Citation Nr: 21010448 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 10-19 143 DATE: February 24, 2021 ORDER For the period from April 17, 2008 forward, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT For the period from April 17, 2008 forward, the Veteran was not unable to obtain or maintain substantially gainful employment as a result of the service-connected disabilities. CONCLUSION OF LAW For the period from April 17, 2008 forward, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to April 1988. The Veteran declined a Board of Veterans’ Appeals (Board) hearing on an April 2010 VA Form 9, Appeal to the Board. In July 2017, the Board remanded the issue of TDIU for further development, finding that a claim for TDIU had been raised by the record as part of the claim for an increased rating for the lumbar spine disability. The claim was again remanded in June 2019 for referral to the Director of Compensation and Pension and is now before the Board. TDIU Legal Authority Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral to the Director of Compensation and Pension Service are met under § 4.16(b) criteria. 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. Submission to the Director, Compensation and Pension Service, for consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (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 a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability rating is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned 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 in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The Veterans’ Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board finds that in this case VA met the duties under the VCAA to notify and assist. In this case, neither the Veteran nor the representative has raised specific contentions regarding VCAA duties. TDIU for the Period from April 17, 2008 Forward The Veteran contends generally that he has been unable to maintain any form of substantially gainful employment due to the service-connected disabilities. A September 2017 VA Form 21-9840 shows that the Veteran reported that the service-connected lumbar spine disability and radiculopathy of the lower right extremity prevent him from working, that he last worked in October 2015, and that he became too disabled to work in January 2016. Initially, the Veteran’s service-connected disabilities do not meet the regulatory combined rating percentage requirements of 38 C.F.R. § 4.16(a) for consideration of TDIU. From April 17, 2008 to December 10, 2016, the combined schedular disability rating for all service-connected disabilities is 20 percent for a lumbar spine disability rated as 20 percent disabling. From December 10, 2016 forward, the combined schedular disability rating for all service-connected disabilities is 50 percent which includes a lumbar spine disability rated as 40 percent disabling and radiculopathy of the right lower extremity rated as 10 percent disabling. The issue of TDIU was referred to the Director of Compensation and Pension Service for consideration of a rating under 38 C.F.R.§ 4.16(b). In memorandums dated August and October 2020, the Director of the VA Compensation Service denied a TDIU under 38 C.F.R. § 4.16(b). See Bagwell v. Brown, 9 Vet. App. 337 (1996); VAOPGCPREC 6-96. Because the appeal for a TDIU under 38 C.F.R. § 4.16(b) has already been reviewed and denied by the Director of the Compensation Service, the Board may consider, de novo, whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16(b), which provides 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 Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of Compensation & Pension is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a finding that the Veteran is rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of the service-connected disabilities for the entire period on appeal. The degree of occupational and functional impairment caused by the service-connected disabilities is contemplated by the combined schedular disability rating of 20 percent from April 17, 2008 and in a combined schedular disability rating of 50 percent from December 10, 2016 forward. Regarding the Veteran’s employment history, a February 2009 VA treatment record shows that the Veteran was working as a self-employed entrepreneur in February 2009. A February 2010 VA treatment record shows that the Veteran was performing some construction work and using a saw for extended periods of time. A December 2013 VA examination shows that the Veteran worked as a concert producer for three to four years after discharge from active service, and then worked as a handyman for two years until he was incarcerated from 1995 to 2008. After he was released from incarceration, the Veteran started his own business for two years until 2010 and in 2013 was a full-time student completing requirements for an associate degree with plans to become a counselor. A September 2017 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability shows that the Veteran was also previously employed as a painter and carpenter from July 2012 to October 2015. Regarding the educational history, the Veteran has participated in vocational rehabilitation and reports that he has completed one year of college. See A September 2017 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. May 2018 Vocational Rehabilitation records show that the Veteran completed a welding course and an electrical wiring course in January 2006. An April 2012 statement in a counseling record shows that the Veteran requires guidance and structure but is able to follow through and stay on track to reach a designated vocational goal. In August of 2012, the Veteran drafted a letter expressing his confidence in his ability to work as a construction manager. A December 2016 VA examination shows that the Veteran last worked in October 2015 as a monitoring attendant for a private company. An April 2016 feasibility determination shows that the feasibility of the pursuit of a vocational goal is uncertain due to the Veteran’s medical conditions at the time. A December 2016 VA examination report reflects the VA examiner’s opinion that the service-connected thoracolumbar spine disability prevented the Veteran from being able to climb, perform overhead lifting, or perform overhead work. The VA examiner also wrote that the service-connected thoracolumbar spine disability caused pain with prolonged standing, extended walking, kneeling, and bending, and that the Veteran was no longer able to perform any strenuous labor. The Board has carefully considered a September 2017 statement from the Veteran’s wife that the Veteran is in constant pain, which she believes makes it impossible for him to obtain and retain any type of work. The Board has also carefully considered the assertions of the Veteran’s representatives on the January 2021 and May 2019 informal hearing presentations that a TDIU rating is warranted. While the Board finds that the Veteran experiences some occupational impairment as a result of the service-connected disabilities, this impairment is contemplated by the currently assigned 50 percent combined overall rating and the previously assigned 20 percent overall rating, which recognizes the specific functional limitations of each disability. The Board finds that the impairment from the service-connected disabilities does not preclude the Veteran from securing or maintaining a substantially gainful occupation. While both the Veteran’s wife and representative are competent to report that the Veteran reports experiencing pain and impairment due to service-connected disabilities, they are not competent to assess whether the service-connected disabilities preclude the Veteran from securing or maintaining a substantially gainful occupation. Having reviewed and carefully considered all of the evidence of record, both lay and medical, the Board finds that the criteria for a TDIU have not been met for any period on appeal. The evidence reflects that the Veteran was not precluded from securing or maintaining substantially gainful employment by reason of the service-connected disabilities. Rather, multiple evaluations during the period on appeal, including an April 2012 statement in a counseling record for vocational rehabilitation and the Veteran’s own assertion in an August 2012 letter, show that the Veteran was capable of securing and maintaining employment despite experiencing limitation in function due to a lumbar spine disability and radiculopathy of the lower right extremity. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for a TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.