Citation Nr: 21013012 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-37 226 DATE: March 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence does not show that the Veteran’s service-connected disabilities have precluded her from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU due to the Veteran’s service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1990 to September 1993. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a TDIU was raised by the record in the Veteran’s December 2013 Notice of Disagreement. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board emphasizes that the duty to assist is a two-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board remanded the issue of TDIU in an August 2020 remand. On September 15, 2020, the RO sent a development letter entitled “38 U.S.C. § 5103 Notice.” Since the RO did not receive a response from the Veteran, it issued an October 2020 Supplemental Statement of the Case denying the Veteran’s TDIU claim for the failure to return the VA Form 21-8940 Application for Increased Compensation Based on Unemployability. Further, a claimant has the duty to advise VA of his or her current whereabouts. Hyson v. Brown, 5 Vet. App. 262 (1993). As stated in Hyson, there is no burden on the part of VA to turn up "heaven and earth" to find a claimant, and VA's administrative obligation was met in the current case when a notification was sent to the Veteran’s last address of record. Id. at 265. TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing and following substantially gainful employment consistent with her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. Pursuant to 38 C.F.R. § 4.16, 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. 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. Under 38 C.F.R. § 4.16(a), if a veteran is only service connected for one disability, that disability must have a rating of 60 percent or more; if the veteran has two or more service-connected disabilities, at least one of those disabilities must have a rating of 40 percent or more, and the total combined rating of service-connected disabilities must be at least 70 percent. Disabilities affecting a single body system, or of a common etiology, shall be considered as a single disability. Here, the Veteran’s combined evaluation has been 70 percent for the entire period on appeal. The Veteran’s right knee instability has been rated at 30 percent and an additional 30 percent rating for the same knee due to degenerative joint disease; both are considered of the same etiology. The Veteran’s combined disability rating meet the requirements for schedular consideration of TDIU. That being said, the Board must still evaluate whether the service-connected disabilities precluded her from securing and following substantially gainful employment during the appeal period. The Veteran filed a VA Form 28-1900 for Vocational Rehabilitation Benefits in September 1993, December 1993, June 1996, September 2003, June 2004, and February 2005. On the application, she indicated that she had 12 years of education. In September 2003, she stated that she was working one day a week as a disc jockey and that she was physically limited due to her service-connected right leg condition. She stated she was unable to do prolonged standing or sitting. In a June 2008 VA physician’s assessment, the Veteran reported that she was employed with a collections company. In a 2013 VA examination for an ankle condition, the Veteran reported that from 2005-2007 she went to school for 2 years studying business management and earned an associate degree. At that time, she reported that she was working full time doing counseling. The Veteran was also afforded a VA examination for her right knee in 2013. The examiner found that the Veteran had functional loss for the right knee. The examiner also found the Veteran’s right knee to have less movement than normal, excess fatigability, pain on movement, deformity, and interference with sitting, standing, and weight bearing. In the Veteran’s December 2013 Notice of Disagreement, she stated that she missed days of work due to her knee. She also stated that she was in constant pain and that she has received a series of cortisone shots. In the September 2014 VA Form 9, she stated that her condition cannot be corrected, and the prescribed medications prevent productive performance because the medication causes sleepiness and dizziness. The Veteran went on to state that her condition creates a difficult position because it affects her making a living. In a November 2017 VA Form 9, she stated that her right knee grinds and locks. She also stated that her right knee is hard to bend and hurts after sitting for long period. The Veteran stated she sometimes requires crutches and uses a pillow between her knees at night. In March 2015, the Veteran submitted a VA Form 28-1902w Rehabilitation Needs Inventory (RNI). On the RNI, the Veteran indicated that she had been working full time from 1999 to 2005 performing inbound collections. The Veteran reported making an average of $1,200 a month ($14,400 annually). From 2005 to 2009, the Veteran reported that she worked in the field of collections, but for a different company. The Veteran reported making an average of $1,288 per month ($15,456 annually). The Veteran reported that she had been with the same company from May 2009 to present (March 2015) as a fulltime qualified mental health professional performing counseling, crisis intervention life skills, and behavior development. The Veteran reported making an average of $1,400 a month ($16,800 annually) from her employment as a qualified mental health professional. The Veteran also reported that she wanted to acquire a career she loved without struggling to pay her bills and that she wanted to go back to school. The Veteran was afforded a VA examination in September 2017 for her service-connected right knee. The examiner opined that the Veteran’s disability impacts her ability to perform any type of occupational task in that the Veteran cannot stand, cannot squat, cannot bend, and cannot walk a long distance due to her condition. There was no objective evidence of pain on non-weight bearing. The Veteran was also afforded a VA examination in September 2019 for her service-connected right knee; the examiner found that Veteran’s disability affected her ability to perform occupational functioning and ordinary activities. The Veteran was limited in walking, standing, and she was unable to effectively have a workout plan. The Veteran reported that her leg pops when the knee locks up. The examiner found some of the additional factors contributing to her disability as swelling, deformity, disturbance of locomotion, and interference with sitting and standing. The examiner found that the Veteran had constant pain due to her knee bending inward, and she described her knee as feeling as if there was a knot behind it. The examiner reported that the Veteran had functional loss of the knee due to it giving out and severe pain that feels like a burning sensation that requires the Veteran to sit down. The Board finds that the evidence shows that the Veteran’s employment from 1999 to 2015 was not marginal. The Board makes this determination with employment information from the Veteran until 2015. In this regard, 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. From 1999 to 2015, the poverty threshold for one person has ranged from $8,501 to $12,082. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. As the evidence shows that the Veteran’s income ranged from $14,400 in 1999 to $16,800 in 2015, her income did not qualify her employment as marginal. 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. Here, the evidence does not provide a factual basis for marginal employment. Taken as a whole, the Veteran’s symptoms do not suggest she was unable to secure or follow substantially gainful employment during this period. Given the Veteran’s education and work history, reported symptoms, and the level of functional impairment as reported by VA examiners and treatment providers, the Board does not consider this level of impairment as one that would preclude employment. The Veteran has worked in a position with low exertion and has some college education and would be qualified for similar positions. The Board considered the Veteran’s lay statements that she has severe pain and issues of standing and sitting for long periods of time. Such limitation, even when considered with all of her other limitations from service-connected disabilities, would not cause an inability to secure and follow substantially gainful employment. Overall, the Veteran is qualified through education and experience to obtain employment that involves sedentary work. Additionally, there is no evidence in the record to show the Veteran is currently unemployed or underemployed. Unfortunately, there is no VA Form 21-8940 Application for Increased Compensation Based on Unemployability in the record, as one was not returned following VA’s request. Based on all the evidence, the Board concludes that the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Thus, TDIU is not warranted, and the claim is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.