Citation Nr: 21074207 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 14-23 026 DATE: December 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities have not rendered her unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2007 to September 2011. As discussed below, per the July 2020 Joint Motion for Partial Remand (JMPR), an inferred TDIU claim has been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The related claims were previously before the Board of Veterans' Appeals (Board) on appeal from September 2012, May 2016, and September 2016 rating decisions. In February 2019, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In August 2019, the Board denied the Veteran's claims of entitlement to increased ratings for left oophorectomy, total abdominal hysterectomy with bilateral salpingo-oophorectomy, migraine headaches, and major depressive disorder, and for an earlier effective date for the increased rating for major depressive disorder. The Board granted increased ratings for scars and migraine headaches and remanded entitlement to an increased rating for endometriosis. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). While the appeal was pending at the Court, a JMPR was filed by both parties. In July 2020, the Court granted the JMPR to partially vacate the August 2019 Board decision and remand the matter to the Board for development consistent with the terms of the JMPR. In December 2020, the Board remanded, inter alia, the issue of entitlement to a TDIU, consistent with the terms of the JMPR. The Veteran's claim for TDIU was found to be inextricably intertwined with her claims for higher ratings for a total abdominal hysterectomy, scars, status post-hysterectomy and refractory, migraine headaches, and major depressive disorder. In March 2021, the Board decided all of the remaining claims except the TDIU claim, and remanded that issue for further development, to include attempting to obtain a completed TDIU application, VA 21-8940 Form. In a September 2021 rating decision and supplemental statement of the case (SSOC), the RO denied entitlement to a TDIU. 1. Entitlement to a TDIU The Veteran contends that she is unemployable due to her service-connected disabilities. As noted above, in the July 2020 JMPR, an inferred TDIU claim has been reasonable raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to the Veteran's age or the impairment caused by any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, 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). 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). For a schedular TDIU, if there is only one service-connected 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 service-connected 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). The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his service-connected disorders without regard to his advancing age make him incapable of performing the acts required by employment. Id. Consideration may be given to the veteran's education, special training, and previous work experience, but not to the veteran's age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Whether a TDIU is warranted is a legal and not a medical determination and must take into account all of the medical and lay evidence. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"; "neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). The Veteran has 10 service-connected disabilities, including major depressive disorder, rated as 30 percent disabling from October 1, 2011 and 70 percent from June 28, 2015; tension and migraine headaches, rated as noncompensable from October 1, 2011, 50 percent from February 28, 2014 and 50 percent from May 22, 2014; endometriosis/pelvic adhesive disease, rated as 50 percent from October 1, 2011 and 50 percent from February 25, 2015; total abdominal hysterectomy, rated as 100 percent from February 25, 2015 and 50 percent from June 1, 2015; thoracic and lumbar spine strain, rated as 10 percent from October 1, 2011; tinnitus, rated as 10 percent from October 1, 2011; gastroesophageal reflux disease, rated as 10 percent from October 1, 2011; scars, status post-hysterectomy and refractory, rated as 10 percent from October 1, 2011; allergic rhinitis, rated as noncompensable from October 1, 2011; and status post left oophorectomy with scar, rated as noncompensable from October 1, 2011 to February 25, 2015. The Veteran's combined evaluation for compensation was 80 percent from October 1, 2011, 90 percent from February 28, 2014; and 100 percent from February 25, 2015. The Veteran is entitled to special monthly compensation, K-1 under 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350(a) on account of anatomical loss of a creative organ from October 1, 2011. The Veteran met the schedular percentage threshold requirements for consideration of a TDIU as of October 1, 2011 because since that time she had at least one disability rated at least 40 percent, with additional service-connected disabilities that combined to 80 percent. In the September 2011 VA examination report, the examiner stated that since the Veteran developed her mental condition there have been major changes in her daily activities, such as her not wanting to do anything. The Veteran reported that she had been working since 2007 in Automotive Logistics in the Army, that her relationships with her supervisor and coworkers were good, and that while performing that job she had not lost any time from work. The examiner remarked that mentally the Veteran does not have difficulty performing activities of daily living. The examiner stated that the Veteran's current psychiatric impairment was best described as not enough to interfere with social and occupational functioning or to require continuous medication. He stated that she has difficulty establishing and maintaining effective work/school and social relationships because she does not want to go to school or to be around other people. She has occasional interference with recreation or leisurely pursuits because she does