Citation Nr: 21016216 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 04-11 931A DATE: March 22, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 1, 2014, is denied. FINDING OF FACT The credible evidence of record does not show that prior to June 1, 2014, the Veteran’s service-connected disabilities rendered him unable to obtain and maintain gainful employment consistent with his education, training, and work experience. CONCLUSION OF LAW The criteria an effective date earlier than June 1, 2014, for the award of a TDIU are not met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1991 to September 1998. The procedural history of this case is a lengthy one and has been detailed in the numerous prior actions in the appeal. Accordingly, the procedural history will only be repeated herein as necessary to explain the state of the issues currently before the Board. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in which the RO, inter alia, denied a rating greater than 30 percent for hypertension with cardiomegaly. The Veteran disagreed with that decision and subsequently perfected an appeal to the Board. During the pendency of that appeal, the issue of entitlement to a TDIU was raised. In a rating decision dated in February 2016, the agency of original jurisdiction (AOJ) granted a TDIU, effective June 1, 2014, the day after the Veteran reportedly had last worked. In correspondence received that same month, the Veteran expressed his disagreement with the effective date assigned for his award of a TDIU. The Veteran reported that although working prior to June 2014, his earned income did not exceed the poverty threshold and requested consideration of a TDIU prior to the effective date assigned by the AOJ. In a March 2017 action, the Board determined that because the issue of a TDIU was previously before the Board as part of the Veteran’s increased rating claim, it remained part of the Veteran’s appeal for a higher rating for hypertension with cardiomegaly, especially in light of the Veteran’s request for an earlier effective date for the assignment of a TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation). The issue of a TDIU prior to June 1, 2014, was then remanded for further development. The issue was thereafter remanded three additional times, the most recent of which was in July 2020. Notably, all four remands were for essentially the same development—that is, to develop evidence regarding whether the Veteran was unable to secure or follow substantially gainful employment at any point prior to June 1, 2014. Upon review of the actions undertaken by the AOJ, the Board finds that at this juncture, there has been substantial compliance with the terms of the Board’s prior remands, such that the Board may proceed with adjudication on the merits. See Stegall v. West, 11 Vet. App. 268 (1998). TDIU Prior to June 1, 2014 Generally, the effective date of an award shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to this general rule occurs in “an award of increased compensation.” 38 U.S.C. § 5110(b)(3); see 38 C.F.R. § 3.400(o)(2). An effective date for such an award may date back as much as one year before the date of the formal application for increase, if it is factually “ascertainable that an increase in disability had occurred” within that timeframe. 38 U.S.C. § 5110(b)(2); see Harper v. Brown, 10 Vet. App. 125, 126 (1997); 38 C.F.R. § 3.400(o)(2). In this regard, the Board notes that the Veteran did not file a specific claim for a TDIU until January 2015. At that time, however, the Veteran had pending a claim for a higher rating for his service-connected hypertension with cardiomegaly, which claim was filed on November 27, 2000. As discussed in prior actions in this appeal, with regard to “claims” for a TDIU, the United States Court of Appeals for Veteran’s Claims (Court) has held that “a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation.” Rice v. Shinseki, 22 Vet. App. at 453-54. In other words, when entitlement to TDIU is raised during the pendency of a claim for a higher rating for a service-connected disability, whether an appeal as to the initial rating assigned or an increased a rating claim, the matter of entitlement to TDIU is considered to be part and parcel of claim for a higher rating. Accordingly, in this case, because the AOJ did not grant TDIU for the entirety of the appeal period (here, from November 27, 1999 (one year prior to the Veteran’s claim for an increased rating for his service-connected hypertension with cardiomegaly) forward), entitlement to an earlier effective date for the grant of TDIU has remained properly on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability(ies). 38 C.F.R. § 4.16(b). In the instant case, the Veteran’s service-connected disabilities include panic disorder with agoraphobia, evaluated as 30 percent disabling from February 18, 2000, to July 27, 2015, and as 100 percent disabling from that date; hypertension with cardiomegaly, evaluated as 30 percent disabling from September 13, 1998, to March 26, 2012, and as 60 percent disabling from that date; and residuals of a nasal fracture, evaluated as noncompensable (zero percent) disabling from September 13, 1998. As such, the Veteran has met the threshold rating requirements for an award of schedular TDIU since March 26, 2012. See 38 C.F.R. § 4.16(a). To be assigned a TDIU on a schedular or extraschedular basis prior to June 1, 2014, it must be also determined that the Veteran was also unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 4.16. At the outset, the Board notes that the evidence of record clearly demonstrates that the Veteran was working and earning income well above the poverty threshold for one person at various points prior to June 1, 2014. Indeed, the Veteran himself has acknowledged his work history and has agreed that obtaining employment was not a problem. The Veteran asserts, rather, that, during the relevant time period, he was unable to maintain that employment once obtained. The Veteran has also contended that at least some of his employment prior to June 1, 2014, was in a protected work environment and thus constituted marginal employment. The Board notes also that in Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) interpreted the meaning of being “unable to secure and follow substantially gainful employment.” 