Citation Nr: 21012305 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-25 625 DATE: March 4, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2001 to November 2005. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD), and assigned an initial 30 percent evaluation, effective from September 2009. In November 2020 the Board awarded 70 percent evaluation for PTSD, and pursuant to Rice v. Shinseki, 22 Vet. App. 447, 452 (2009), took jurisdiction regarding issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU); the Board remanded the case to the RO for further development and adjudicative action of the TDIU. In a December 2020 rating decision, the RO denied TDIU. The case now returns for further appellate review. The Board notes, per the November 2020 BVA Remand, the RO was to further develop and substantiate a claim for TDIU. In November 2020 the RO sent the Veteran a development letter with an application for increased compensation based on unemployability, VA Form 21-8940. The RO received no response. “If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA has the discretion to determine when additional information is needed to adjudicate a claim. The Veteran is expected to cooperate in the efforts to adjudicate his claim for service connection. His failure to do so subjects him to the risk of an adverse adjudication based on an incomplete and underdeveloped record. Kowalski v. Nicholson, 19 Vet. App. 171 180-181 (2005). Accordingly, the RO was unable to fully develop the Veteran’s claim for TDIU. Absent the Veteran’s assistance regarding his employment history, the analysis below is based on the evidence of record including VA examinations, treatment records, and the Veteran’s lay statements. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more 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). “Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words, a “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed. Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran’s earned annual 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. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant 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. The ultimate question, however, 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 v. Brown, 4 Vet. App. 361, 363 (1993). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the U.S. Court of Appeals for Veterans Claims defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include 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 entire appeal period, the Veteran is service connected for PTSD, evaluated as 70 percent disabling and tinnitus evaluated at 10 percent disabling. Based on these ratings, the Veteran has a combined disability rating of 70 percent throughout the appeal period and meets the schedular requirements for consideration of a TDIU. With respect to his education, the record shows the Veteran completed his obtained his High School diploma prior to service. After service the Veteran attended three semesters of college; Allstate insurance producer university, in which he was the top of his class; completed commercial pilot training; and obtained his Associate degree in information technology (IT). See March 2010 PTSD VA Examination; October 2012 NOD; April 2017 Seattle VAMC. As for his work history, prior to service he reports working as a dishwasher, working for UPS and as a carpet cleaner. After service, he reports working in sales and customer service for Allstate Insurance for approximately five years until starting his own agency in December 2012. In October 2016, the Veteran reports switching to an IT job working for Whidbey Telecom as a network administrator. See March 2010 PTSD VA Examination; September 2013 Form 9; August 2019 PTSD VA Examination. As to the impact the Veteran’s service-connected physical disabilities had on his occupational functioning, during the March 2010 Audio VA examination, the Veteran reports tinnitus in his right ear. There is no report in the record that his service-connected tinnitus has had any impact on his occupational function. Thus, the focus of the analysis will be with respect to the effect of the Veteran’s PTSD. The Veteran’s earliest October 2009 PTSD Everett Veterans Center treatment summary describes the Veteran as having “low motivation and memory issues.” The March 2010 VA examiner determined the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally the person is functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as: panic attacks weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions, recent events. In his appeal for a rating in excess of 30 percent, October 2012 NOD, the Veteran asserts while performing insurance sales he was forgetting tasks, his productivity stopped, he could not meet production goals, was not making it into the office on time, received multiple warnings, had difficulty focusing on work, no motivation to follow up with customers, and that his short term memory was gone. However, by his own account, during that time, he never stopped working and began compensating for is poor memory with a system of notes in his outlook calendar to enable him to return to conversations he had had with customers. In this regard, the Veteran asserts, since filing his PTSD claim in September 2009, most of his symptoms had been in remission and that he was able to function at work and home. He had been so successful as an insurance agent for the next 3.5 years that he opened his own agency in December 2012. He asserts it was only then that his symptoms, such as lack of motivation and memory loss returned, and he began losing customers. See September 2013 NOD; April 2013 Mount Vernon VA clinic psychiatric note. Moreover, during the August 2014 PTSD VA Examination, the examiner determined the occupational and social impairment to be to the same degree found by the March 2010 VA examiner. The examiner further noted the Veteran had been in insurance sales since service and that his recent and remote memory appeared to be intact as he continued to work. The June 2015 VA examiner found the Veteran’s PTSD results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reports working full time in insurance sales. By October 2016 the Veteran reports, after earning his associate degree, switching to a new job in the field of information technology working six days a week. See April and July 2017 Seattle VAMC. The new job as a network administrator is noted by August 2019 PTSD VA examiner who finds the Veteran’s symptoms to result in occupational and social impairment with reduced reliability and productivity. One year later, the Veteran reports having “lucked out” with his family easily able to transition to work from home. See September 2020 Seattle VAMC psychiatry telephone contact. Upon review of the evidence, the Board finds the Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. By the Veteran’s own account, he was never without employment. As noted above, VA examiners determined the Veteran’s PTSD symptomatology resulted in no more than occupational impairment with reduced reliability and productivity at any point during the pendency of the appeal. Throughout the appeal period the Veteran is consistently employed, even running his own agency for several years before earning a college degree to switch fields. The Board finds the Veteran’s service-connected disabilities, coupled with his education and work history, do not preclude obtaining substantially gainful employment. Here, the Board affords greater probative weight to the medical professionals’ opinions as they considered such reported symptoms, conducted a review of the Veteran’s medical records, and performed relevant physical and psychiatric examinations prior to reaching their conclusions. They, additionally, took into consideration the Veteran’s own lay reports, to include that he was working throughout the appeal period. Moreover, even in consideration of the totality of the Veteran’s symptomatology and their resulting functional impairment, the Board finds that he retains the ability to perform the requisite physical and mental acts necessary to perform the occupational tasks consistent with his education and prior work history, as demonstrated by his consistent employment throughout the appeal period. Accordingly, the Board must conclude that the preponderance of the evidence does not show the Veteran’s service-connected disabilities, alone or in combination, render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. As such, a TDIU is not warranted, and the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, 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.