Citation Nr: 21012197 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 09-10 164 DATE: March 3, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of evidence is against finding that the Veteran's service-connected disabilities prevented him from engaging in substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to August 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying entitlement to TDIU. In July 2010, August 2012, June 2017, July 2018, and October 2020, the Board remanded the case for further development and adjudicative action. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. § 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). The sole fact that a veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In exceptional circumstances, where the veteran does not meet the percentage requirements for a TDIU, a total rating nonetheless may be assigned on an extraschedular basis upon a showing that the individual is indeed unable to obtain or retain substantially gainful employment because of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). VA is required to resolve reasonable doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding any material issue. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Analysis Although the Veteran’s claim is for TDIU from October 2008 through the present, that period is composed of three discrete ranges across which TDIU is being sought. The first range is from October 8, 2008 to June 17, 2011, during which the Veteran was rated between 10-30 percent for his disabilities and therefore extraschedular TDIU criteria are relevant. The second range is from June 18, 2011 to August 19, 2016, during which the Veteran was rated between 60-90 percent for his disabilities, and therefore schedular TDIU criteria are relevant. The last range is from August 20, 2016 to the present, during which the Veteran has been rated at 100 percent for his lung cancer disability. As the Veteran’s representative noted in the December 2020 appellate brief, TDIU is only available for Veterans whose schedular rating is less than total. 38 C.F.R. § 4.16(a). As such, entitlement to TDIU for the Veteran will only be considered for the extraschedular period from October 8, 2008 to June 17, 2011 and for the schedular period from June 18, 2011 to August 19, 2016. As a preliminary matter, the Board acknowledges that the information available upon which to adjudicate this issue is notably limited. In a September 2020 appellate brief, the Veteran’s representative argued that VA had not adequately performed its duty to assist because it had not obtained an opinion specifically to determine “the impact of the veteran’s [a]therosclerotic problems both alone and in combination with other service-connected disabilities on the ability to secure and follow substantially gainful occupation.” VA addressed this claim by obtaining a November 2020 opinion where the examiner opined “the veteran's [arterial hypertension] will not cause any functional limitation in any occupational environment or impact his ability perform any employment activities.” However, the Board would like to further clarify that the Veteran had notification of multiple instances when he could have provided additional information to support this claim but did not do so. In an October 2008 VCAA letter, VA informed the Veteran that it did not have sufficient evidence to adjudicate his claim and requested that he complete a VA Form 21-8940 to provide the needed employment information for TDIU. The form was never returned. A March 2009 statement of the case (SOC) stated that there was no evidence of TDIU in the Veteran’s record, and the Veteran elected not to submit additional evidence before appealing the case to the Board. The subsequent July 2010 Board decision remanded the TDIU issue, among others, for the lack of records available to adjudicate, but no additional records regarding employment were submitted despite notification letters in July 2010, December 2010, and February 2011 informing him that more information was still needed. In response to a September 2011 supplemental statement of the case (SSOC) once again denying TDIU entitlement, the Veteran submitted an SSOC Notice Response saying explicitly that he would not be submitting any additional information. A notice of disagreement submitted in December 2011 implied that the Veteran may have been in receipt of Social Security benefits due to his disabilities but upon request, the Social Security Administration responded in November 2014 that it did not have any medical records for him. He was informed of this in October 2015 and asked to furnish relevant documents but did not. Board remands in June 2017, July 2018, and October 2020 all afforded additional opportunities for the Veteran to provide more evidence, but none was submitted. Most recently, in November 2020, VA called the Veteran and explicitly asked whether he had additional information to submit to support his TDIU claim. The Veteran responded that he did not and waived the 30-day response period. The Board recognizes that the limited breadth of information may not afford the clearest image of the Veteran’s work history upon which to assess entitlement to TDIU. However, given the repeated attempts to secure additional evidence and the apparent voluntary decision not to provide any, the Board finds that VA has satisfied its duty to assist the Veteran in the development of his claim and therefore it is appropriate to proceed with adjudication of this issue. 