not complete tasks. She had constant interference with physical health because of having many gynecological problems, but she had no difficulty understanding commands. In another September 2011 VA examination report, the Veteran described her overall functional impairment related to her headaches as having difficulty performing daily activities due to headache pain. Regarding her back conditions, the Veteran reported overall functional impairment as pain with sitting for long periods of time and frequent bending. The examiner noted the effect of the Veteran's conditions on her daily activity as difficult due to headaches and pain in the mid/low back region with sitting for long periods of time and frequent bending. The Veteran reported that she does not experience functional impairments related to her GERD or allergic rhinitis. In another September 2011 VA examination report, the examiner remarked that the Veteran's tinnitus does not affect her usual occupation or daily activities. VA treatment records include a February 2, 2012 record showing that occupational history revealed that her longest job was with the military and had worked for Sonic. At that time, the Veteran was unemployed but that she graduated from high school, has a paralegal certificate, and was in school at that time. She reported difficulty with concentration. In a September 7, 2012 record, she reported that she found a new job, and that she was taking medication that caused difficulty with her memory. A December 1, 2014 mental health clinic consult report shows that the Veteran reported acceptance into a university for a bachelor's degree in sociology and that if everything goes well, she plans to go to law school. She reported that she had good grades but that she had ongoing issues with focus and concentration, as well as a history of ADD. A June 2015 record shows that the Veteran was unemployed at the time but was in school, majoring in social sciences. In an August 2016 mental disorders VA examination report, the examiner noted that the Veteran has worked in administrative support and inventory control for Global Strategies for six weeks. She reported that she liked that job because it was a small company, and that in the past she has had difficulties in jobs with a large number of co-workers, as she is overwhelmed easily. The Veteran attended school, first at a community college and then a university. However, she noted pervasive difficulties at both schools, poor attendance due to avolition, poor relationships with professors, problems with classmates, and feeling overwhelmed in classes with large numbers of students. She reported having three semesters remaining for her degree but had no current interest in completing it but was possibly willing to entertain the idea of online courses. The examiner remarked that the Veteran was more isolated socially at that time and avoided crowded areas due to her fear of a terrorist attack. She compulsively keeps her doors locked, closes blinds at night, paranoia has worsened, keeps three weapons in her car, and sometimes forgets to take her prescription medication. The Veteran reported that "anything can trigger" her feelings of depression and anger, and that she has feelings of hopelessness and helplessness, particularly about continuing her education. In the August 2016 back conditions disability benefits questionnaire (DBQ), the examiner determined that the Veteran's lumbosacral strain (thoracolumbar spine) impacts her ability to work. The examiner stated that the Veteran has difficulty walking, sitting, and standing for long periods. The August 2016 DBQs show that the Veteran's allergic rhinitis, respiratory condition, or esophageal conditions do not impact her ability to work. In the October 2016 notice of disagreement (NOD), the Veteran stated that her depression affects her daily activities, both work and nonwork-related. She stated that there are some days she could not get out of bed, at least 5 days a month, and that her depression has caused issues with her social life and causes issues in her daily routine. She stated that she had begun to push away friends and family and that she was getting a divorce. During the February 2019 Board hearing, the Veteran testified that she had to miss a lot of work and has had a lot of accommodations, generally due to her migraine headaches. She stated that her employer allowed her to miss 10 to 15 days a month, be late for work, go into a back room and lay down during the workday, turn off the lights in her office, and wear sunglasses at work. In a May 2019 statement, the Veteran stated that she works full-time to support herself and her daughter. However, in the February 2020 DBQ for gynecological conditions, the examiner noted that the Veteran is unemployed. In the February 2020 DBQ, the examiner noted that the Veteran's gynecological condition impacts her ability to work. The examiner stated that the Veteran is currently unemployed and was previously employed as an office manager. The examiner noted that the Veteran lost 0-1 week of work time in the last 12 months. The Veteran reported difficulty performing her duties at work due to her constant issues with endometriosis, including pain and having to miss work. In a July 2020 brief, the Veteran's representative noted that in the May 2014 substantive appeal, the Veteran had reported that she had to stop working due to the effects of her service-connected migraine headaches, and that she had to quit her job because she was requesting too many days off due to her migraines. The Veteran applied for vocational rehabilitation in January 2021. In a February 2021 decision letter, it shows that based on the applicable laws and regulations, further action on her application was discontinued. It explains that the decision was made because she did not respond to the 10-day letter from February 2, 2021. As noted in the previous Board remand, a VA 21-8940 Form is not currently of record. Per the Board's directives, in July 2021 correspondence, the RO requested that the