Citation Nr: 21008011 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-12 186A DATE: February 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran has been gainfully employed during the appeal period. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1975 to August 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript is associated with the claims folder. The appeal was remanded by the Board in July 2020; there has been substantial compliance with the remand directives. Additional evidence was received after the December 2020 supplemental statement of the case, which is duplicative of the evidence previously considered by the AOJ; therefore, the Board may proceed to a decision without prejudice to the Veteran. 38 C.F.R. § 20.1304 (c). After the appeal was recertified and transferred to the Board, the Veteran and his representative were sent a January 2021 letter giving them the opportunity to submit evidence or argument to support the claim. To date, the Board has not received any such evidence and/or argument, or a request for more time to make a submission. Thus, the Board finds that the Veteran and his representative have been afforded an opportunity to provide additional argument. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Entitlement to a TDIU is denied. In the July 2020 remand, the Board took jurisdiction of this issue as part of the Veteran’s claim for higher initial ratings for posttraumatic stress disorder (PTSD. As such, the appeal period before the Board begins on January 4, 2011, the effective date of service connection for PTSD. See April 2012 rating decision. The Veteran asserts that his PTSD precludes substantially gainful employment. See April 2015 VA Form 9. Specifically, the Veteran contends that his irritability and outbursts caused him to lose his employees and display poor performance, and ultimately led to the end of his business. See May 2019 Board hearing; April 2015 VA Form 21-8940. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). In this case, the Veteran is service-connected for: PTSD rated 50 percent disabling from January 4, 2011, and 70 percent disabling from June 26, 2014; diabetes, Type II with erectile dysfunction and nephropathy rated 20 percent disabling from January 4, 2011; and tinnitus rated 10 percent disabling from January 4, 2011. The Veteran is also in receipt of noncompensable evaluations for bilateral hearing loss from January 4, 2011 and hypertension from March 28, 2017. The Veteran is in receipt of a combined evaluation of 60 percent from January 4, 2011; and 80 percent from June 26, 2014. Thus, prior to June 26, 2014, the schedular criteria for a TDIU are not met. Nevertheless, entitlement to a TDIU still may be granted, instead, on an extra-schedular basis under § 4.16(b). This additional subpart of this governing VA regulation indicates “that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” Id.  (emphasis added). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1(2001). The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase “unable to secure and follow a substantially gainful occupation” 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 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. For the following reasons, the Board finds the evidence does not support a TDIU at any time during the appeal period. At the May 2011 VA examination for PTSD, the Veteran reported that he established his own company in 1979 and continued to operate the business at that time. On the Veteran’s VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) submitted in April 2015, he reported that his highest annual income from his construction work was $120,000. The Veteran also reported that he worked until April 2015. Despite this, the Veteran indicated that he had a very busy work schedule in August 2015 VA treatment records. In subsequent August 2015 VA treatment records, he reported working in construction and being very active on his feet. In August 2016 VA treatment records, the Veteran reported working full time for a construction company. During his June 2017 VA PTSD examination, the Veteran reported working as a contractor with smaller jobs, and hiring out work to subcontractors. At the time, he reported nearly working a full time schedule at 32 hours per week. He then also reported working daily doing in home construction and remodeling in May 2018 VA treatment records. In June 2020 VA treatment records, the Veteran indicated that he would use his work computer for a hearing aid follow up and he would have his IT person assist in the set up. At the May 2019hearing before the undersigned, the Veteran indicated that he had closed down a construction business that he owned, three years earlier due to difficulties with his service-connected PTSD. Pursuant to the Board’s July 2020 Remand, the RO requested that the Veteran submit an updated VA 21-8940 and tax returns to address the conflicting evidence as to his employment status as there was conflicting evidence as to his employment status. The RO sent the Veteran an October 2020 and a November 2020 development letter requesting the above referenced information. To date, the Veteran has not responded. Given the evidence of record, the Board finds that the Veteran has been in full-time, or substantially gainful employment throughout the appeal period. There is no indication in the record that such employment is marginal, at the poverty threshold, or in a protected environment. The Board is cognizant that the Veteran had some difficulties due to his service-connected PTSD and hearing loss. In a July 2015 letter, K.B., M.A. LMHC (licensed mental health counselor) and relative of the Veteran offered insight into his observations of the Veteran. See July 2015 Academy of Physical and Social Development letter. In reviewing the letter, the Board observes that it is not apparent that K.B. treated or evaluated the Veteran for PTSD in his capacity as a mental health professional, nor does K.B. assert otherwise. K.B. noted that as a family member he noticed the Veteran was significantly more moody, aloof, unpredictable and was unable to find people to work for him. K.B. also noted that as a mental health counselor, he noticed significant impairment in occupational and social functioning and the Veteran had deteriorated over the years due to largely untreated PTSD. Also, the June 2017 VA PTSD examination report noted difficulty with memory, irritability and outbursts, timely problem-solving, the ability to retain instructions, and communicate effectively. The Veteran’s service-connected hearing loss also resulted in difficulty understanding speech in the presence of noise and his tinnitus was bothersome. See VA examination reports from May 2011 and January 2020. Ultimately, the record reflects that the Veteran has been substantially gainfully employed in a full-time position or nearly full-time position throughout the appeal period, despite any impact of his service-connected disabilities. Thus, the inability to maintain gainful employment has not been demonstrated and entitlement to a TDIU is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, Associate 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.