and is considered substantially gainful occupation. Although she could not maintain an additional job at Lowe's due to her service-connected disabilities and she took that job to supplement her income, such employment does not detract or outweigh the evidence that her full-time work provided her a living wage. The preponderance of the evidence reflects that her full-time work was not marginal and not in a protected environment. As a result, her service-connected disabilities, when considered alone or together, did not prevent her from securing and maintaining substantially gainful occupation.

As discussed above, extraschedular consideration of TDIU would be required for the period prior to May 5, 2011. Because the Veteran held full-time employment as a correctional officer for that period and the Board has found that such non-protected employment is considered substantially gainful occupation, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable due to her service-connected disabilities, whether considered alone or together. As a result, referral for extraschedular consideration is not warranted. 

To be clear, the Board acknowledges that the Veteran had significant symptoms due to her service-connected disabilities that resulted in some occupational impairment during the appeal period. In particular, her headaches and her unspecified depressive disorder affected her ability to work. However, she is already compensated for those limitations because those disabilities have been assigned compensable ratings. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from service-connected disabilities and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Thus, the Veteran is already compensated for her impairment in earning capacity throughout the entire appeal period; the Board's findings herein do not mean that the Veteran's symptoms did not have an impact on her ability to work. Rather, the purpose of TDIU is to compensate those veterans who are unable to maintain gainful employment due to their service-connected disabilities, as they are otherwise unable to earn a living. Here, the Veteran demonstrated she was capable of earning a living wage and engaging in non-marginal employment outside of a protected environment. Thus, the preponderance of the evidence, as discussed in detail above, warrants the conclusion that the Veteran is not entitled to TDIU and she is already properly compensated for her impairment in earning capacity by the Rating Schedule. 

The question of entitlement to TDIU is a factual determination by the VA adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Because a preponderance of the evidence reflects that the Veteran's service-connected disabilities, when considered alone or together, did not prevent her from securing and maintaining substantially gainful occupation, entitlement to TDIU must be denied.

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Sandler, 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.