Citation Nr: 21022328 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-53 778 DATE: April 15, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not preclude her from securing and following substantially gainful employment consistent with her educational and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.10, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2006 to August 2010. This case comes before the Board of Veterans’ Appeals (Board) on appeal of January 2017 and October 2018 rating decisions. The Veteran was previously represented by an attorney. The representative submitted written notification that he intended to withdraw his representation in this matter in July 2020 while this appeal was on remand. In August 2020, VA sent the Veteran a letter indicating that the Veteran’s representative has withdrawn his representation. The letter further stated that if the Veteran did not respond within 30 days, VA will assume that the Veteran wishes to represent herself. The Veteran did not respond to the August 2020 letter. The Board is satisfied that the representative’s request to withdraw complies with applicable Board procedure, and that the Veteran intends to proceed without being represented. 38 C.F.R. § 14.631. This matter was remanded the Board in September 2019 and September 2020 for further development and is now back before the Board for adjudication. Entitlement to a TDIU is denied. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of her service-connected disabilities, from securing and following “substantially gainful employment” consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a).  The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component 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. Id. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned 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. 38 C.F.R. § 4.16 (a). TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to TDIU for the period when the 100 percent rating is in effect. Regardless, the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that a TDIU rating may still form the basis for assignment of special monthly compensation under 38 U.S.C. § 1114 (s)). For the purposes of 38 U.S.C. § 1114 (s), a combined 100 percent rating does not satisfy the requirement of “a service-connected disability rated as total,” whereas a 100 percent rating assigned pursuant to a TDIU would satisfy that requirement. Bradley, 22 Vet. App. at 290-93.  In August 2019, the Veteran’s previous representative submitted a brief arguing that in September 2018, the Veteran became unable to sustain gainful employment due to her service-connected disabilities. Due to conflicting evidence in the record regarding when the Veteran claimed to be unable to work, the Board remanded this matter in September 2019 and September 2020 to provide the Veteran with additional opportunities to submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, or any other information which could support her claim for entitlement to a TDIU. The record indicates that the Veteran was provided with additional copies of the application for a TDIU in November 2019 and September 2020, but the Veteran did not return a completed copy of the application. The Board therefore will rely on the other evidence of record to indicate when the Veteran reported that she became unable work due to her service-connected disabilities. The Veteran’s former representative submitted an August 2019 report from Social Security Administration (SSA) indicating that the Veteran last worked in 2018 and earned approximately $21,932.00. The U.S. Census Bureau poverty threshold for a single person under the age of 65 for 2018 was $13,064. Thus, her earnings exceeded the threshold for that year. There are no additional SSA or tax documents in the claims file indicating that the Veteran worked after 2018, however, the Veteran reported in a December 2019 VA examination she had been unemployed since October 2019, and prior to that worked for a consulting company for four months. She further reported that she last worked for state farm as an insurance agent for three months and that she worked for American Express for 2 years in 2016. Whether the employment with the consulting company in 2019 was substantially gainful is unclear as the Veteran did not complete and return a VA 21-8940 Form, which solicits such information. In August 2019, the Veteran applied for VA vocation rehabilitation and employment benefits. Unfortunately, the Veteran failed to report for scheduled appointments and her file was closed. November 15, 2019, Notice Letter. The Board therefore finds that the earliest date during this period of appeal which the Veteran claimed to be unemployed due to her service-connected disabilities was September 2018, as alleged by her former representative in the August 2019 brief. For the period from September 2018, the Veteran was service connected for a psychiatric disability rated at 70 percent disabling, bilateral pes planus with plantar fasciitis, rated at 50 percent disabling, right knee disability rated at 10 percent disabling, a migraine headache disability and a left toe disability, each rated as noncompensable, for a combined rating of 90 percent. Therefore, the Veteran meets the schedular criteria for entitlement to a TDIU for this period. 38 C.F.R. § 4.16(a).  Pertinent to the Veteran’s educational history, she reported in a July 2016 VA examination that she completed her bachelor’s degree in business in 2013 and that she returned to school to get a master’s degree in Business Administration. She reported that she had to take classes online due to an argument she had with a fellow student. Regarding the Veteran’s actual occupational impairment due to her service-connected disabilities, the Veteran attended a VA examination for her migraine disability in December 2016. The Veteran reported in that examination that she missed 12-15 days of work per month over the last year due to her headaches. The VA examiner found that, while the Veteran does suffer from headaches lasting 1-2 days which included symptoms of pain on both sides of the head, nausea, vomiting, sensitivity to light and changes in vision, the Veteran did not suffer from characteristic prostrating headaches. A December 2018 VA examiner indicated that the Veteran did suffer from prostrating attacks once every two months and may need flexible scheduling due to potential lost days at work or adjustments to her environmental setting such as lower intensity lighting. Regarding the Veteran’s sprained left toe, a December 2019 VA examiner sequela of a left third toe sprain. Although the Veteran has reported toe pain, there is no evidence that this disability impacts her ability to work. For the Veteran’s right knee disability, the Veteran is service connected for a right knee strain. The Veteran last underwent a VA examination in December 2019. The December 2019 VA examiner noted that a December 2016 X-ray does not show arthritis in her right knee. Range of motion testing was normal, and the examiner noted that, while flexion and extension were painful for the Veteran, there was no functional loss. While the Veteran reported that on flare ups, her knee pain limited running, standing, and walking for more than 10 minutes, the VA examiner opined that her knee disability did not impact her ability to perform any type of occupational task, and that he had no basis to opine that there was additional functional loss due to flare ups based on the Veteran’s objective complaints. A September 2018 VA examiner opined that the Veteran may be limited with long standing, walking, or repetitive kneeling, squatting, or use of stairs. Regarding the Veteran’s foot disability, the Veteran most recently attended a VA examination in November 2020 and was diagnosed with pes planus and plantar fasciitis. Functional loss noted on the exam included that the Veteran’s feet tire easily and prolonged standing or walking on uneven surfaces is painful and difficult. It is also difficult and painful to perform impact activity such as running. In order to alleviate the symptoms, the Veteran must stop or limit the activity triggering the pain. Regarding the Veteran’s psychiatric disability, the Veteran reported in her September 2018 VA examination that she held six jobs of approximately six months each since her last examination in 2016. She reported that she gets bored and frustrated at work and has a short attention span, and that she must take a lot of time off work because of migraines. She reports that her anxiety symptoms affect her work and that she had a major outburst at work due to her anxiety symptoms. The VA examiner opined that her psychiatric disabilities cause her to have difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work and a worklike setting. There are no VA or private treatment records in the claims file for the period from September 2018 which show that that her service-connected disabilities preclude her from securing and following substantially gainful employment consistent with her educational and occupational experience. The Veteran recently completed a master’s degree in Business Administration, and, although the Veteran’s former representative claimed that the Veteran became unemployable in September 2018, the Veteran’s own reports indicate that she did work for at least four months in 2019 for a consulting company, and prior to that, worked as an insurance agent. In summary, although the Veteran’s service-connected disabilities definitely cause some limit to her earning capacity, the medical evidence of record does not show that her service-connected disabilities preclude her from securing and following substantially gainful employment consistent with her educational and occupational experience. Therefore, entitlement to a TDIU is denied. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.