Citation Nr: 21075502 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-37 686 DATE: December 20, 2021 ORDER A total disability rating based on individual unemployability due to a single service-connected disability (TDIU), on an extraschedular basis, is denied. FINDING OF FACT The Veteran's service-connected disability did not preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to December 1969. The Veteran died in December 2018. The appellant, the Veteran's surviving spouse, has been accepted as a valid substitute for her husband's pending claim. See April 2020VA Memorandum. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2014 by a Department of Veterans Affairs (VA) Regional Office. The appeal was remanded in May 2020 and May 2021 for additional development. Entitlement to a TDIU. The appellant contends that the Veteran was unable to maintain substantially gainful employment due to his service-connected posttraumatic stress disorder (PTSD) with opioid use disorder. In this regard, she reported that the Veteran would go missing for weeks or months, was in and out of rehab ever since he got out of Vietnam and was in and out of jail. Consequently, the Veteran was unable to work due to his service-connected PTSD with opioid use disorder. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and 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. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay and profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility that when the same claimant worked before." In other words, "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration Regulations). Marginal employment 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. 38 C.F.R. § 4.16(a). 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In this regard, the Court has indicated that factors to consider in determining whether a protected work environment exists may include the "magnitude of the veteran's job responsibilities and the degree of accommodation necessary for successful, full-time work." Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant 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. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities". Moreover, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include 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 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. As an initial matter, the Board finds that the appeal period for the Veteran's claim for a TDIU stems from January 17, 2014, the date he filed a claim for an increased rating for his service-connected PTSD. See Rice, supra. For the entire appeal period, the Veteran was service-connected for PTSD, rated as 50 percent disabling. Therefore, his combined disability rating was 50 percent. He did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). In cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability that do not meet the criteria under 38 C.F.R. § 4.16(a), a veteran's TDIU claim may be referred to the Director of Compensation under 38 C.F.R. § 4.16(b). Given that the Veteran's disability rating fails to meet the threshold for consideration of a TDIU on a schedular basis, but the evidence suggested he was unable to maintain gainful employment as a result of his solely service-connected PTSD, and associated opioid use disorder, the Board remanded the claim in May 2021 for referral to the Director for consideration for a TDIU on an extraschedular basis. In a September 2021 decision, the Director denied an extraschedular TDIU. However, the Board must conduct its own de novo review of the issue. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015); Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). In regard to the Veteran's education and work history, in a November 2020 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the appellant indicated that the Veteran last worked full time in 1980 as a mechanic for General Electric. While the appellant reported that the Veteran completed four years of college, prior VA examinations indicate that the Veteran earned his GED but did not complete any additional education (See July 2016 VA examination report). The evidence shows that the Veteran was unemployed during the appeal period. Specifically, at an August 2003 VA examination, the Veteran described a sporadic work history, but that he had not worked since 2001. Prior to 2001, he had a part-time job for a few months, and he worked at General Electric for about 6 years, until 1985. For the following reasons, although the Veteran was unemployed throughout the appeal period, the Board finds that the Veteran's service-connected PTSD symptoms did not prevent him from securing and following substantially gainful employment consistent with his education and occupational experience. To this extent, the evidence shows that although the Veteran had some social and occupational impairment due to his PTSD, his PTSD symptoms did not prevent him from securing and following substantially gainful employment consistent with his education and occupational experience. To this extent, the evidence reveals that while the Veteran's PTSD caused difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, he was able to maintain relationship with others (including his wife), attended social gatherings, was cooperatives with others, and participated in activities outside the home. See VA treatment report (December 2013); VA examination report (July 2016). For example, during VA treatment visits, the Veteran reported that he attended NA meeting three times per week, attended church, and attended bible study. See, e.g., VA treatment record (December 2016). Additionally, he indicated that he kept "himself busy with household chores and" working in the yard. During VA treatment visits, the treating physicians indicated that the Veteran cooperated and that he was goal directed and focused. See, e.g., VA treatment record (January 2014). Notably, during a July 2016 VA examination, the Veteran reported that he last worked for General Electric about 30 years ago and he quit the job because he was burnt out. In sum, although the Veteran's PTSD may have caused some occupational impairment, his PTSD symptoms, alone, would not have prevented him from securing and following substantially gainful employment consistent with his education and work history. To this end, the Veteran was previously employed at a General Electric, which would have likely involved physical/manual labor and interacting with others. The evidence suggest that the Veteran would had been able to perform employment, consistent with his education and work experience, as the evidence shows that the Veteran was able to maintain relationships with others, that he attended social gatherings, and that he was involved in events outside the home. Additionally, he was able to perform physical activities outside the home, such as yard work. Moreover, at the July 2016 VA examination, the Veteran reported that he stopped working because he was burnt out and did not indicate that such was related to his symptoms of PTSD with opioid use disorder. For the foregoing reasons, the Veteran's service-connected PTSD did not prevent him from securing and following substantially gainful employment consistent with his education and occupational experience. The benefit-of-the-doubt doctrine is therefore not for application and a TDIU is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.