31 Vet. App. 58, 73 (2019). Specifically, the Court stated, [W]e interpret the phrase “unable to secure and follow a substantially gainful occupation” in [38 C.F.R.] § 4.16(b) to have two components: one economic and one noneconomic. The economic component simply 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. As for the noneconomic component, the Secretary himself states that ‘determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold,’ and ‘the ultimate inquiry is instead on the individual claimant’s ability to secure or follow that type of employment’.” Id. The Court also provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment with respect to the noneconomic component, stating that consideration was to be given to certain nonexclusive list of factors which may be addressed when the evidence raises any particular factor. Those factors are (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with possibly relevant factors including, but not limited to, the limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Id. Also relevant to this appeal, and to the Veteran’s argument, 38 C.F.R. § 4.16 provides that “[m]arginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). The regulation further provides that “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.” Id. “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.” Id. Thus, “a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his [or her] particular case.” Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016). If the evidence or facts show that a veteran is capable of only marginal employment, then the veteran is deemed to be incapable of securing or following a substantially gainful occupation and is therefore entitled to a TDIU is the evidence demonstrates that the service-connected disabilities are the cause of that incapability. Id. Further, in a claim for a TDIU, the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). As will be discussed below, the Veteran had a varied work history after leaving military service and much of the evidence in favor of establishing entitlement to a TDIU prior to June 1, 2014, consists of the Veteran’s lay statements regarding his ability to function in an occupational setting, reasons for termination and periods of unemployment, and the protected nature of his past employment. As finder of fact, it is the Board’s responsibility to determine the appropriate weight to be given to evidence, which includes determining the credibility of lay testimony. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (“[t]he Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted . . . .”); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (explaining that, when assessing the credibility of lay statements, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Upon review of the evidence, and as will be addressed below, the Board finds that although the Veteran’s service-connected disabilities impacted employment prior to June 1, 2014, an inability to obtain and maintain substantially gainful employment due solely to his service-connected disabilities prior to June 1, 2014, has not been shown such that a TDIU is not warranted prior to that date. Specifically, the Board finds that the Veteran is not credible in reporting his work history, to include reasons for termination, periods of unemployment, and protected nature of his work environment, as the evidence of record contains conflicting and contradictory information. See Buchanan, (the Board is permitted to make credibility determinations on a number of grounds, including inconsistent statements and bias). As the Veteran’s lay assertions are not credible, they cannot be used to support his claim. That stated, the Board will proceed to set forth the relevant evidence and then engage in an analysis of the evidence of record, to include identifying the evidence for and against the claim—to include that which the Board has determined undermines the credibility of the Veteran’s lay statements in this case. Relevant to the issue of a TDIU prior to June 1, 2014, the evidence of record shows that the Veteran attended college. When examined in May 2001, the Veteran reported that he had completed high school and three years of college but had not earned a degree. The Veteran reported that he was then working as a furniture salesman, which is also what he did for employment after discharge from the military until he moved to Texas. Records then show that the Veteran applied for a position as an Immigration Inspector with the Immigration and Naturalization Service (INS). A document dated in 2002 notes that the Veteran had “medical findings which may hinder safe and efficient performance of essential job functions” and that a medical determination was deferred pending further documentation. The record, however, does show that the Veteran had received a tentative offer of employment for the position of Immigration Inspector (Mixed Tour) with the Department of Homeland Security (DHS); the offer was noted to be tentative based upon satisfactory completion of pre-appointment requirements and the availability of funded vacancies. Then, via letter dated Jaune 20, 2003, the Veteran was informed that the tentative offer had been withdrawn “through no fault of [his] own.” It was stated that the withdrawal of the tentative offer was due to “changing circumstances,” to include having received funding for additional full-time Immigration Inspectors. As such, funding for additional mixed-tour Inspectors had been withdrawn. In September 2006, the Veteran moved to have his case advanced on the docket. The Veteran reported that he and his wife had recently separated and that his former job at Alltell Wireless “was done away with,” but that he had started a new job as a phone operator in a different division. During a Board hearing that same month, the Veteran stated his belief that his service-connected heart condition had limited his job options, stating that he was denied employment with the INS on account of that condition. The Veteran also stated that sales was the only employment he was qualified for without a college degree, but that sales jobs were not a viable option due to his problems with hypertension, to include dizziness, that required him to take a lot of time off. The record then shows that the Veteran was determined to be entitled to Vocational Rehabilitation and Employment (VR&E) services as of July 2009. Notably, a “Counseling Report—Narrative Summary” indicated that the Veteran had recently completed a Bachelor of Science in Business Management in June 2009 from the University of Phoenix. The Veteran reported that he had applied for VR&E service to complete his degree, as he had utilized all of his the VA educational assistance benefits afforded to him in accordance with Chapter 30, Title 38, United States Code (known as the Montgomery GI Bill Active Duty (MGIB-AD)). Notably, the summary indicates that the Veteran was certified as attending school full time from August 2008 to January 2009. Regarding post-service employment history, the Veteran was noted