Veteran provide a completed TDIU application as well as her employment and education history; the RO provided a copy of the requested forms. As of the date of this decision, the requested information has not been received by the Board. In the October 2021 appellate brief, the Veteran's representative acknowledged that a July 2021 development letter from the RO requested that the Veteran complete and submit the provided VA Form 21-8940, but that the record does not reflect any response from the Veteran. While the Veteran contends that her service-connected disabilities preclude her from securing and following any substantially gainful employment, the evidence does not support a finding that she is incapable of maintaining all forms of gainful employment consistent with the work history and level of education indicated in the evidence of record. While the evidence discussed above shows that many of the Veteran's mental and physical disabilities do impact her ability to work, it does not show that she is so limited by her service-connected disabilities so as to preclude all forms of employment, including sedentary work in an office setting, such as administrative work, as she has experience working in that capacity. The examiners' descriptions of the impairment caused by her service-connected disabilities are consistent with the currently assigned ratings, and even with all of the symptoms considered together, the overall disability picture does not suggest that she is incapable of working in certain environments. Although no examiner has considered the Veteran's overall functional impairment due to the combined effects of all of her service-connected disabilities, the Board has done so, and finds that even when the combined effects are considered, the preponderance of the evidence is against the claim. There is no doubt that the Veteran's various disabilities may make employment difficult at times, but her service-connected disabilities, as a whole, do not render the Veteran completely incapable of performing the duties necessary to maintain gainful employment. Notably, 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 Veteran's disabilities for which service connection has been established are listed above, and by the assigned schedular rating, she has been compensated for the symptomatology associated with those disabilities. Thus, impairment of industrial capacity due to service-connected disabilities has already been taken into consideration via the disability ratings assigned. While the evidence does indicate that her gynecological, back, headache, and mental conditions cause difficulty with work and limitations with prolonged standing, sitting, and bending, or working with too many people at one time, it does not show that the Veteran is incapable of performing these tasks on a limited basis and with breaks provided. The record shows that her service-connected disabilities have had some effect on her employment, namely her headaches requiring some time off and taking breaks; however, it does not indicate that any single disability or combination of disabilities results in total unemployability. The Veteran's physical conditions, while placing limitations on some physically demanding employment, requiring extended standing, sitting, or bending, do not preclude her from securing or maintaining a substantially gainful occupation consistent with her known work history and education. Many of the listed limitations might necessitate reasonable accommodations for the Veteran but do not completely preclude all types of employment. The record does not show that her service-connected conditions preclude all forms of gainful employment. There is nothing in the record to indicate that the Veteran is incapable of obtaining or maintaining gainful employment in a position that would not require more than minimal physical employment, or which would not accommodate her physical disabilities or her depressive disorder. The Veteran has some college and work experience that she could be qualified for multiple administrative jobs, such as an office manager, assistant, secretary, or a similar type job. Notably, while the Veteran has some difficulty participating in extensive physical labor jobs, her education combined with her work experience makes her a likely candidate for a position that would potentially not require too much physical exertion or interaction with large amounts of people. Additionally, as noted above, there is no indication that reasonable accommodations would not be offered or provided. There is nothing to indicate that the Veteran is incapable of obtaining or maintaining gainful employment in a setting that would allow the Veteran to use her education and work experience, or which would not accommodate her physical or mental disabilities. As noted above, the Veteran's previous employer allowed for multiple accommodations. While the record now shows that the Veteran is not employed; there is nothing to show, and the Veteran has not asserted, that the reason for her current unemployment is due to her service-connected disabilities. As noted above, the Veteran has not submitted a TDIU application or any other evidence to indicate otherwise. In fact, the record shows that the Veteran applied for vocational rehabilitation services, indicating that she maintains a desire to find employment. Based on a review of all of the evidence of record as to the extent of functional loss, the Board finds that the preponderance of evidence shows that the Veteran's service-connected disabilities, without consideration of non-service-connected disabilities, do not render her unable to engage in all forms of substantially gainful employment, consistent with her work experience, training, and education level. The preponderance of the evidence is against this claim for entitlement to TDIU. Therefore, there is no reasonable doubt to be resolved, and the appeal must be denied. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Labi, 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.