38 U.S.C. § 5103. Extraschedular consideration from October 8, 2008 to June 17, 2011 Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case to the Director for consideration of an extra-schedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). In this case, the Board declines to refer the Veteran’s case for extraschedular consideration by the Director. The Veteran contends throughout the records that he is entitled to TDIU due to the impact that his service-connected disabilities making him unemployable, citing an October 2008 opinion from a private physician claiming that he is “poorly unemployable due to his multiple medical conditions.” However, the record indicates that the Veteran worked as a professor at two universities on a part-time basis between 2007 and April 2017. Therefore, it appears that the Veteran is specifically arguing that his disabilities made him unable to secure or follow substantially gainful employment for which his education and occupational experience would otherwise qualify him. Therefore, the Board must assess the economic and noneconomic components of TDIU analysis detailed by the Court in Ray v. Wilkie, as discussed above. In this case, the record fails to demonstrate that the Veteran’s disabilities impaired him either economically or non-economically in a way that warrants referral of TDIU to the Director. As to the economic prong of the analysis, it appears that the Veteran’s income for the 2008-2011 period was above the U.S. poverty threshold for one person. The Board again emphasizes that the amount of information regarding the Veteran’s employment history is limited. However, based on the information available, it appears that the Veteran reported working as a professor for two universities during this time period. He reported in his Vocational Rehabilitation and Employment (VR&E) documents that one university paid him $2000 every five weeks (or roughly $1,600 a month) while the second paid him anywhere between $606 and $1,050 a month. The Board recognizes that, in those same documents, the Veteran stated that he was paid on an hourly basis at the second university, therefore accounting for the broad discrepancy in payment. In light of the VA’s duty to consider the Veteran’s record sympathetically, the Board will utilize the $606 value in its economic assessment. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Altogether, this information suggests that the Veteran was making approximately $2,206 a month, totaling an income of approximately $26,472 a year. The Board recognizes the fact that the Veteran’s employment as a professor was on a semester basis, highlighting the legitimate possibility that there were semesters where he did not work both positions, or even did not work at all. However, without the requested additional information detailing his pattern of work, the Board is not at liberty to assume the periods of time when he may or may not have been working. As such, the $26,472 value must be compared to the U.S. poverty thresholds between 2008 and 2011, which ranged from $10,991 and $11,484. See U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited Jan. 27, 2021). The $26,472 value far exceeds the poverty thresholds. Even assuming for the sake of argument that the semesterly character of his employment resulted in the Veteran only actually performing as a professor for half a year, the approximate yearly income would be about $13,236 – still above the maximum threshold of $11,484. Therefore, the economic prong of the substantially gainful employment analysis cuts against a referral to the Director for extraschedular TDIU consideration. As for the non-economic prong, the Board looks first the Veteran’s education and training. The Veteran is well educated, possessing both a bachelor’s degree in Business Management and a master’s degree in Business Administration. He also completed all the coursework for a master’s degree in Management Information Systems but did not complete the last thesis requirement in order to officially obtain the additional degree. In his VR&E application materials, the Veteran expressed that he was seeking vocational assistance in order to obtain an advanced degree, ideally a doctorate, in order to improve the likelihood that he be hired as a professor full time. Even accepting the Veteran’s contention that he could not get a full-time professorship without a doctorate as true, his advanced degrees demonstrate that a lack of education and training is not a factor of relevance for TDIU assessment in this case. As to occupational impairments due to service-connected disabilities, there are two disabilities for which the Veteran was rated that are to be considered during this period. The first disability is hypertension, for which the Veteran’s multiple C&P examinations throughout June 2011 to August 2016 state had no impact on the Veteran’s ability to work. The second disability is diabetes mellitus, which the Veteran reported in his VR&E document had the only functional impairment of causing him to need