Citation Nr: 21023758 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-16 690A DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is denied. FINDING OF FACT The preponderance of the evidence of record does not show that the Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to March 1973. In December 2014, the Veteran died. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), denying a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). In August 2010, the Veteran timely submitted a notice of disagreement (NOD) and in May 2012 the RO issued a statement of the case (SOC). In June 2012, the Veteran perfected a substantive appeal. In October 2019, a RO granted the appellant’s request for substitution as the claimant for the issue on appeal. In a November 2020 decision, the Board remanded this issue for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU due to a service-connected disability is denied. The appellant is seeking entitlement to a TDIU. Specifically, she contends that the Veteran was unable to obtain and maintain gainful employment due to his service-connected PTSD. See March 2021 Appellate Br. As a preliminary matter, given that the Veteran reported that he retired due to his PTSD, as noted above, in November 2020, the Board remanded the issue of a TDIU for further development. The appellant and her representative were sent written correspondence seeking information regarding the Veteran’s income during the period on appeal from January 2012 until the time of the Veteran’s death. See December 2020 Subsequent Development Letter. However, the appellant has not provided the requested information. The Board notes that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). If an appellant wants help, she cannot passively wait for it in those circumstances where her own actions are essential in obtaining evidence. Id. As the requested information has not been received, the Board will proceed with adjudication for the appellant’s TDIU claim with the evidence of record. Total disability will be considered to exist 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. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. If the schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Here, for the period on appeal, the Veteran is service-connected for PTSD with a 70 percent disability rating. As such, he met the requirements for a TDIU during the entire period on appeal. At issue in this case is therefore whether the Veteran was able to obtain and maintain substantially gainful employment. Substantially gainful employment is defined as work which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Substantially gainful employment does not include marginal employment, which is generally 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. Marginal employment may also be held to exist on a factual basis, including but not limited to employment in a protected environment such as family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a); see also Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016) (“[T]he only logical reading of the regulation compels the conclusion that a veteran might be found unable to secure or follow a substantially gainful occupation when the evidence demonstrates that he or she cannot secure or follow an occupation capable of producing income that is more than marginal-i.e., with income that exceeds the amount published by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.”). In Faust v. West, 13 Vet. App. 342 (2000), the 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 the Veteran actually works and without regard to the veteran’s earned annual income. More recently, the Court clarified that the establishment of a TDIU has both an economic component and a non-economic component. 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. The non-economic component includes consideration of: 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. The Board acknowledges that the Secretary, as of this decision, has not defined “protected environment.” Therefore, it is at the Board’s discretion on a case-by-case basis based on the information and evidence of record. The Board notes, however, that Merriam-Webster defines “protect” primarily as “to cover or shield from exposure, injury, damage, or destruction”, see https://www.merriam-webster.com/dictionary/protect, and defines “environment” primarily as “the circumstances, objects, or conditions by which one is surrounded”, see https://www.merriam-webster.com/dictionary/environment. Turning to the evidence of record, the evidence indicates that the Veteran last worked in January 2012. He asserted that he retired due to inappropriate behavior at work and an inability to adapt to the stress. He also stated that his PTSD interfered with his normal life and day to day activities. See June 2012 VA Form 9. A review of the record also reveals that December 2009 VA treatment records indicate that the Veteran was having problems with his relationships with his supervisor and January 2010 VA treatment records show that the Veteran indicated that his boss is difficult to please so he might retire the next year and go back to school. His anger, however, was under better control. In an August 2010 VA treatment record the Veteran reported that he “hates” work because he had to deal with others, namely patients. He reported that he doesn’t have the patience for dealing with people. He isolated himself and enjoyed this part of his day the most. In a May 2010 VA examination, the Veteran reported a good relationship with his spouse although separated. He was clean and neatly groomed, cooperative with good attention, orientation, insight, and judgment. No panic attacks were noted, and his remote memory was normal. His did report having trouble staying focused. The Veteran reported being employed for nearly 20 years, with 4 weeks of lost time from work due to leaving angry. In his August 2010 NOD, the Veteran reported that the May 2010 VA examiner did not notate his reports of panic attacks and inappropriate behaviour that caused him to leave work. His employer understood his PTSD and worked with him. He also reported violence which is part of his separation from his wife and difficulty adapting to stressful situations at work. In a November 2013 VA treatment record, the Veteran was encouraged and agreed to consider volunteer work. In a September 2014 VA treatment record, the Veteran was noted to be working parttime. Following a review of the record in its entirety and the applicable legal criteria, the Board finds that the Veteran has not been shown to be unable to secure and maintain substantially gainful employment. Regarding whether the Veteran’s employments during the appeal period were gainful or in a protective environment, as previously discussed, the appellant has not provided any further information regarding the Veteran’s income, education history, or training for the period on appeal. Based on the unavailability of a more detailed accounting of the Veteran’s income during the period on appeal, the Board cannot confirm whether the Veteran’s salary was below the poverty threshold established by the U.S. Department of Commerce, Bureau of the Census. Furthermore, regarding the Veteran’s employment prior to January 2012, although the Veteran noted that his employer understood his PTSD, there is no indication in the record that the Veteran’s employment was “protected” such that he was working, for example, for a family business or sheltered workshop. In addition, although the Veteran has asserted that his left his employment due to his PTSD symptoms, the record indicates that after his retirement in January 2012, the Veteran was encouraged to participate in volunteer work and that the Veteran had worked parttime. The Veteran did not express dissatisfaction or difficulty with his parttime position. Therefore, although the Veteran’s service-connected disability did cause him significant occupational impairment, as reflected by his 70 percent rating for PTSD, he had nonetheless been able to undertake secure and maintain employment throughout the period on appeal. The Board acknowledges that the appellant is, and the Veteran was, competent to report the symptoms the Veteran experienced from his service-connected disability and that such statements are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, they are not competent to identify a specific level of disability according to the appropriate Diagnostic Code or to assess whether the symptoms preclude employment. Such competent evidence concerning the nature and extent of the Veteran’s service-connected disability, and in particular his ability to work, has been provided by medical professionals who have examined him throughout the appeal period. See, e.g. May 2010 VA Examination; see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Accordingly, the Board affords significant probative weight to the medical evidence of record. While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability picture, the evidence of record does not support the appellant’s claim that the Veteran’s service-connected disability precluded him from securing and maintaining substantially gainful employment. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 4 9, 55 (1991). Accordingly, the claim for entitlement to a TDIU must be denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.