Citation Nr: 21013263 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-43 840 DATE: March 9, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to January 13, 2018 is denied. FINDING OF FACT Prior to January 13, 2018, the evidence does not demonstrate that the Veteran’s service-connected disabilities preclude her from securing and following any substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to January 13, 2018 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from February 1982 to March 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction of the case is now before the RO in St. Petersburg, Florida. In June 2019, the Board, in pertinent part, remanded the issue on appeal for additional development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). TDIU 1. Entitlement to a TDIU prior to January 13, 2018 The Veteran asserts that her service-connected PTSD prevents her from securing and following any substantially gainful occupation. In particular, the Veteran reports that she had panic attacks, suicidal thoughts, a deep depression, nightmares, difficulty with decision-making, and difficulty dealing with stressful situations. She contends that all of these problems contributed to her difficulty obtaining and maintaining employment. See February 2014, May 2014, and December 2015 statements. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as "an occupation that provides an 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." Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage." Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the U.S. Census Bureau. 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). When jobs are not realistically within his or her physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners' conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his or her ability to obtain and maintain employment. The relevant appeal period has been limited to the period prior to January 13, 2018, since the Veteran is in receipt of a 100 percent combined evaluation from January 13, 2018. Specific to the facts of this case, entitlement to a TDIU from January 13, 2018 is moot. Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 247 (2011). Prior to January 13, 2018, the Veteran meets the schedular requirements for a TDIU, as her combined evaluation is 70 percent from July 6, 2012 and 90 percent from February 13, 2014 (PTSD as 70 percent disabling; sleep apnea as 50 percent disabling from January 13, 2018; gastroenteritis as 30 percent disabling from February 13, 2014; left knee osteoarthritis as 20 percent disabling from February 13, 2014; tinnitus as 10 percent disabling from February 6, 2014; right knee osteoarthritis as 10 percent disabling from February 13, 2014; left ankle osteoarthritis as 10 percent disabling from February 13, 2014; vertigo as 10 percent disabling from February 13, 2014; and noncompensable evaluations for right ankle osteoarthritis, left ear drum perforation, and sinusitis). A careful review of the record reveals that the Veteran had worked full-time in a variety of positions. She described how she had worked for eight years as a caseworker in social services and as a detention officer and a trolley cop for four years. From June 2008 to July 2010, the Veteran said that she worked as a contractor for Border Patrol, where she was a medical escort for detainees. She said that she was fired from that job for unionizing the workers. Then, she reportedly began to work part-time for a homeless veteran as a caseworker. A January 2016 VA treatment record indicates that the Veteran was working at a commissary in shipping or handling. The Veteran had obtained an Associate’s degree in Administrative Criminal Justice in 2006. From 2011 to 2013, the Veteran was attending school and working toward a degree in Labor Studies. She completed three years of college, but she did not attain her degree. The Veteran had reported that she had been unable to find full-time employment since 2010. However, at an April 2018 VA examination, the Veteran reported that she had relocated in May 2016 and was currently working in the transportation department for VA in Tuskegee, Alabama. Given the new employment information, the Board, in a June 2019 remand, requested that the Veteran provide an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). To date, the Veteran has not responded to VA’s request for updated information on her employment status. (Continued on the next page)   Taking into consideration the totality of the evidence, the Board finds that the evidence does not show that a TDIU prior to January 13, 2018 is warranted. On that basis, the Board finds it significant that the Veteran has indicated that she has been employed since May 2016. Despite receiving requests to provide information regarding her current employment status, the Veteran declined to submit an updated VA Form 21-8940. The Veteran has not presented any evidence to suggest that her current employment is other than substantially gainful employment. Given that the Veteran has been able to maintain that employment since 2016, the Board concludes that the Veteran’s service-connected disabilities do not preclude her from securing and following any substantially gainful employment. Accordingly, entitlement to a TDIU prior to January 13, 2018 is not warranted. In summary, the preponderance of the evidence weighs against the Veteran’s claim for entitlement to a TDIU prior to January 13, 2018. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.