to have “worked for Sears Homelife Furniture in their customer service department where he was also responsible for payroll.” He then worked for Verizon in their call center as a customer service representative until 2006. The Veteran stated that he left that job to work for a similar company to decrease his stress. The Veteran reported then working for Alltell, stating that he experienced similar stress and anxiety due to the work environment (a room with 200 people). The Veteran reported that Alltell accommodated him by allowing extra breaks, allowing him to move his desk near a window, and modifying his job duties. He stated that he was involved with training others and also volunteered for special projects in order to change his day-to-day duties. It was then noted that the Veteran developed Epstein Barr and had symptoms of fatigue and malaise and “was on short term disability from June 2008 until January of 2009.” Although the Veteran was determined to have an employment handicap, it was indicated that the Veteran “may already have more of the necessary skills to qualify for competitive employment in a suitable job given his prior work experience and now his Business Management Degree.” Analysis did not support that the Veteran was significantly impaired in his ability to participate in a program and achieve rehabilitation. A rehabilitation plan was then developed, as a November 2009 letter was sent to the Veteran concerning his VR&E benefits. It was noted that the Veteran’s rehabilitation plan specified that he would obtain employment in Business Administration or a related field and that the Veteran had “obtained employment as Program Ministries Coordinator.” The letter then stated that because the Veteran had secured suitable employment, it was believed that he had met the objectives of his plan and his case was being considered for a successful closure. Other evidence of record substantiates that the Veteran obtained employment with Community of Christ as a Program Ministries Coordination beginning on November 1, 2009; his annual salary was reported to be $30,000.00. The Veteran presented testimony at another Board hearing in May 2010. Regarding the severity of his hypertension with cardiomegaly, the Veteran again asserted that he was denied employment with the INS because of that condition. There was, however, no further discussion of the Veteran’s employment during that that hearing. The Veteran underwent a VA nose, sinus, larynx, and pharynx examination in November 2010. The report of that examination notes that the Veteran had been employed at a telephone call center until 2008 but that he was then “[c]urrently a full-time grad student for professional counseling at Liberty University” via distance learning. Similarly, at the time of a November 2010 VA heart examination, it was noted that the Veteran was not then currently working and had been unemployed for one to two years. The stated reason for his unemployment was that he was a full-time student. The Veteran was also afforded a VA hypertension examination that same month, the report of which contains the examiner’s opinion that it was more than likely that the Veteran was able to obtain and maintain gainful employment in the physical and sedentary sector without limitation. An addendum opinion was obtained in April 2011, which contains the examiner’s opinion that it was likely that the Veteran was able to obtain and maintain gainful employment in the physical and sedentary sectors without limitations. In so opining, the examiner noted that the Veteran had a normal myocardial perfusion scan and echocardiogram. It was further noted that the Veteran was then currently on no medical therapy for his heart disease, only for his mood disorder. The report of an April 2012 VA hypertension examination also contains an examiner’s opinion that the Veteran was capable of gainful sedentary and physical employment, as it was noted that the Veteran then had mild hypertension, well controlled by medication. Records dated in June 2014 show that the Veteran was approved for unemployment benefits by the Georgia Department of Labor. A claims determination indicates that the Veteran had been fired for unsatisfactory job performance and could therefore be paid unemployment benefits because the Veteran had not been warned that his performance was about to cause him to lose his job and was not given a chance to correct what was wrong. No additional records concerning the circumstances leading to the Veteran being fired are of record. Private treatment records dated in October 2014 note that the Veteran was an ordained minister, but indicate that since discharge from service, the Veteran had been unable to hold a job for more than two years at a time. It was noted that he continued to have intermittent chest pain, severe fatigue, generalized weakness, depression with anxiety, and recurrent panic attacks. Notably, the private treatment record reveals that the Veteran had an Epstein-Barr infection in 2008 that caused severe fatigue, headaches, severe nausea and vomiting that lasted for nine months. In November 2014, the Veteran was afforded a VA mental health examination, the report of which includes a diagnosis of panic disorder. Based on review of the record and examination of the Veteran, the examiner stated that the Veteran’s psychiatric disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner indicated that the Veteran’s ability to understand and follow instructions was not considered impaired. It was also noted that the Veteran’s ability to retain instructions as well as to sustain concentration to perform simple tasks was considered not impaired, though may be disrupted on a transitory basis during panic attacks. His ability to sustain concentration to task persistence and pace was also considered not impaired. Additionally, his ability to respond appropriately to coworkers, supervisors, or the general public, and to respond appropriately to changes in the work setting, was considered not impaired. Regarding the Veteran’s education and work history, it was noted that the Veteran had received his “Masters in Religious Counseling in 2012.” It was stated that he was last employed in May 2014, in counseling, for Pasco County. The Veteran stated that he was seeking employment and was looking for positions outside of the religious field. In January 2015, the Veteran filed a VA Form 21-8940 (Veteran’s Application for Increased Compensation based on Unemployability), dated in November 2014, in which he indicated having completed four years of college. The Veteran also reported that the he attended Liberty University, online, from January 2012 to October 2013 during which time he obtained