to use the restroom approximately every hour and a half. However, the Veteran also explicitly stated that working as a professor was good for this impairment, because the position allowed him the flexibility to be able to use the bathroom as needed without affecting his performance at work. Therefore, the only service-connected limitation present during this period did not effectively impair his employment at all and as such, the noneconomic assessment also does not support making TDIU referral. Because consideration of both the economic and noneconomic prongs of the substantially gainful employment analysis discourage a finding that the Veteran’s service-connected disabilities made him unable to secure or follow substantially gainful employment, the Board declines to make a referral for extraschedular TDIU to the Director, foreclosing entitlement to TDIU for that period.   Schedular consideration from June 18, 2011 to August 19, 2016 In order to determine whether the Veteran is entitled to compensation for schedular TDIU, the Board uses the same substantial gainful employment analysis as above. However, because this period is schedular, the Board may decide whether TDIU should be granted without first needing to make a referral. For this schedular period, consideration of the noneconomic prong of the substantially gainful employment assessment is essentially the same as that above for the extraschedular period. The same $26,472 projected income is used; the only difference is the U.S. poverty thresholds against which that value is to be considered. From 2011 to 2016, the poverty threshold ranged from $11,484 to $12,228. See U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited Jan. 27, 2021). Because the Veteran’s approximated income continues to substantially exceed the poverty threshold, the economic prong of the substantially gainful employment assessment once again does not support a grant of TDIU. The noneconomic prong of the analysis for the schedular period is more complex than that of the extraschedular period but comes to the similar conclusion that TDIU should not be granted. The educational history is the same as above. The difference at this juncture of the assessment is the number and types of disabilities for which the Veteran was service connected, and how those disabilities may have impacted the Veteran’s ability to perform in his occupation as a professor. In June 2011, the Veteran received service-connection for peripheral vascular disease associated with diabetes mellitus in the lower extremities, and in June 2016 received service-connection for peripheral neuropathy associated with diabetes mellitus in the lower extremities and the right upper extremity. Therefore, the overarching question is whether any of the service-connected disabilities he had during this period – hypertension, diabetes mellitus, peripheral vascular disease, and/or peripheral neuropathy – caused any sort of functional impairment that made him unable to secure or follow substantially gainful employment for which his education and occupational experience would otherwise qualify him. The Veteran’s record does not include any indications that these disabilities posed impediments to the Veteran’s ability to perform as a professor. While the record indicates that some of these disabilities did eventually cause physical limitations that affected his work, they did not manifest until after the Veteran was in receipt of a total disability rating and therefore was no longer eligible for schedular TDIU. Numerous VA medical examinations conducted between June 2011 and August 2016 inquired whether the Veteran’s service-connected disabilities affected his employment, and the response was no in each case. Returning to the Veteran’s VR&E documentation, VA personnel noted that the Veteran’s service-connected disabilities, although not yet service-connected for them at the time, “significantly limit[ed] the viable chances of the Veteran to obtain suitable employment since he cannot perform jobs requiring exertion of significant physical activity or heavy tasks.” However, given that the Veteran was not engaged in physically strenuous employment nor was he looking to be – he stated in these documents that he specifically intended to remain a professor but was seeking advanced education to decrease the financial strain he was experiencing as a part-time professor – this remark is insufficient to demonstrate that the Veteran’s additional disabilities precluded him from engaging in substantially gainful employment. As a result, the noneconomic prong of the substantially gainful employment analysis also does not support a finding that the Veteran’s service-connected disabilities made him unable to secure or follow substantially gainful employment for which his education and occupational experience would otherwise qualify him. (Continued on the next page)   Therefore, the requirements for TDIU have not been met at any point in the appeal period because the preponderance of evidence establishes the Veteran maintained substantially gainful employment during the portion of the applicable rating period in which his schedular rating was less than total, and as such, the Veteran's appeal must be denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.