Citation Nr: 21014909 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-45 263 DATE: March 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude her from securing or following substantially gainful employment consistent with her education and occupational background. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2010 to July 2010. This matter comes before the Board of Veterans’ Appeals on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This matter was previously before the Board in January 2020. At that time, the Board remanded the claim of entitlement to a TDIU to seek clarification as to the Veteran’s employment status and earnings history, as well as an opinion on the functional impairment associated with the Veteran’s service-connected disabilities. As the record reflects that the requested development has occurred, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU In order to be entitled to a TDIU, the evidence must show that the Veteran is incapable “of performing the physical and mental acts required” to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual’s particular circumstances. Rice, 22 Vet. App. at 452. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment exists when the Veteran’s earned annual income is below the poverty threshold and in other limited circumstances, including employment in a protected environment. Id. A TDIU 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 either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). The Veteran contends that she is entitled to a TDIU based on the impact of her service-connected disabilities. She meets the schedular criteria for a TDIU based on her combined rating of 70 percent as of December 20, 2016, which includes a 50 percent rating for adjustment disorder. The Veteran is also service connected for a skin condition and a back disability with associated bilateral lower extremity complications, neurogenic bladder and scars. Following her discharge from active service, the Veteran worked as a border patrol agent until she reinjured her back in 2015. The Veteran has a bachelor’s degree and real estate license and is presently employed part-time as a real estate agent. Following review of the record, the Board finds that the evidence does not support entitlement to a TDIU at any time during the appeal period because the most probative evidence does not show that her service-connected disabilities rendered her unable to secure or follow substantially gainful employment. In her July 2020 application for a TDIU, VA Form 21-8940, the Veteran reported that she continues to work part-time as a real estate agent, with her highest gross earnings of $2 to $3000 per month. The Veteran also reported that her total earned income for the past 12 months was $7,232. The Veteran did not submit any other evidence detailing her earnings history. The Veteran indicated that she uses a walker daily, avoids driving for longer than 20 to 30 minutes because of her need to use a bathroom, and that she cannot lift objects. The Veteran also reported that she experiences periods of frustration and anxiety as well as bouts of pain that require her to stay in bed. Even assuming that the Veteran’s part-time work is marginal based on her report of annual income that is less than the poverty threshold for the past year, the medical evidence of record does not establish that the Veteran was unemployable as a result of her service-connected disabilities. Rather, the relevant VA examinations describe limitations in the Veteran’s ability to work, but do not describe her to be so functionally limited as a result of her service connected disabilities so as to be unemployable. The November 2018 VA examination for the Veteran’s back noted that she was able to do gentle yoga and was restricted from lifting over 35 pounds. The examiner determined that the Veteran had no sedentary limitations but would benefit from hourly breaks to stretch. A January 2018 VA examination for the back noted that the Veteran was unable to perform strenuous work or prolonged sitting past 1 to 2 hours without breaks for stretching. The examiner also noted that the Veteran could not engage in repetitive bending or stooping to lift loads more than 20 pounds, but had no sedentary or mild manual labor restrictions. VA examinations for the Veteran’s back in December 2020 and May 2020 describe physical limitations in her ability to lift more than 10 pounds, engage in twisting, stooping or prolonged sitting. A July 2018 VA examination and a May 2020 addendum opinion regarding the Veteran’s neurogenic bladder condition noted that the Veteran would need to be near a restroom due to frequent urination. The May 2020 VA examiner also noted that the Veteran would be expected to have disrupted sleep due to awakening to urinate. VA examinations in January 2017 and May 2020 for the Veteran’s skin noted the condition had no impact on her ability to work. A January 2018 VA examination noted that she could not work outside or be exposed to the sun. An August 2017 VA examination for the Veteran’s scars noted no impact on the Veteran’s ability to work. While a January 2018 VA examination for the Veteran’s scars noted that there was an impact on the Veteran’s ability to work, no explanation of the impact was included. As to the impact of the Veteran’s psychiatric disability, a June 2017 VA examination found occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. A November 2017 VA examination noted that the Veteran’s symptoms were not severe enough to interfere with occupational functioning. A November 2018 VA examination noted that the Veteran had difficulty in establishing and maintaining effective work relationships and in adapting to stressful circumstances, including work or a worklike setting. A January 2017 Social Security Administration (SSA) determination assessed the Veteran as having some limitations, but concluded that they were not severe enough to stop her from working. VA treatment records confirm the Veteran’s back pain, radiating to her lower extremities, as well as her frequent urination. The Veteran’s private treating physician indicated in a June 2017 letter that the Veteran could not lift more than 10 pounds or sit for more than 20 minutes at a time. The Veteran testified at the Board hearing that she is unable to sit down for more than 20 minutes before she has to get up and move around and that, while she has the ability to do that in an office setting, she cannot function at a normal pace to be reliable in a job. The Veteran testified that she is unable to do simple tasks such as focus and remember things, and is often unable to function due to anxiety and depression. The Board finds that the preponderance of the evidence shows that the Veteran’s service-connected disabilities did not render her unable to obtain or maintain substantially gainful employment. While the Veteran’s ability to work has been impacted by her service-connected disabilities, none of the medical examiners or physicians have suggested that the Veteran is unemployable. The Board acknowledges that the Veteran has competently and credibly testified as to the impact her service-connected disabilities have on her ability to work, but finds the lay testimony outweighed by the medical evidence, including the numerous VA examinations, which demonstrate impairment in occupational functioning, but do not demonstrate the inability to obtain or maintain substantially gainful employment. Accordingly, the Board finds that the Veteran’s service-connected disabilities do not preclude her from securing and maintaining a substantially gainful occupation, and entitlement to a TDIU is not warranted. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.