a degree or certificate in Pastoral Counseling. The Veteran further reported that he worked in customer service at Alltell Wireless from December 2007 through December 2009; as a chaplain at Community of Christ from January 2009 to July 2009; as a program director at Community of Christ from November 2009 to December 2011; as a chaplain at the Medical Center of Georgia from January 2012 to December 2013; and as a counselor at Pasco County Jail from December 2013, through May 2014. The Veteran reported that while employed for Alltell Wireless, he missed 60 days of work; his highest gross monthly earnings were noted to be $3,000.00. While employed at Community of Christ, he reported missing a total of 90 days, and stated that his highest gross monthly earnings were $1,900.00 while he was serving as a chaplain and $1,500.00 while serving as a program director. While serving as a chaplain at Medical Center of Georgia, the Veteran reported 30 days of time lost due to illness and stated that his highest gross monthly earnings were $1,658.00. Lastly, the Veteran reported that he lost 30 days of work due to illness while employed at the Pasco County Jail; his highest grossly monthly earnings for that position was reported to be $2,400.00. Notably, on the VA Form 21-8940 received in January 2015, the Veteran reported that he had last worked on May 30, 2014, and stated that he became too disabled to work as of that date. The Veteran also reported that his disabilities, indicated to be hypertension with cardiomegaly and anxiety disorder, had affected his ability to maintain full-time employment as of July 2002. In January 2015, the Veteran submitted a statement, dated in November 2014, from J.D.P., a fellow employee who worked with the Veteran from January 2012 to November 2013 while they were “Chaplain Residents” for the pastoral care department of a medical center in Georgia. J.D.P. stated that the Veteran’s duties involved assisting families through grief, lifestyle adjustments, substance abuse, and other issues. J.D.P. reported that the Veteran had great difficulty keeping up with the demanding pace of the hospital environment and, at times, appeared physically, emotionally, and mentally unable to continue. J.D.P. felt that although the Veteran had a strong desire to succeed, his physical, emotional, and mental barriers seemed to keep him from performing at his full capacity. Also of record is a February 2015 SSA mental status examination, the report of which noted that the Veteran’s last job was working at Pasco County Jail. It was stated that after 5 months, the Veteran was fired because he could not do a full day of work and would call in sick. The examination report also indicated that symptoms, based on the Veteran’s report and clinical observations, appeared to be severely impacting activities of daily living, vocational performance, and interpersonal functioning at this time. It was noted that the Veteran’s emotional and psychological functioning, given compliance and follow through with the above recommendations, currently appeared poor with respect to employability. Also of record is the report of a July 2015 VA mental disorders examination. At that time, the Veteran reported that after service, he worked as a furniture salesman. He stated that the company had folded due to the economy, and that his termination was due to that and not due to poor performance or medical problems. The Veteran reported that he then worked in a call center answering phones and selling phones for Verizon from 2004 to 2006, after which he moved to Alltell from 2006 to 2007 or 2008. He reported that he was good at what he did, but stated that his attendance was an issue, although it was ignored due to his performance. By his report, he had some difficulties doing this due to anxiety, but stated that he was employed as a church program director, part time, from 2009 to 2010, as a chaplain with a church from 2012 to 2013, and that he had worked for the pastor organizing services. The Veteran reported that he had been an assistant to the chaplain before getting a degree in Christian counseling, online. The Veteran reported that he had tried to be a chaplain at a medical center in Georgia, but he was unable to do that because it triggered his psychiatric symptoms. He also reported working as a counselor through the sheriff’s office but was out of his element. The Veteran stated that although he used to be able to do well with public speaking, his anxiety had worsened to the point where he could no longer do that. Notably, the examiner stated the Veteran’s then “current limitations are worse than in the past as noted in his self-reported work history” in that “when he has a panic attack he then cannot concentrate or interact with others and is totally not functional.” The examiner noted that “[t]his was not the case in the past (pre 2013),” but since that time, the Veteran’s seclusion and avoidance had worsened. In July 2015, the Medical Center of Central Georgia returned a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits), noting that the Veteran had been employed as a Chaplain Resident from January 11, 2012, to December 3, 2013. It was indicated that in the 12 months preceding the last date of employment, the Veteran had earned $21,684.99. It was also stated that the Veteran had lost no time during the 12 months preceding the last date of employment due to disability. Additionally, no concessions were indicated to have been made to the Veteran by reason of age or disability. Also in July 2015, Community of Christ returned a VA Form 21-4192 in which it was confirmed that the Veteran was employed part-time performing “Ministerial/Pastor” work from January 1, 2009, to December 31, 2011. It was stated that the Veteran worked 20 hours per week and that he had earned $18,090.00 during the 12 months preceding the last date of employment. The reason for termination was stated to be “voluntary separation.” Whether the Veteran had lost time or was given any concessions was unknown. Curiously, VA treatment records dated in November 2015 indicate that the Veteran was then employed and working for the school district; other treatment records also noted that the Veteran was a school therapist. In January 2019, the Veteran submitted the report of private vocational evaluation, dated in November 2018. The evaluation was prepared by D.M., a Certified Rehabilitation Registered Nurse. D.M. indicated a review of the claims file, noting the Veteran’s service-connected disabilities and educational history, noting that the Veteran “received a Bachelor of Science in Business Management from the University of Phoenix in June of 2006.” Regarding the Veteran’s work history, as