Citation Nr: 21007722 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-20 085 DATE: February 10, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, is denied. FINDING OF FACT The most credible, competent, and probative evidence of record demonstrates that the Veteran's service-connected disabilities alone are not of such nature and severity as to have prevented him from securing or following any substantially gainful employment, because he had earnings consistent with substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1967 to June 1971. This matter is on appeal from a September 2009 rating decision. This matter was remanded in January 2015 and May 2018 for further development. It is now ready for adjudication. In June 2014, the Veteran testified at a video conference with the undersigned Veterans Law Judge. A transcript of the hearing is of record. TDIU The Veteran contends that his service-connected disabilities prevent him from securing or following any substantially gainful occupation. Specifically, he contends that he is unemployable due to his lumbar and cervical spine disabilities. See, April 2020 VA Form 21-8940. He stated that he became too disabled to work in January 1991. The most he earned in one year, 2016, was $128,000 from rental income and contract labor combined. Regarding his employment history from 1991 to the present he was a law enforcement consultant and from 1971 to the present he has run a rental property business, working varied hours per week with monthly varied earnings. He listed his current monthly income as $8,800 as a contract employee, but noted that his income was variable. The Veteran stated that he had ongoing pain with prolonged walking or sitting due to his service-connected disabilities. VA regulations allow for the assignment of a total disability rating based on individual unemployability when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). Marginal employment shall not be considered substantially gainful employment. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment is not considered substantially gainful employment and is 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. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). Whether a veteran is capable of more than marginal employment must be considered even if the veteran is not working. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016) (concluding that the terms “substantially gainful occupation” and “substantially gainful employment” in § 4.16 are “synonymous”). The Veteran is service-connected for radiculopathy of the right arm, rated 40% disabling; neuropathy of the left arm, rated 30% disabling; a neck disability, rated 30% disabling; a back disability, rated 20% disabling; radiculopathy of the right leg, rated 20% disabling; radiculopathy of the sciatic nerve and femoral nerve of the left leg, each rated 20% disabling; and a scar of the left arm, rated 10% disabling. The combined rating is 90%. Accordingly, the Veteran meets the minimum schedular requirements for TDIU. See 38 C.F.R. § 4.16 (a). Turning to the evidence of record, on December 2008 VA peripheral nerves examination, the Veteran’s reported occupation was listed as self-employed and pressure washing. Physical labor was limited due to numbness in his hands which affected his strength and safety. He was unable to write very well. He had to hire employees for his pressure washing business, was unable to drive, and avoided overhead work/raising his arms overhead. On August 2009 VA spine examination a functional assessment revealed that he had to hire help to maintain his rental homes and functioned in a supervisory capacity, especially when taking narcotics for neck and bilateral arm pain. On January 2012 VA neck conditions Disability Benefits Questionnaire (DBQ) examination the examiner opined that the Veteran’s neck disability did not impact his ability to work. On December 2015 VA peripheral nerves, back, and neck conditions DBQ examinations the examiner opined that the Veteran’s peripheral nerve, back, and neck disabilities did not impact his ability to work. On July 2017 VA back conditions DBQ examination the examiner opined that the Veteran’s back disability impacted his ability to work due to difficulty with prolonged standing, walking, bending down, and heavy lifting. In an August 2017 VA medical opinion another examiner opined that the Veteran would have difficulty with overhead reaching due to his neck disability and difficulty with hand control and feeling and handling paper due to his neuropathy. Pursuant to the Board’s May 2018 remand, on December 2018 VA neck conditions DBQ examination, the examiner opined that the neck disability impacted his ability to work. The functional impact of the neck disability included no twisting of the cervical spine, no bending or squatting to lift, no strenuous physical activity, no lifting or working overhead, and no sitting or standing for a prolonged period without an opportunity to change position. Due to weakness in his hands, he had poor gripping ability and could not work with a hammer or a screwdriver. On December 2018 VA back conditions DBQ examination, the examiner opined that the back disability impacted his ability to work. The functional impact was that there was no twisting of the back, no bending or stooping or squatting to lift or to position to work, no strenuous physical activity, no lifting overhead, and no sitting or standing for a prolonged period without opportunity to change position. In December 2018, the VA examiner opined that it is at least as likely as not that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation (verus just marginal employment). The rationale was that he had constant chronic low back pain with immobility which caused limitations including no twisting his back; no bending, stooping, or squatting; no strenuous physical activity; no overhead lifting; and no sitting or standing for a prolonged period without opportunity to change position. The examiner further opined that the Veteran’s limitations precluded him from participating in any manual labor or prolonged sitting or standing. He also had to be allowed to change positions at a moment’s notice to relieve some of the back discomfort. Clerical work was difficult, because he was unable to sit for prolonged periods due to back pain and had to be able to get up and move around often. The examiner further opined that the markedly limited cervical and lumbar spine mobility impaired any positional changes that might be needed for work. However, on January 2019 VA peripheral nerves DBQ examination, the examiner opined that the functional impact of the Veteran’s radiculopathy of the left upper extremity and lower caused him hire people to perform maintenance at his rental properties. However, he did consulting work teaching community policing up to 20 hours per month. He was self-employed as a landlord, collected rent, and ensured that the property was maintained working 8 to 10 hours per week. He retired as a police chief in 