Citation Nr: 21012281 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 18-23 831 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not preclude him from securing substantially gainful employment 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. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the United States Marine Corps from December 2002 to December 2007. This matter appears before the Board of Veterans’ Appeals (Board) on appeal of an October 2017 rating decision of the Regional Office (RO). Of note, in a January 2020 Report of Contact, the Veteran cancelled his scheduled Board hearing because he indicated he withdrew from the appeal. In January 2021, the Board sent the Veteran a letter to clarify his intentions. The Board informed the Veteran that if he wished to withdraw the appeal, he needed to submit the request in writing. To date, the Veteran has not responded to the January 2021 letter. Accordingly, the Board is adjudicating the Veteran’s appeal in today’s decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to a TDIU The Board finds that the preponderance of the evidence is against granting the Veteran’s TDIU claim. The Veteran essentially contends that his service-connected disabilities, alone or in combination, preclude him securing or maintaining substantially gainful employment. Specifically, the Veteran reported his back disability and associated leg radiculopathy precluded him from continuing to work as a law enforcement officer. A TDIU may be assigned where the schedular rating is less than 100 percent if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The central question is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board notes initially that service connection is in effect for major depression disorder to now include obsessive compulsive disorder with alcohol use disorder, evaluated 70 percent disabling effective February 3, 2017; left ankle strain, evaluated 10 percent disabling effective December 9, 2007; right ankle strain, evaluated 10 percent effective December 9, 2007; patellofemoral syndrome of the right knee, evaluated 10 percent disabling effective December 9, 2007; patellofemoral syndrome of the left knee, evaluated 10 percent disabling effective December 9, 2007; tinnitus, evaluated 10 percent disabling effective December 9, 2007; paroxysmal sinus supraventricular tachycardia, evaluated 10 percent disabling effective February 3, 2017; lumbar strain with intervertebral disc disease and degenerative disc disease, evaluated 10 percent disabling effective July 25, 2020; allergic rhinitis with deviated nasal septum, evaluated 0 percent disabling effective December 9, 2007; and tension headaches, evaluated 0 percent disabling effective December 9, 2007. The Veteran’s combined disability evaluation for compensation is 90 percent effective July 25, 2020. Thus, he meets the schedular criteria for TDIU. See C.F.R. § 4.16(a). Also of note, the Veteran’s service-connected lumbar strain with intervertebral disc disease and degenerative disc disease was rated 20 percent disabling effective February 3, 2017. The Veteran’s combined disability evaluation for compensation was not affected. During the entire period on appeal, the Veteran’s combined disability evaluation for compensation is 90 percent. The Veteran has undergone various VA examinations during the period on appeal. In a March 2017 peripheral nerves conditions examination, the examiner concluded that the Veteran’s left lower extremity would significantly diminish the Veteran’s productivity because he experiences daily pain, numbness, and tingling. The Veteran reported that on occasion he experiences drop foot and loses balance. In a March 2017 back examination, the examiner concluded that the Veteran is unable to work out, lift items greater than 15 to 20 pounds, or sit/stand for extended periods of time without experiencing significant pain. The Veteran reported that he was unemployed at the time of the examination. In a May 2017 psychiatric examination, the Veteran reported last working as a law enforcement officer in November 2016. He also reported currently attending community college to obtain a general studies degree. The examiner concluded that the Veteran’s anger negatively affects his social relationships and work relationships. In a June 2020 psychiatric examination, the Veteran reported working as a government contractor. The examiner noted the Veteran experiences difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a work like setting. In a July 2020 back examination, the examiner noted the Veteran experiences pain with standing longer than 30 minutes and difficulty performing duties that require prolonged standing. In his Notice of Disagreement (NOD) and VA Form 09, the Veteran indicated that he was going to school to acquire new skills which would allow him to secure employment in a new field. The Veteran similarly reported to the May 2017 VA examiner that he was working towards a general studies degree at the community college. The Veteran’s July 2017 VA Form 21-8940 indicated the Veteran last worked full time in November 2016 for C.C. Sheriff’s Office. He reported working for P. Police Department during the same time period. The Veteran reported completing one year of college and obtaining multiple law enforcement certificates and trainings. Furthermore, in the June 2020 examination, the Veteran reported being employed as a government contractor. In an August 2017 Request for Employment Information, it was reported the Veteran lost seven weeks during the previous 12 months due to disability. The person who completed the form reported the Veteran resigned from his position in November 2016 after working there since June 2015. While the form is unsigned, it is consistent with the Veteran’s reports in the record. The Board recognizes that the VA examiners concluded that the Veteran’s service-connected disabilities restrict his ability to work at various levels since the March 2017 examinations. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); see also 38 C.F.R. § 4.16. The Board finds that the preponderance of the evidence is against granting the Veteran’s claim to TDIU. The Board has considered both economic and non-economic factors, including his skills, previous employment history, general reports to both the VA examiners and to VA, and the conclusions of the VA examiners. During the March 2017 VA examination, the Veteran reported that prior to working as a law enforcement officer, he also worked as a cook post service. However, the Board recognizes that the Veteran’s skillset was largely focused on law enforcement. The Veteran reported that while he was unemployed, he was able to attend community college to pursue a general studies degree and gain new skills to help him obtain and maintain substantially gainful employment. The Board finds that this indicates he was capable to secure substantially gainful employment throughout the appeal period because the skills necessary to complete a college degree are transferable to the workforce at large. (Continued on the next page)   The Board finds that the Veteran was able to find substantially gainful employment during the appeal period as a government contractor per his own report. Although the Veteran was unable to continue as a police officer due to his service-connected disabilities, the Board finds that the Veteran was still able to obtain and maintain substantially gainful employment. Accordingly, the Board finds that entitlement to a TDIU is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.