provided by the Veteran, it was noted that in 2001, the Veteran worked for Levitz Furniture and was terminated for attendance issues; in 2003, he worked for Homelife Furniture and was terminated for attendance issues; from February to July 2004, he worked for Rent A Center in account collections and was terminated for attendance issues; from January 25 to October 2006, he worked for Verizon Wireless and was terminated for attendance issues; from January 2007 to February 2008, he worked for Alltell Wireless, during which he was receiving short term disability payments, and was terminated for attendance issues; from 2009 through 2011 he had no work; 2012, the Veteran was reported to be working as an intern in Pastoral Care at Macon Georgia Hospital and was terminated for attendance issues; in 2013, he worked at Virginia College in Georgia as an assistance teacher; and in 2014, the Veteran worked for the Pasco County Detention Center as a mental health intern and was dismissed after five months. D.M. stated that the Veteran’s education and service-related experiences have provided him with some positive functional transferable skills. D.M. found, however, that the Veteran’s set of disabilities created a “negative synergistic effect on this maintain suitable gainful employment.” D.M. stated that “from a vocational and employment standpoint,” the relevant inquiry is the Veteran’s ability to reliably show up, work, and produce. D.M. noted that the Veteran’s record showed a great deficiency in his work pattern, pointing out that as early as 2001, the Veteran had issues being able to maintain a work schedule capable of sustaining a job. D.M. states that’s although the Veteran had periods of employment, he was not actually capable of engaging in or maintaining work, noting that payroll stubs in 2008 reflect that the Veteran was receiving disability payments and generous vacation and disability payments, but was earning very little from actual wages. D.M. then discussed the Veteran’s service-connected disability and ultimately concluded that since 2001, the Veteran has been unable to maintain suitable gainful employment. He noted that the Veteran had been unable to gain employment with the federal government due to an inability to pass a medical evaluation, that while employed with Alltel, he worked only slightly more than half of the hours that he had been paid for considering the contribution of sick time and short term disability payments, that he had no employment from 2009 to 2011, and that although he had subsequent internships, those positions would not be considered substantially gainful employment. D.M. also relied on statements from former employers Alltel and Verizon that noted that the Veteran’s employment was “plagued with attendance issues due to frequent panic attacks” and that his employment with Verizon was “cut short due to reoccurring health issues.” The record shows that the Veteran submitted another VA Form 21-8940 in January 2020, in which he reported that he was unable to work due to high blood pressure and agoraphobia and stated that he became too disabled to work on April 1, 2000. The Veteran also reported his highest yearly gross earnings were in 2006, while employed with Alltell Wireless, during which year he earned $47,340.00. The Veteran also reported working in various positions for Sears Homelife Furniture from July 1999 to April 2000, during which he lost 120 days due to illness, and from December 2000 through September 2001, during which he lost 30 days due to illness. The Veteran then reported working in sales for Rent A Center from June 11, 2002, to October 2, 2002, during which he lost 60 days due to illness; for Verizon Wireless from October 2002 to January 2005, during he which he lost 120 days due to illness; and for Alltell Wireless from January 2005 through August 2009, during which he lost a total of 10 months due to illness. The Veteran did not report his highest gross earnings for these periods of time. On another VA Form 21-8940 received in January 2020, the Veteran reported working 15 hours a week as a patient service representative with Big Bear Behavioral Health from August 2013 to October 2014, during which time he lost 60 days due to illness; 30 hours a week as a counselor for Pasco County Sheriff’s Department from December 15, 2012, to May 15, 2012, during which time he lost 30 days due to illness (the Board assumes some error in the dates reported); and 34 hours a week as a pastor at the Medical Center of Georgia from January 2012 through December 2012, during which time he lost 45 days due to illness. Additionally, pursuant to the terms of the Board’s last remand, the AOJ attempted to obtain employment information from all employers identified by the Veteran, to include Big Bear Behavioral Health, Rent-A-Center, the Pasco County Sheriff’s Department, Alltell, Verizon, and Sears Homelife Furniture. Notably, extensive efforts were previously undertaken to verify the Veteran’s employment with the Pasco County Sherriff’s Department. It was determined, however, that no employment information existed, although it was possible that the Veteran was serving in some volunteer capacity. Further, Rent-A-Center responded in September 2020 that the Veteran could not be located in their system. Verizon did return a VA Form 21-4192 in which it was stated that the Veteran had been employed as telemarketing representative from October 14, 2002, to January 14, 2005. It was indicated that in the 12 months preceding the last date of employment, the Veteran had earned $23,369.34. It was also stated that the Veteran had lost no time during the 12 months preceding the last date of employment due to disability. Additionally, no concessions were indicated to have been made to the Veteran by reason of age or disability. The reason for termination was stated to be “personal reasons.” No other employer responded to the AOJ’s request for information. In this regard, the Board notes that in correspondence received in August 2020, the Veteran has expressed his frustration over multiple remands for the AOJ to attempt to obtain employment records, which records he says will never be obtained. The Board agrees with the Veteran that any additional efforts to obtain employment information at this juncture would be futile. Lastly, the Board notes that the Veteran had a third Board hearing in April 2019, during which he argued that even though he had earned income from 2003 to 2008, he was not in fact gainfully employed because a portion of his income stemmed from long and short term disability insurance. The Veteran also reported that while employed with Alltell, his wife divorced him and he moved in with his parents from 2009 