Citation Nr: 21023083 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 11-24 018 DATE: April 20, 2021 ORDER Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) prior to April 1, 2010 and from May 1, 2011 to December 2, 2011 is denied. Entitlement to a TDIU from April 1, 2010 to May 1, 2011 is granted. FINDING OF FACT 1. Prior to April 1, 2010, the Veteran was not rendered unable to gain or maintain substantially gainful employment as a result of a single service-connected disability. 2. From April 1, 2010 to May 1, 2011, the Veteran was rendered unable to gain or maintain substantially gainful employment as a result of his service-connected disabilities. 3. From May 1, 2011 to December 2, 2011, the Veteran was not rendered unable to gain or maintain substantially gainful employment as a result of a single service-connected disability. CONCLUSION OF LAW 1. The criteria for TDIU prior to April 1, 2010 and from May 1, 2011 to December 2, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. 2. The criteria for TDIU from April 1, 2010 to May 1, 2011 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Navy from December 1986 to May 1990. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Subsequently, the Veteran appealed the decision and the claim was denied by the Board in a December 2018 decision. Following, the Veteran appealed the Board’s December 2018 decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In August 2019, the parties filed a Joint Motion for Partial Remand (JMPR) asking CAVC to vacate the Board’s decision in part and remand the matter for action consistent with the terms of the JMPR, which included consideration of the TDIU claim for the period of January 2010 forward. See August 2019 Joint Motion for Partial Remand. In an order dated August 20, 2019, CAVC granted the JMPR and remanded this matter to the Board “for action consistent with the terms of the joint motion.” See August 2019 CAVC Order. Following return to the Board from CAVC, the claim was remanded in a February 2020 decision, in part for a VA examination that addressed the impact of the Veteran’s service-connected disabilities on his ability to gain and maintain employment. The opinions were obtained in October 2020, and the Veteran was requested to provide additional employment information in February 2020 and his Social Security Administration (SSA) records were obtained in March 2020. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that, during the pendency of the appeal, in a November 2020 rating decision, TDIU was granted effective December 2, 2011. Thus, the issue of entitlement to a TDIU from December 2, 2011 forward is no longer on appeal. However, as the award of TDIU did not span the entire period on appeal, the issue is still on appeal before the Board. Harper v. Wilkie, 30 Vet. App. 356, 359–62 (2018). 1. Entitlement to a TDIU prior to December 2, 2011. 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). 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 issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The phrase “unable to secure and follow a substantially gainful occupation” has been interpreted to consist of two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 72–74 (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. at 73. With respect to the noneconomic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (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 required; and, (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 73–74. As an initial matter, the Board notes that the Veteran’s SSA records reflect that the Veteran reported that he became unemployable on December 15, 2009, prior to which he was employed. The Veteran further reported that from May 2011 through to 2011 he was employed full-time as an employment counselor with VA, earning $52,000 a year. As the SSA records clearly establish that the Veteran was employed prior to December 15, 2009 and from May 2011 to December 2011, and there is no evidence that the employment was either not gainful or was protected, entitlement to a TDIU on a schedular or extraschedular basis is not warranted in this case. With respect to the period from December 15, 2009 to April 1, 2010, the Veteran was in receipt of a combined schedular 100 percent rating as well as a single 100 percent rating for his psychiatric disability. 38 C.F.R. § 4.29. The receipt of a combined 100 percent rating does not render the issue of entitlement to a TDIU moot where the award of a TDIU based on a single disability may result in the Veteran being eligible for SMC. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the Board must still consider whether TDIU may be awarded for the purposes of establishing entitlement to SMC. However, in doing so the Board may not consider the Veteran’s psychiatric disability, which is rated at 100 percent during this period. 38 U.S.C. § 1114(s). From December 15, 2009 to April 1, 2010, there is no evidence that the Veteran was unemployable due to his other service-connected disabilities individually. Indeed, the Veteran himself as well as the medical evidence of record consistently reflects that the Veteran’s posttraumatic stress disorder (PTSD) is the primary reason for his unemployability. The Veteran has repeatedly stated that he is unable to work due to the fact that his PTSD causes him to get into conflicts with coworkers. During a February 2010 VA examination the Veteran also specifically stated that he had been unemployed for a little less than one year due to his psychiatric disability. As such, an award of TDIU based on a single service-connected disability is not warranted from December 15, 2009 to April 1, 2010. Bradley, 22 Vet. App. 280. Finally, from April 1, 2010 to May 2011, the Veteran meets the threshold requirements for a TDIU, as the Veteran had a single service-connected disability rated at 40 percent or more and a combined rating of 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Further, the Veteran has generally contended that he was unemployed during this period due to his service-connected disabilities. During a February 2010 VA examination the Veteran reported having been unemployed for less than a year due to mental health issues. The Veteran reiterated this statement during an October 2020 psychiatric examination, stating that from approximately January 2010 to May 2011 or June 2011 he was unemployed and sporadically homeless. SSA records also reflect that the Veteran was unemployed during this period, and further include statements from the Veteran that his psychiatric and orthopedic disabilities severely limited his ability to work. In weighing the lay and medical evidence of record, as well as the Veteran’s education and work history, the Board finds during the period from April 1, 2010 to May 2011 that it is unlikely that the Veteran was able to obtain or maintain substantially gainful employment. As such, a TDIU from April 1, 2010 to May 1, 2011 is granted. In sum, the evidence of record reflects that the Veteran was rendered unable to obtain or maintain substantially gainful employment from April 1, 2010 to May 2011, and therefore a TDIU during this period is warranted. However, the evidence of record shows that prior to December 15, 2009 and from May 2011 through November 2011, the Veteran was gainfully employed. Further, from December 15, 2009 to April 1, 2010 the evidence does not reflect that the Veteran was rendered unemployable due to a single service-connected disability other than the PTSD. Indeed, the majority of the evidence of record reflects that the Veteran’s PTSD is the primary disability underlying the Veteran’s inability to obtain employment. Therefore, a TDIU prior to April 1, 2010 and from May 1, 2011 to December 2, 2011 is not warranted. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.