1991. In a January 2019 VA medical opinion, the examiner opined that it is at least as likely as not that the Veteran is able to secure or follow substantially gainful employment. She stated that during the examination the Veteran indicated that he was able to do consulting work for the police department and dictated reports. He also performed administrative work collecting money for his rental property. On these bases, the opined that it is at least as likely as not that the Veteran is able to secure or follow a substantially gainful occupation. After a careful review of the lay and medical evidence record, the Board finds that the preponderance of the evidence is against the award of a TDIU rating. While the Board does not disagree that his service-connected disabilities impact his ability to work to some degree, the Board finds that the preponderance of the evidence is against a finding that the service-connected disabilities prevent him from securing or following a substantially gainful occupation. Importantly, the Veteran continued to manage his rental property business and works part-time as a consultant. In this case, the Board finds that the Veteran has engaged in substantially gainful employment. In his VA Form 21-8940, the Veteran neglected to provide the amount of highest gross earnings from 1991, when he said he became unemployable. However, since 2011 he has indicated a total earned income of $128,000 for the past 12 months and an additional $8800 as a contract employee which he said varies. The Veteran, who was born in 1948, turned 65 in 2013 and is married. The poverty threshold for a two-person household under the age of 65 with no related children was $15,063 in 2011 and $15,374 in 2012. The poverty threshold for a two-person household over the age of 65 with no related children was $14,081 in 2013, $14,309 in 2014, $14,326 in 2015, $14,507 in 2016, $14,816 in 2017, $15,178 in 2018, $15,453 in 2019, and $15,644 in 2020. See U.S. Census Bureau; available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. As such, the Veteran’s earned income has exceeded the poverty level throughout the appeal period based on the information he provided. Based on the income information provided by the Veteran, the Veteran’s employment exceeded the poverty level throughout the appeal period. Therefore, based on his income, the Board cannot find that the Veteran engaged in marginal employment in that sense during the appeal period. As noted above, a veteran’s employment may be considered marginal on a facts-found basis even when income exceeds the poverty threshold in situations such as employment in a protected environment such as a family business or sheltered workshop. See also Faust, 13 Vet. App. at 356 (working in substantially gainful employment does not require that a veteran work full-time (i.e., a 40-hour work week)). The Board finds that none of the Veteran’s employment is in a protected environment. There is no indication that he has been provided any special treatment or accommodations as a result of his service-connected disabilities. The evidence of record does not reflect that his past or present positions are similar to a family business or a sheltered workshop. As such, the Board finds that the Veteran’s employment has not been in a protected environment. The Board acknowledges that the Veteran has asserted that he has had to hire helpers to work on his rental properties due to limitations from his service-connected disabilities. While the medical documents verify that the Veteran has these occupational difficulties and the Board sympathizes with the Veteran he performs work which provides him income, even if he himself is not doing the physical work or if he has to pay others to help him for work that he did prior to his disabilities. Even if the Veteran is not able to physically maintain his rental properties, he is able to perform clerical work which generates income, is still gainfully employed, and has shown that he is very capable of running a successful rental property business. He also continues to work as a consultant for a police department. Therefore, given the Veteran’s earnings running a rental property business and employment as a consultant, the Board finds that the preponderance of the evidence is against a finding that the Veteran is precluded from securing or following substantial gainful employment. Thus, the Veteran is not entitled to a TDIU. The Board has considered the December 2018 VA examiner’s opinion that it is at least as likely as not that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation (verus just marginal employment). However, the examiner was unable to consider the Veteran’s VA Form 21-8940 submitted in April 2020 which indicates that the Veteran was in fact capable of maintaining gainful employment running a rental business and working as a contractor. This lessens the probative value of the opinion that he is unable to secure or follow a substantially gainful occupation. The Board has also considered the January 2021 Brief in which the Veteran’s representative questioned why the medical evidence fails to show that his service-connected disabilities render him unemployable. As previously stated, although the Veteran’s service-connected disabilities impact his ability to work to some degree, the fact remains that despite difficulties imposed by these disabilities he has maintained gainful employment as the owner and manager of a successful rental property business and as a consultant for the police department. The Veteran’s representative also requested the Board remand the claim for a “thorough examination.” However, here, for the reasons previously discussed, the Board finds that the 2008, 2009, 2012, 2015, 2017, 2018, and 2019 VA examination and opinions, in aggregate, are adequate for adjudication purposes and provides highly probative and overwhelming evidence against this claim. Accordingly, a third remand of this claim for another VA examination would serve no useful or meaningful purpose and only instead result in unnecessarily imposing additional burdens on VA with no potential benefit flowing to the appellant. See e.g., Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In considering whether TDIU is warranted, the Board has also considered the Veteran’s statements that his service-connected disabilities make him unemployable. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The Veteran is competent to report symptoms because that requires only personal knowledge as it comes to her through her senses. Layno, supra. However, he is not competent to identify to the extent to which service-connected disabilities make him unemployable according to the pertinent VA regulations. Those determinations require training, which the Veteran is not shown to have. (Continued on the next page)   Overall, the evidence does not establish that the Veteran is unemployable due to his service-connected disabilities, but rather remains gainfully employed. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.