Citation Nr: 21022586 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 18-53 947 DATE: April 16, 2021 ORDER A total disability rating based on individual unemployability due to a service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran was not rendered unable to obtain or maintain substantial gainful employment as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from January 1964 to January 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision from the Regional Office (RO), which, in pertinent part, denied TDIU. This matter was previously before the Board in July 2019 and February 2021. In February 2021, the Board remanded the issue of TDIU for the RO to assign an initial rating for the newly service-connected sleep apnea, and thereafter readjudicate TDIU on the merits. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the February 2021 Board Remand directives. The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Appellant nor the evidence has raised any specific contentions regarding the duties to notify or assist. TDIU Disability ratings are determined by applying the criteria set forth in VA’s Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the VA Director of Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” 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 a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is 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 in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. 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). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Merits of TDIU Claim In January 2016, the Veteran submitted a formal claim for TDIU, asserting that the service-connected low back disability and LLE radiculopathy prevented him from securing or following substantial gainful employment. See January 2016 VA Form 21-8940 (Claim). The Veteran indicated that he last worked full time in August 2003, and that he became too disabled to work as of March 2014. The Veteran reported that he worked 40 hours a week in manufacturing from June 1972 to June 2002 and was self-employed as a laborer working 33 to 40 hours a week from March 2002 to March 2014. See January 2016 Claim. The service-connected disabilities are sleep apnea (rated 50 percent); PTSD (rated 30 percent); low back disability (rated 10 percent); LLE radiculopathy (rated 10 percent); and a residual pilonidal cyst scar (rated 10 percent) for a combined disability rating of 80 percent. As such, the service-connected disabilities meet the combined schedular disability rating requirements set forth in 38 C.F.R. § 4.16(a) for consideration of TDIU, as there is at least one service-connected disability rated 40 percent with a combined disability rating of at least 70 percent during the relevant rating period. Having considered all the evidence of record, lay and medical, the Board finds that a TDIU is not warranted. While the evidence of record reflects that the service-connected disabilities caused some functional limitations and impairment, the evidence of record during the relevant period does not show that the service-connected disabilities rendered the Veteran unable to secure or maintain substantially gainful employment. A review of the evidence shows that the service-connected sleep apnea has manifested as mild obstructive positional sleep apnea for which CPAP therapy has been recommended. The record shows non-compliance with CPAP therapy despite being advised of the risk on untreated sleep apnea. The evidence also shows subjective reports of fatigue due to poor sleep associated with sleep apnea, back pain, and nightmares. The Veteran has endorsed improved sleep due to sleeping in a recliner and using melatonin as needed. Additionally, the Veteran specifically denied inappropriate sleepiness or decreased vigilance while driving. See September 2015, January 2016, September 2016, April 2017, May 2019, May 2020 VA treatment records; December 2019 VA examination report. The service-connected PTSD has manifested as symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, and difficulty establishing and maintaining work and social relationships. The VA examiner assessed occupational and social functioning with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. See June 2016, July 2019, February 2020, May 2020 VA treatment records; October 2016 VA examination report. The low back disability has manifested as chronic low back pain and mild localized tenderness that has been managed with medications and physical therapy. The record indicates that the Veteran has retained normal to no more than mildly limited range of motion in the spine due to low back pain. The record also shows subjective symptoms of mild intermittent pain, paresthesias, and dysesthesias in the left lower extremity due to the LLE radiculopathy. The Veteran has retained full muscle strength and normal sensation in the left lower extremity with normal gait despite symptoms of the LLE radiculopathy. See May 2015, March 2016 VA examination reports; August 2012, April 2013, July 2014 VA treatment records. The service-connected scar has manifested as a completely healed, superficial scar that is tender to palpation, but does not interfere with function or cause any other limitations. See April 2006 VA examination report. The treatment records are silent for complaints, symptoms, or treatment, for the service-connected scar. Although the service-connected disabilities have caused some functional impairment commensurate with the degree of compensation the Veteran is receiving, the evidence of record does not show that the service-connected disabilities have preclude the Veteran from obtaining (securing) or following (maintaining) substantial gainful employment. The October 2016 VA psychological examination report shows that the Veteran reported that he stopped working at the manufacturing job in 2004 because he retired, not due to limitations of the service-connected disabilities. In addition to this full-time employment, the Veteran reported that he owned and operated a military surplus business for 15 years. While the Veteran reported during the October 2016 VA examination that he was finding it harder to initiate and complete tasks, and has reported some problems with feeling tired due to sleep impairment associated with PTSD, sleep apnea, and back pain, recent treatment notes show that the Veteran evidenced intact attention, concentration, and recent and remote memory. (Continued on the next page)   Furthermore, despite symptoms and functional impairment associated with PTSD, he has generally been noted to have a good mood, the Veteran endorsed a fair level of energy and concentration, denied feelings of worthlessness or hopelessness, and endorsed good memory and organizational skills. The Veteran reported that he remains active without any exertional symptoms despite the service-connected sleep apnea, low back disability, and LLE radiculopathy. The Veteran reported that he lives on a farm and takes care of all of the animals, manages his activities of daily living without difficulty, and has very good exercise capacity, endorsing the ability to walk distances carrying things without exercise intolerance. The Veteran also reported that he has a firearms dealer license and that he has been selling firearms at local gun shows, and he endorsed keeping himself busy building a cabin on his property. See October 2016 VA examination report; July 2019, December 2019, February 2020, May 2020 VA treatment records. Overall, the Veteran’s reported level of activity includes reports of good exercise tolerance, taking care of all the animals on his farm, building a cabin on his property, and engaging in self-employment dealing firearms. These activities and levels of focus and engagement, in the context of the Veteran’s past work history and skills that include self-employment, suggest the Veteran maintains the concentration and persistence necessary to attend to and complete tasks, the ability to engage with people on an occasional basis, and the ability to engage in a mild to moderate level of physical activity, despite the functional impairment and limitations associated with the service-connected disabilities. For these reasons, the evidence of record shows that the Veteran was not rendered unable to obtain or maintain substantially gainful employment by virtue of the service-connected disabilities; therefore, the appeal for TDIU must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Moore, Shanna 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.