to 2011, during which years he had no income. The Veteran stated his belief that his cardiomegaly rules out employment other than sedentary employment and that his anxiety has prevented him from maintaining employment, despite functional skills. He also argued that although he had been on the payroll at various jobs, he was simply incapable of engaging in or maintaining work. The Veteran did not assert difficulty in obtaining employment, just in maintaining it. The Veteran also testified that prior to service, he was a furniture salesman. After leaving service, the Veteran reported obtaining employment doing the same, but stated that he not very dependable. The Veteran surmised that employers kept him despite this because the was a Desert Storm veteran. He reported that while employed with Rent-A-Center, he was an account manager, tasked with collections. The Veteran stated that although it was a high stress job, with people constantly yelling at him, he excelled, but eventually could not maintain the hours. The Veteran testified that he had then worked for a call center while employed by Verizon and Alltell, but that he could not handle working in a cubicle, as he felt as though the cubicle was closing in on him. The Veteran stated that he therefore took advantage of short- and long-term disability insurance to maintain his employment and salary. Regarding accommodations, the Veteran reported that he was maintained as an employee solely due to the fact that Aflac, an insurance company, paid Alltell Wireless to keep the Veteran employed. The Veteran’s representative also argued that from 2003 to 2008, although the Veteran was earning income well above the poverty threshold for one person, he was employed in a protected work environment because the income was being paid from disability insurance. Turning to the merits of the claim, as discussed above, with respect to substantially gainful employment, 38 C.F.R. § 4.16 includes an economic component and a non-economic component. See Ray, 31 Vet. App. at 73. Turning first to the economic component, that Veteran has stated that he worked only 5 months in 2014, that from 2011 to 2013, he was living well below poverty level, and that prior to 2012, he worked only half time for two years and three months. The Veteran has also asserted that a large portion of his wages at times were attributable to disability insurance payments. Contrary to the Veteran’s assertions, an earnings record from the Social Security Administration (SSA) shows that the Veteran’s taxed income was, during the relevant time period, as follows: $13,497 (1999); $24,707 (2000); $31,555 (2001); $14,154 (2002); $44, 152 (2003); $43,214 (2004); $38,247 (2005); $47,340 (2006); $47,257 (2007); $40,132 (2008); $3,545 (2009); $0 (2010 and 2011); $17,116 (2012); $19,364 (2013); $24,335 (2014). Comparing these earnings to the amounts established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person, the Board notes that only in years 2009 through 2011 did the Veteran earn wages below the poverty threshold for one person. See http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. As discussed by the Court, “The economic component simply 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.” Ray, 31 Vet. App. at 73. The evidence obtained from the SSA, on its face, demonstrates that at all points during the relevant period, save for years 2009-2011, the Veteran was able to secure and follow a substantially gainful occupation, at least from an economic perspective. Additionally, information received from Community of Christ reflects that the Veteran did earn income above the poverty threshold at least in 2011. The Board acknowledges the Veteran’s argument that he was receiving income through short-term disability payments. In this regard, the Board notes that the Veteran did provide a November 2008 payroll statement demonstrating that a large portion of his wages were attributable to disability insurance payments and sick and annual leave. In an August 2019 remand action, the Board noted that the Veteran had not provided evidence demonstrating what portion of his income was attributable to disability insurance payments for any other year during the period on appeal and remanded the matter, in part, to allow for the Veteran to provide a detailed income history, to include identifying which portions of income were attributable to earned income and which portions were attributable to disability insurance payments. The Veteran, however, has provided no additional information or evidence to substantiate his assertion that large portions of his income were due to disability insurance payments. Although reasonable doubt is to be resolved in favor of the Veteran, “a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.” 38 U.S.C. § 5107. Also, the benefit-of-the-doubt doctrine only comes into play “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.” Id. In this regard, the Board points out that the VR&E “Counseling Report—Narrative Summary” notes that the Veteran developed Epstein Barr and had symptoms of fatigue and malaise and “was on short term disability from June 2008 until January of 2009.” Although this doesn’t specifically identify the Veteran’s Epstein Barr virus as being the reason why he was on short term disability, it certainly suggests it. Further, as stated above and as will be discussed in more detail below, the Board finds that the Veteran is not credible in reporting the circumstances of his employment and, as such, his lay statements are of overall little probative value. Given that the record raises a question as to why the Veteran was receiving disability insurance payments, and as the Board finds reason to discount the Veteran’s credibility, the Board cannot conclude that there has been “an approximate balance of positive and negative evidence” regarding why the Veteran was receiving disability insurance payments such that the Board must resolve doubt in favor of the Veteran and finds that such payments were due to service-connected disability. Accordingly, the Board concludes that evidence of receipt of disability insurance payments has no bearing on whether the Veteran was unable to secure and follow a substantially gainful employment due solely to service-connected disabilities prior to June 1, 2014. Additionally, with regard to the Veteran’s assertion that from 2011 to 2013, he was living well below poverty level, the Veteran has provided a copy of his 2013 income tax return reflecting earned wages below the poverty threshold for one person. Specifically, the copy of his 2013 federal income tax return, which the Veteran filed jointly with his wife, reports wages of only $5,044.00. The Veteran has