Citation Nr: 21005321 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-26 135 DATE: February 1, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran is not shown to be unable to obtain or maintain gainful employment due to service-connected disabilities. CONCLUSION OF LAW The criteria for the award of a TDIU are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a), (b), 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1985 to June 1998. The Board previously remanded this matter for additional development in August 2020. 1. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) In a written brief dated in December 2020, the Veteran’s representative stated that an August 2019 VA examination showed that the Veteran could not maintain gainful employment due to his thoracolumbar spine (back). A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of TDIU, disabilities of common etiology or affecting a single body system will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Court of Appeals for Veterans Claims (Court) recently held that if the Board basis its denial of TDIU in part on the conclusion that a veteran is capable of performing sedentary work, then it must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139, 150-51 (2018). The Veteran’s service-connected disabilities include lumbar spine intervertebral disc syndrome (10 percent from October 15, 2010 and 40 percent from July 12, 2018); cervical spine degenerative disc disease (10 percent from October 15, 2010 and 30 percent from July 12, 2018); right shoulder bursitis and tendinitis (20 percent from October 15, 2010); left shoulder impingement syndrome (20 percent from October 15, 2010); left upper extremity radiculopathy (20 percent from August 19, 2019); left ankle sprain (10 percent from October 15, 2010); right ankle sprain (10 percent from October 15, 2010); paresthesia and sciatica of the left thigh (10 percent from October 15, 2010); multiple nevi (10 percent from September 27, 2012); and epidermoid cyst (0 percent from September 27, 2012). The percentage requirements of § 4.16(a) are met from October 15, 2010. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to grant a TDIU. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran can perform 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 the August 2020 remand, the Board found that the issue of entitlement to TDIU was raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, the Board found that VA examinations dated in August 2019 showed that the Veteran’s cervical and lumber spine disabilities interfered with his ability to work. The case was remanded to obtain employment information. In September 2020, the Veteran was provided a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to complete, but he did not return the form. During the appeal period, the Veteran has at times reported that he was unemployed. A VA treatment record dated in October 2012 indicated that the Veteran was unemployed. A July 2018 evaluation from a private physical therapist noted that the Veteran had an associate’s degree in finance. He was unemployed and was previously self-employed as the owner of a firearms business for 8 years. Prior to that, the Veteran was noted as working 6 years as a technician for a cable company and working 8 months for Walmart. Medical records show that there is functional impairment due to his service-connected disabilities. A March 2014 VA examination for peripheral neuropathy showed that the functional impacts of peripheral neuropathy included being unable to stand or walk for more than five minutes. The examiner opined that the Veteran would not be able to perform any physical employment. A February 2018 VA examination for both ankles noted that the occupational impacts included being unable to stand more than 10 minutes, unable to walk over 100 feet, and difficulty performing strenuous labor. A report of an August 2019 VA examination of the cervical spine reflects that the Veteran reported that he did not work and could not do anything physical. An August 2019 VA examination of the shoulders noted that the functional impact of shoulder condition is that the ability to lift to or above shoulder level is decreased and his ability to carry heavy objects is impaired. An August 2019 VA examination of the lumbar spine indicated that the functional impacts of his disability included decreased ability to lift from below waist level and work overhead and impaired ability to carry moderately heavy objects. The record does not contain sufficient evidence to support a finding that the Veteran’s service-connected disabilities preclude substantially gainful employment. Although the record does contain lay and medical evidence indicating that his cervical spine, lumbar spine, and shoulder disabilities prevent him from performing physical tasks, the pertinent inquiry involves a determination as to whether the Veteran is incapable of performing the physical and mental acts required by employment, considering his occupational, educational, and training history. See Van Hoose, 4 Vet. App. at 363. 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) to have 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. The Board finds that the criteria for entitlement to TDIU are not currently met. While there is evidence indicating that the Veteran’s service-connected disabilities render him unable to perform work that requires standing for long periods or strenuous tasks, that evidence, alone, is not sufficient to establish that the Veteran is unemployable due to service-connected disabilities. Given the available evidence of the Veteran’s work experience and educational background in finance, the Board finds that the Veteran’s service-connected disabilities would not preclude him from being able to work in a position such as an office setting that did not involve standing or walking for long periods or labor-intensive tasks. Based on the evidence of record, the claim for TDIU is denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.