Citation Nr: 21007682 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 171000-00 DATE: February 10, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 2003 to September 2007. In July 2020, the Board granted service connection for a left ankle disability; a right ankle disability; migraine headaches; and, gastroesophageal reflux disease (GERD). To date, the Agency of Original Jurisdiction has not implemented the Board’s grant of service connection and has not assigned ratings to these service-connected disabilities. The Board remanded an inferred claim of entitlement to a TDIU and an increased rating for residuals of cholecystectomy. In an October 2020 rating decision, a 30 percent rating was assigned to residuals of cholecystectomy, effective November 20, 2012, which constitutes the maximum assignable rating; thus, this constituted a full grant of the benefit sought on appeal. Entitlement to a TDIU Total disability ratings for compensation 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. 38 C.F.R. §§ 3.340, 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, 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. § 4.16(a). The Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, the Veteran’s non-service-connected disabilities and her advancing age are not for consideration. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board’s task is to determine whether there are circumstances apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this Veteran in a different position than other veterans. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). 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). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Service connection is in effect for PTSD (50% 11/20/2012; 70% 05/11/2020); residuals of cholecystectomy (30% 11/20/2012); left knee strain, status post arthroscopic knee surgery (10% 11/20/2012); right knee strain (10% 11/20/2012); tinnitus (10% 11/20/2012); female sexual arousal disorder (FSAD) (0% 11/20/2012); residuals, abdominal scars, post cholecystectomy (0% 11/20/2012); right ankle disability (rating TBD); left ankle disability (rating TBD); migraine headaches (rating TBD); and, GERD (rating TBD). From November 20, 2012, the Veteran’s combined rating is 80% (without consideration of the ratings for her ankles, headaches, and GERD) and from May 11, 2020, her combined rating is 90% (without consideration of the ratings for her ankles, headaches, and GERD). Thus, her service-connected disabilities meet the minimum scheduler criteria for a TDIU. 38 C.F.R. § 4.16(a). In August 2020, the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. She reported that her disabilities affected her full-time employment in June 2007, but at the same time she indicated that she was working full-time. In her words, she “started to become too disabled to work” in August 2012. She earned a Bachelor of Arts in June 2015. She attempted to obtain her Masters degree beginning in August 2015, with the assistance of VA Vocational Rehabilitation and Education (VR&E), but left in June 2017. She sought VR&E benefits in July 2015 and was declared job ready on June 13, 2018. 09/27/2018 VR&E-General. From June 25, 2018 to March 30, 2019, she worked at a congressional office; from April 1, 2019 to December 5, 2019 she worked at a public relations company; and, from April 9, 2020 to the present she works at a university as a VA Certifying Official. On a resume associated with her VR&E records, she reported a professional history as an event production intern from September to December 2012; documentary film production intern/web designer from September 2012 to June 2013; assistant staff editor for an academic journal from January to October 2013; outreach and education coordinator from April 2013 to April 2014; marketing/graphic design intern from September 2013 to April 2014; outreach and communications assistant from April 2014 to June 2015; public relations account associate with a television news company from August 2015 to January 2017; and, a public relations account associate from June to August 2016. 04/26/2016 Resume. At the March 2020 Board hearing, the Veteran reported that she was unemployed, and that her residuals of cholecystectomy has an effect on her ability to go to school and to be employed in positions where she could not have access to restroom facilities. An August 2020 C&P mental health examination reflects that the Veteran has had 3 different jobs in the last 18 months. She worked for a Congresswoman but found the work stressful and reported difficulty with her memory and sustaining her focus. She was fired due to poor attendance as a result of her anxiety and migraines. She held this job for 9 months from June 2018 to March 2019. Her next job was for 9 months from April to December 2019 at an advertising agency. She was not given any leave time and would take time off and again was fired for poor attendance. She believed that she lost both jobs due to untreated mental health issues. She has had difficulty maintaining steady therapy. She reported working at a university for 3 months in the financial aid department. The Veteran also reported that she was in graduate school for many years but had to leave her MS degree. She switched from full-time enrollment to half-time but eventually had to quit due to stress and her symptoms of anxiety and depression. She felt that her progress was stopped in school because she was not getting the (mental health) help she needed. On mental health examination, the examiner checked the boxes indicating that she has difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner found that she has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. An October 2020 C&P examiner commented that due to symptoms of her cholecystectomy, incontinence of stool and severe abdominal pain, she has incurred a loss of employment and an inability to attend social gatherings. The question is whether for any period contemplated by this appeal, the Veteran’s service-connected disabilities preclude her from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” 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 and without regard to the veteran’s earned annual income. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran’s disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring). After careful review of the record, the Board does not find that a TDIU is warranted for any period contemplated by this appeal. During the appeal period, the Veteran obtained a bachelor’s degree in June 2015, and enrolled in a graduate program, even though she was unable to complete the program as of June 2017. During such time, the Veteran reported multiple internships and employment associated with her field of interest. VR&E concluded that she was job ready as of June 13, 2018, and she became employed in a full-time capacity as of June 25, 2018. While acknowledging that the Veteran held 3 different jobs over an 18-month period and had a short period of unemployment from December 6, 2019 to April 8, 2020, the fact remains that she has otherwise maintained full-time employment and is currently employed in a full-time capacity. While the Veteran may meet the TDIU schedular percentage criteria, awarding a TDIU would not service its intended purpose as the Veteran has been able to maintain gainful full-time employment for several years, despite the severity of her service-connected disabilities. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring). While acknowledging the functional limitations associated with her psychiatric disability, residuals of cholecystectomy, and other service-connected disabilities, in an occupational setting, the overall medical and lay evidence of record does not reflect that the Veteran was precluded from gainful employment for which she was qualified due solely to her service-connected disabilities. Thus, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.