Citation Nr: 21007818 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-34 239 DATE: February 10, 2021 ORDER A total rating by reason of individual unemployability due to service-connected disabilities (TDIU) prior to December 14, 2017, is denied. FINDINGS OF FACT 1. Prior to December 14, 2017, service connection was in effect for posttraumatic stress disorder (PTSD), rated 70 percent disabling; migraines, rated 30 percent disabling prior to May 23, 2014, and 50 percent thereafter; pericarditis, rated 30 percent disabling; hemorrhoids, rated 20 percent disabling; lumbar strain, rated 10 percent disabling; patellofemoral pain syndrome, rated 10 percent disabling; residuals of a scar, status post pseudofolliculitis barbae (PFB), rated 10 percent disabling; patellofemoral pain syndrome of the right knee, rated noncompensable, and pulmonary nodules, rated noncompensable; the Veteran’s combined evaluation was 90 percent disabling. 2. The Veteran reported that he had two years of college education and work experience as a letter carrier, laborer, emergency medical technician, administrator and police officer. 3. The Veteran reported that he was gainfully employed in various jobs from 2012 to October 2018. 3. Prior to December 14, 2017, the Veteran’s service-connected disabilities, standing alone, were not shown to be of such severity as to render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Prior to December 14, 2017, the criteria for a TDIU were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 2001 to October 2006 and from April 2007 to March 2011. He also had a period of active duty for training (ACDUTRA) from November 2011 to February 2012. The Veteran’s claim for entitlement to TDIU prior to December 14, 2017, was most recently remanded by the Board in November 2020 to ensure due process. This has been accomplished and the case has been returned for further appellate consideration. Entitlement to TDIU prior to December 14, 2017 The Veteran is currently in receipt of a 100 percent disability rating for his service-connected psychiatric disorders from December 14, 2017. Prior to that date, he seeks entitlement to TDIU. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. 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. Marginal employment may also be held to exist, on a facts found basis (included but 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. 38 C.F.R. § 4.16. Review of the record shows that prior to December 14, 2017, service connection was established for PTSD, rated 70 percent disabling; migraines, rated 30 percent disabling prior to May 23, 2014, and 50 percent thereafter; pericarditis, rated 30 percent disabling; hemorrhoids, rated 20 percent disabling; lumbar strain, rated 10 percent disabling; patellofemoral pain syndrome, rated 10 percent disabling; residuals of a scar, status post PFB, rated 10 percent disabling; patellofemoral pain syndrome of the right knee, rated noncompensable, and pulmonary nodules, rated noncompensable. The Veteran’s combined evaluation was 90 percent disabling. The Veteran has submitted two applications for TDIU. In February 2014, the Veteran reported having two years of college education and work experience as a letter carrier, laborer, emergency medical technician, and police officer. At that time, he stated that he became too disabled to work January 2014. In an August 2020 TDIU application, the Veteran reported that he had additionally worked as an administrator and that he became too disabled to work in October 2018. That application also shows that he maintained employment at various jobs from June 2013 to January 2019. In particular, he reported having worked at these jobs from between 25 to 60 hours per week with a monthly income in excess of the poverty level. He also reported that he had applied to many jobs while in a manic phase and had attempted to take real estate courses and other online training that he never completed. The Veteran is shown to have had significant disability prior to December 14, 2017. This is acknowledged by his awards of service connection for various disabilities and the associated disability ratings assigned. Nevertheless, the Veteran has also reported being able to maintain employment past the date of December 14, 2017, which makes him ineligible for TDIU benefits. In short, the Veteran’s report of gainful employment prior to December 14, 2017, precludes him from eligibility for TDIU. The Board acknowledges that the work may have been difficult for the Veteran, but his disability ratings are intended to compensate for those difficulties in working. TDIU is appropriate only when the disabilities render an individual unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. As the Veteran reported he was able to work during this period in question, the appeal must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.