offered no explanation regarding the discrepancy in income between that which was reported to the Internal Revenue Service (IRS) and that which was reported by SSA for tax year 2013. Further, the Medical Center of Central Georgia returned a VA Form 21-4192 in which it was certified that the Veteran was employed as a Chaplain Resident from January 11, 2012, to December 3, 2013, and had earned $21,684.99, in the 12 months preceding the last date of employment. Although some of that income would have been earned in 2012, the earnings reported by the Medical Center of Central Georgia align with the $19,364.00 of earnings reported by SSA for 2013. Given that the 2013 tax return was a document prepared by the Veteran himself in comparison to official earnings reported by the SSA, as well as information supplied by the Medical Center of Central Georgia, the Board concludes that the Veteran’s income tax return does not accurately reflect wages earned in 2013. Further, the Board points out that the copy of the 2013 federal income tax return provided by the Veterans contains other indications of false information provided therein. Notably, in that tax return document, the Veteran listed his occupation to be “graduate student” and stated that he was attending “Luther Rice University.” The document then reflects that the Veteran claimed the “American Opportunity Credit”; however, in doing so, when asked whether the “student complete[d] the first 4 years of post-secondary before 2013,” the Veteran checked “No.” Evidence of record, however, contradicts this and shows that he received a Bachelor of Science in Business Management from the University of Phoenix in 2009. Additionally, in November 2010, the Veteran reported he was a “full time” graduate student at Liberty University. Further, in 2001, the Veteran reported that he already completed three years of college. This evidence leads the Board to conclude that the Veteran did complete at least four years of post-secondary education prior to 2013, in contradiction to the Veteran’s assertion on his 2013 tax return. Accordingly, because the information included in the 2013 tax return submitted by the Veteran is contradicted by other evidence of record, the Board finds that the document contains falsified information and will therefore not rely on it. Notably, IRS Form 1040 requires that the person declare, to the best of their knowledge and belief, that the return and accompanying schedules and statements are true and correct. Here, the evidence of record clearly contradicts that which was certified as true and correct to the IRS. Given this contradictory, and seemingly falsified information provided to the IRS, the Board concludes that the Veteran is not credible. Additionally, regarding the years 2009 to 2011 in which SSA has reported either no income, or income below the poverty level for one person, the Board notes that during his 2019 hearing, the Veteran reported that it was during this time that his wife had divorced him and he had moved in with his parents. Notably, however, a VA Form 21-686c (Declaration of Status of Dependents) dated in October 2003 indicates that the Veteran married C. in October 2003. A VA Form 21-686c received in August 2009 then reflects that the Veteran and C. divorced in January 2006 (although a subsequent VA Form 21-686c, as well as Court documents, indicate that the divorce took place in February 2007). In February 2009, the Veteran provided a VA Form 21-686c in which he indicated that he had married D.B. in November 2009; a marriage certificate is of record showing that the Veteran and D.B. were married that month. This evidence clearly contradicts the Veteran’s testimony provided during his 2019 Board hearing. Moreover, Community of Christ provided a VA Form 21-4192 in which it was certified that the Veteran was employed part time for the period from January 1, 2009, to December 31, 2011. Additionally, on his January 2015 VA Form 21-8940, the Veteran himself reported working for Community of Christ from 2009 to 2011. These contradictory lay statements and the objective evidence of employment from 2009 to 2011 further bolster the Board’s conclusion that the Veteran is simply not credible. Id; see Caluza, supra (providing that in determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Furthermore, the evidence of record demonstrates that in November 2010, the Veteran was a full-time student. Indeed, the report of a November 2010 examiner states clearly that the Veteran was then “[c]urrently a full-time grad student for professional counseling at Liberty University” via distance learning. Notably, this contradicts evidence supplied by the Veteran in his VA Form 21-8940 received in January 2015 in which he reported having attended Liberty University from January 2012 to October 2013. This also contradicts the Veteran’s assertion that was simply unable to obtain employment during the period from 2009 to 2011; rather, the evidence received from Community of Christ shows that the Veteran was working during this period and other evidence shows that he was also pursuing full time education. Further, although the Veteran reportedly earned no income, or income below the poverty level, from 2009 to 2011, the Board cannot conclude that, during that time, the Veteran was incapable of securing and maintaining employment. Indeed, the Veteran’s prior work history and subsequent work history demonstrates the he has been able to obtain employment throughout the relevant time period. Further, as the Veteran had earned a Bachelor of Science in Business Management from the University of Phoenix in 2009, the Board concludes that the Veteran possessed education enabling him to obtain employment as of June 2009. There is no indication in the Veteran’s medical records that his service-connected disabilities were of such severity prior to June 1, 2014, so as to render him incapable of securing and following substantially gainful employment. Indeed, multiple VA examiners have assessed the Veteran as being able to engage in substantially gainful employment. Although the Veteran has asserted that he was denied employment with the INS due to his service-connected heart condition, letters from the INS/DHS suggest otherwise. Also, as to the Veteran’s assertions that he missed substantial amounts of work due to his service-connected disabilities, the record does not support such a conclusion. Indeed, the Medical Center of Central Georgia stated that the Veteran had lost no time during the 12 months preceding the last date of employment due to disability, which contradicts the Veteran’s report that he had lost 30 days of time due to illness. Verizon similarly reported that the Veteran had lost no time during the 12 months preceding the last date of employment due to disability. The Veteran has also reported contradictory information regarding the purported amounts of time lost due to disability on his submitted VA Forms 21-8940. Given the contradictory and conflicting evidence, and as the Veteran has been found not credible, without some additional evidence to support the Veteran’s assertions, the Board simply cannot conclude that the Veteran’s service-connected disabilities caused him to miss substantial amounts of work. The Board has also considered the Veteran’s argument that his employment prior to 2012 was in a protected environment. The Board recognizes that VA has not defined the term “protected environment” in the regulations governing TDIU claims. Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The applicable VA regulations suggest that a “protected environment” includes “a family business or sheltered workshop.” 38 C.F.R. § 4.16(a). Here, there is no assertion by the Veteran that he worked in a family business. Rather, he asserts that his employment was in a sheltered or protected environment because he was afforded certain accommodations. Here, the Medical Center of Central Georgia and Verizon bother certified that no concessions were made to the Veteran by reason of age or disability. Additionally, for all of the above-discussed reasons, the Board has found that the Veteran is not credible and, as such, his lay statements, standing alone, are simply insufficient to support a finding that the Veteran’s employment was in a protected environment. The Board has also reviewed the private vocational evaluation of record, the report of which concludes that since 2001 that Veteran has been incapable of maintaining substantially gainful employment. Notably, much of the private vocational expert’s opinion in based on the Veteran’s self-reports regarding accommodations and reasons for termination. These reports are not supported by the evidence or record and as the Veteran has been found not credible, any opinion based on the Veteran’s own assertions cannot be deemed adequate. Indeed, the private vocational expert fails to acknowledge that objective evidence shows that the Veteran was in fact employed, as least part time, from 2009 through 2011. He also fails to discuss how the Veteran’s demonstrated ability to pursue his educational pursuits, obtain employment, and earn income well above the poverty level throughout the appeal period factors in to the conclusion that, since 2001, the Veteran has been unable to maintain suitable gainful employment. The vocational expert also fails to discuss evidence showing that the Veteran was employed as a school therapist in 2015, after he was found entitled to the TDIU. Moreover, the vocational expert discusses statements purportedly from former employers/supervisors at Alltel and Verizon, which statements are not of record. Further, the vocational expert suggests that the Veteran’s agoraphobia impacts his ability to function in a traditional work setting. There is no discussion, however, of why the Veteran would be precluded from pursuing employment in a virtual setting, especially in light of his education in counseling and employment history as a counselor. For these reasons, the Board concludes that the vocational expert’s opinion is of little probative value, as it is based primarily on evidence that the Board has found to be contradicted or unclear or not credible. The report also lacks a full analysis of vocational opportunities, to include employment that the Veteran has been engaged in. Overall, the Board finds that the credible, competent, and, therefore, probative evidence of record fails to demonstrate that the Veteran was unable to obtain and maintain substantially gainful employment prior to June 1, 2014. As discussed, the Veteran’s contention that although working prior to June 2014, his earned income did not exceed the poverty threshold is undermined by the objective evidence of record. The gainful nature of his employment positions is well-established by the data received from SSA. The Veteran’s substantially gainful, full-time employment and ability to pursue schooling on a full-time basis while employed part time at all relevant points prior to June 1, 2014, demonstrates that the Veteran was then capable of substantially gainful employment during the relevant time period. The Board also finds nothing in the record to indicate credibly that the Veteran’s employment prior to June 1, 2014, was in a protected work environment or should otherwise be considered marginal employment. Again, the Board stresses that based on the contradictory and conflicting evidence discussed above, to include providing seemingly false information to the IRS and reporting during his 2019 hearing that he has not worked since 2014 when VA treatment records document employment as a school therapist in 2015, the Veteran cannot be deemed a credible historian and his lay statements simply cannot be relied on in this case. Additionally, the Board acknowledges that the Veteran’s service-connected disabilities do have some impact on his occupational functioning; however, the Veteran’s occupational impairment is being compensated for by his combined disability rating of 70 percent prior to June 1, 2014, and 50 percent from February 18, 2000, to March 26, 2012. Indeed, the rating schedule is designed to compensate veterans for impairment in earnings capacity. Were the Board to consider the Veteran’s assertions of missed work as true, the Board finds that the Veteran’s combined disability rating compensates him for that missed worked, as records do not suggest that the Veteran missed more working days than not. The Board also acknowledges that the Veteran’s work history does not demonstrate sustained employment with any single employer for more than a few years; however, his work history does not demonstrate large gaps in employment and there is no credible evidence of record to suggest that the Veteran’s service-connected disabilities caused any termination from employment. Based on these factors, the Board finds that the preponderance of the competent and credible evidence is to the effect that the Veteran was capable of obtaining and maintaining substantially gainful employment prior to June 1, 2014. Hence, entitlement to an effective date for TDIU prior to June 1, 2014, is not warranted. 38 C.F.R. §§ 3.400(o)(2), 4.16. This finding includes a determination that referral for consideration of entitlement to a TDIU on an extraschedular basis for any point prior to March 26, 2012, is not warranted. See 38 C.F.R. § 4.16(b). Additionally, because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.