Citation Nr: 21077192 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 11-14 403 DATE: December 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The preponderance of evidence is against finding that the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Marine Corps Reserve from December 1990 to May 1991, and served on active duty in the Southwest Asia theater of operations during the Gulf War from January 1991 to April 1991. The Board of Veterans' Appeals (Board) most recently remanded the issue above in August 2021 to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the phrase unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. Here, the Veteran has been awarded service connection for PTSD, rated as 30 percent disabling from May 6, 2004, 70 percent disabling from November 10, 2008; and 100 percent from February 19, 2020, service connection for emphysema, rated as noncompensable from November 30, 2009, 30 percent disabling from June 20, 2006, and 60 percent from February 19, 2020, as well as service connection for erectile dysfunction and allergic rhinitis, both with a noncompensable rating from February 19, 2020 and August 5, 2021, respectively. Further, the Veteran was awarded SMC(s)(1) based on statutory housebound criteria for PTSD rated as 100 percent disabling and service-connected emphysema disabilities independently ratable at 60 percent or more from February 19, 2020. Thus, the Veteran's combined disability rating meets the threshold schedular criteria for eligibility for a TDIU during the pendency of this appeal. The Board notes that the claim for TDIU from February 19, 2020 is moot as the Veteran was in receipt of a total (100 percent) schedular rating and was awarded SMC(s)(1) based on statutory housebound criteria. 38 C.F.R. § 4.16 (a). Thus, the VA met its duty in maximizing a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The question for the Board is whether the Veteran is entitled to a total rating based on individual unemployability prior to February 19, 2020. On his February 2020 application for increased compensation based on unemployability, the Veteran reported that his PTSD and emphysema prevented him from securing substantially gainful employment from October 3, 2019, the date he last worked full-time. He reported working full-time from May 1988 to October 2019 as a supervisor for a shipping company. He completed high school. He reported not being able to maintain gainful employment due to his service-connected disabilities. During his December 2015 Board hearing, the Veteran stated that he had worked as a shipper for 26 years at the same company. He reported about five disciplinary actions a year for problems with authority and work performance. He believed that his work deficiencies were related to his service-connected PTSD. During his November 2019 Board hearing, the Veteran reported that he was on short-term medical leave since October 4, 2019 due to his service-connected PTSD and emphysema disabilities, but noted that it was primarily due to his PTSD symptomatology. His PTSD symptoms worsened as he was throwing supplies in the office and smashing his computer when he felt overwhelmed. Also, he noticed that he was experiencing more shortness of breath than earlier. He had difficulty carrying objects, walking up stairs, and bending over. While on short-term medical leave, the Veteran read books, grocery shopped, and worked around the house. He did not like to socialize with others and avoided crowds. An October 2019 VA psychology note indicated that the Veteran felt tension at work between him and a superior was getting to a point where he would act in a way that resulted in termination. During a November 2019 VA mental health note, the Veteran reported that he had difficulty with morning orientation meetings at work as he was overwhelmed with distressing thoughts. He reported difficulty concentrating at work and would become angry. During a January 2020 VA mental health appointment, the Veteran stated that he was not ready to return to work as he had panic attacks roughly every two days. During an April 2020 appointment, the Veteran noted that he returned to work at a different location. He reported being grateful for his job, but noted that there were difficulties as he was "trying to lay low." Later in April 2020, the Veteran noted that he was working from 11:15 pm to 1:30 am. He reported edginess and feelings of constriction. He was planning on retiring in February 2021. An April 24, 2020 VA mental health note indicated that the Veteran returned to work and that being busy from the increased online ordering had been helpful to the Veteran. His supervisors were leaving him alone, perhaps because there was so much work. He was able to focus on his work daily. An April 2020 VA examination for PTSD noted that the Veteran returned to work 2 weeks prior. In May 2020, a VA psychologist noted that the time the Veteran had off from work was beneficial as he made a persistent therapeutic effort. The Veteran reported that he was glad to return to return to work, especially since others did not have the ability to work during the pandemic. He was able to stay focused on work and looked forward to it. In June 2020, the Veteran indicated that he wished to retire soon, but was discussing this with his psychiatrist. In August 2021, the Board remanded the TDIU claim for further clarification from the Veteran regarding his employment history to include the dates of, and reasons for, the Veteran's leave from work and to determine whether he is, in fact, currently gainfully employed as this was unclear from the record. In September 2021, the AOJ provided the Veteran with notice regarding how to substantiate his TDIU claim and requested that he complete and return a VA Form 21-8940 (Increased Rating Based on Unemployability). This form requests information regarding the Veteran's occupational and educational history, which is necessary to determine entitlement to TDIU. During a November 2021 VA examination for PTSD, the Veteran stated that he continued to work as a supervisor for a shipping company. Although he reported difficulty getting to work due to oversleeping and panic attacks, his wife was able to drive him to work as a result. He reported occasional aggressive behaviors at work and was reprimanded for not finishing his work. He reported that he was asked to leave his job. He has been on paid leave for two weeks and planned to resign at the end of December 2021. Also, during a November 2021 VA examination for respiratory conditions, a VA examiner found that the Veteran's respiratory condition did not impact his ability to work. The Veteran reported a chronic cough, productive of mucus and ongoing dyspnea with exertion. He denied emergency room visits or hospitalizations over the past year. The Board notes that the Veteran did not return the VA Form 21-8940 to VA and did not respond in any way. Without a completed VA Form 21-8940, which would identify the Veteran's last employment, the RO was not able to request a VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, from the Veteran's last employer. Simply put, the Veteran's employment history could not be verified. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C. § 5107 (a). While the VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). In this case, the Veteran has not participated in any development of the raised claim. Significantly, the RO's communication in September 2021 to the Veteran in this regard specifically requested that he submit a completed VA Form 21-8940 if he believed he qualified, and he did not submit such. Furthermore, during the appeal period, the Veteran has stated that his service-connected disabilities make it difficult for him to work and that he is only working until he can retire and receive a full pension. TDIU benefits are only warranted, however, if the claimant is prevented from working due to service-connected disabilities, and are not applicable if the Veteran can still work, even if it is difficult to do so. To the extent the service-connected disabilities affect the Veteran's earning capacity, the assigned schedular ratings for the disabilities compensate the Veteran for such impairment. The Board also finds that the Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. The Veteran is presently employed full-time per his November 2021 statements. There is no indication that his income is below the poverty threshold for one person established by the U.S. Department of Commerce, Bureau of the Census. See https://www.census.gov/hhes/www/poverty/data/threshold/. In addition, the Veteran's employment is not in a protected environment as he works in management for a nationwide parcel service. Thus, his employment is not considered marginal employment. See 38 C.F.R. § 4.16 (a). (Continued on the next page) The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. There is no evidence that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The preponderance is against the raised claim of entitlement to a TDIU; and, the claim must be denied. S. L. KENNEDY Veterans Law Judge Board of Veterans' Appeals L. HOWELL Veterans Law Judge Board of Veterans' Appeals C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.