Citation Nr: 21013114 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 10-21 127 DATE: March 8, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities are not shown to have rendered him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1967 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue on appeal was remanded for additional development in September 2018 and August 2020. 1. Entitlement to a TDIU. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, 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. 38 C.F.R. § 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). VA records show that service connection has been established for posttraumatic stress disorder (PTSD) (70 percent), migraine headaches (30 percent), tinnitus (10 percent), hypertension (10 percent), tinea pedis (10 percent), and erectile dysfunction (0 percent). His combined schedular disability was 70 percent effective from May 12, 2009, 80 percent from August 28, 2015, and 90 percent from January 18, 2019. The schedular criteria for a TDIU are met. See 38 C.F.R. § 4.16(a). The Veteran has contended, in essence, that he was unemployable due to his service-connected disabilities. In a May 2017 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, he reported that his PTSD and migraine headaches prevented him from securing or following any substantially gainful occupation. He stated he last worked full time and became too disabled to work in 2000. No information was provided as to employment for the last five years. He denied having tried to obtain employment since he became too disabled to work. He reported he had completed two years of college. A copy of the first page of his VA Form 21-8040 was received by VA in August 2017 with additional information as to employment from October 2011 to May 2017 as a school bus driver working 25 hours per week. No information was provided concerning earned income from this employment. In September 2018, the Veteran provided copies of wage and income transcripts from the Internal Revenue Service for the years from 2009 to 2017. The reports for the years from 2012 to 2017 demonstrate his earned annual income exceeded the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited Mar. 2, 2021). In September 2020, VA a received an unsigned copy of page one of a VA Form 21-4192 indicating the Veteran had worked as a school bus operator from November 2011 to September 2018. It was noted he had worked five hours per day and 25 hours per week. There is no evidence that the information was provided by the employer. Two pages of a VA Form 21-8940 signed by the Veteran in September 2020 were provided without information as to earned income or employment. The pertinent evidence of records includes Social Security Administration (SSA) reports showing disability benefits were awarded in March 2011. Records demonstrate the disability began in October 2009 with PTSD as the primary diagnosis and degenerative joint disease as the secondary diagnosis. VA vocational rehabilitation records show the Veteran’s August 2011 claim was disallowed due to his failure to pursue the claim. VA treatment records include a December 2020 PTSD examination report noting the disorder was representative of an occupation and social impairment with reduced reliability and productivity. It was noted that the Veteran reported he had been employed as a school bus driver for six years before retiring two years earlier. He stated he had been generally able to get along with his supervisors and coworkers. A June 2017 VA examination report found the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. VA correspondence dated in October 2020 and December 2020 requested the Veteran to provide additional employment information in support of his claim. No response is included in the available record. Based upon the available record, the Board finds the evidence does not demonstrate that the Veteran’s service-connected disabilities have rendered him unable to obtain or maintain substantially gainful employment. Although the evidence demonstrates that he has been found to be disabled for SSA benefits purposes, such determinations are not dispositive or binding on VA. See Masors v, Derwinski, 2 Vet. App. 181, 187-88 (1992). The Veteran has not provided pertinent information as to his employment as requested by VA; however, the limited earnings information of record demonstrates employment with compensation exceeding the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person for the years from 2012 to 2017. Nor is there any indication that his employment should be considered marginal employment on a facts found basis. As the Veteran has not provided information requested by VA, the nature of the employment and the reason for termination from his last employer is unavailable. The overall evidence of record is not indicative of unemployability due to his service-connected disabilities. The appeal as to this matter is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.