Citation Nr: 21010867 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 11-10 285 DATE: February 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran is not prohibited from following a substantially gainful occupation as a result of a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Marine Corps from August 2003 to August 2007. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2007 and January 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2015 and a transcript of the proceeding is of record. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103 (c)(2) (2019); Bryant v. Shinseki, 23 Vet. App. 488 (2010). This matter was remanded several times, most recently in July 2020, and has been returned for further appellate review 1. Entitlement to a TDIU is denied. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall 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). For the purpose of one 40 percent disability in combination, disabilities affecting a single body system, such as the orthopedic system, may be considered as one disability. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. For the period on appeal, service connection has been in effect for the following disabilities: posttraumatic stress disorder, a right shoulder disorder, tinnitus, a back disorder, a left and right ankle disorder, a left and right knee disorder, bilateral hearing loss, a benign nevi on the lower lip, and scars of the left ankle and right shoulder. For the period from June 26, 2009 until September 1, 2009, the Veteran was in receipt of a temporary total rating due to right shoulder surgery requiring convalescent care, and was in receipt of special monthly compensation (SMC) for additional service-connected disabilities that combined to at least 60 percent. For the period from June 26, 2009 to September 1, 2009 entitlement to a TDIU is moot because the Veteran was already being paid at the 100 percent rate and was in receipt of SMC. Prior to June 26, 2009 and on and after September 1, 2009; the Veteran met the schedular requirements for a TDIU because the combined evaluation of the disabilities affecting the orthopedic system was at least 40 percent and the combined disability rating was at least 70 percent. The remaining question before the Board is whether the Veteran’s disabilities preclude gainful employment. Here, the preponderance of the evidence fails to demonstrate the Veteran is unemployable during the appeal period due to service-connected disability. An October 2007 VA treatment note documents the Veteran was a college student and helped with his father’s and cousin’s businesses, but he was otherwise unemployed. A December 2007 VA treatment record reports the Veteran was a student and not otherwise employed. A September 2008 VA examination report documents the Veteran was not actively seeking employment due to impending right shoulder surgery. In his April 2009 notice of disagreement, the Veteran wrote he had been unable to attend a recent VA examination because of his school and work schedule. April 2009 VA treatment records document the Veteran was a full-time student and employed part-time at a restaurant. A May 2009 VA examination report also documents the Veteran was a full-time student and majoring in marketing. The Veteran’s usual occupation was described as part-time jobs in home repair and customer service. An August 2012 VA Vocational Rehabilitation and Education report notes the Veteran completed his college degree in business and management and was employed with a marketing company since June 2012. The Veteran reported he enjoyed his job and his service-connected disabilities did not interfere with his work. May to July 2013 VA treatment notes document the Veteran worked full-time in consumer lending as an asset manager until November 2012 when he left his job to help his significant other with a substance abuse issue. He started a new job in May 2013. At the August 2015 Board hearing, the Veteran testified that he was working as a branch manager for his finance company and had to take off time from work due to his shoulder problems. He said he missed 3 days of work, and sometimes came in late or left early due to shoulder symptoms. The Veteran underwent multiple VA examinations in October 2015 and those reports documented the Veteran’s service-connected ankle, back, and right shoulder disorders did not impact his employment. A November 2017 VA shoulder examination report more adequately documented that due to the right shoulder disorder, the Veteran would be limited in his ability to perform duties of a job requiring him to lift, carry, throw, work overhead, or push or pull for any length of time. A July 2020 VA PTSD examination report documented the Veteran continued to work as a business process analyst, and had been in that role for 2.5 years. October 2020 VA back and knee examination reports documented the Veteran continued to work full time, and had lost 0 to 1 week of work over the prior 12 months due to symptoms of the back and knee. In June 2020 and February 2021 Appellate Briefs, the Veteran’s representative asserted the Veteran’s right shoulder disorder prevented him from maintaining gainful employment. The briefs cited to no evidence of unemployability rather than the assertion, and the Veteran has not directly submitted any evidence of unemployability. In September 2020 VA provided the Veteran with an application for TDIU benefits and the Veteran did not complete and return the document and did not otherwise provide any evidence that he was unemployed solely due to service-connected disability during the appeal period. Rather, the available medical evidence and lay testimony indicates the Veteran has either been a full-time college student or a full time employee during the majority of the appeal period. When the Veteran did not work from November 2012 to May 2013, he attributed that to needing to take time off to help his significant other with a medical problem. Although he does miss some work due to service-connected disabilities, the record does not show the Veteran is unemployable due to service-connected disabilities and the claim to a TDIU is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.