Citation Nr: 21024148 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-32 767 DATE: April 22, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s service-connected disability renders her unable to obtain or retain substantially gainful employment. CONCLUSION OF LAW The criteria for an award of a TDIU due to service-connected disability, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1993 to August 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. This matter was previously remanded by the Board in February 2020 and in January 2021 for additional development. In January 2021, the Board remanded the matter of extraschedular TDIU for referral as specified under 38 C.F.R. § 4.16(b). The case was referred in February 2021; therefore, the Board finds that there has been substantial compliance with the Board’s January 2021 remand. Stegall v. West, 11 Vet. App. 268 (1998). In February 2021, the Director of VA’s Compensation Service (Director) found that TDIU on an extraschedular basis was not warranted, and the claim has now properly returned to the Board. Entitlement to a TDIU Under the applicable criteria, a TDIU 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 service-connected disabilities, provided that one of those disabilities is ratable 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. § 4.16. For the purpose of meeting these schedular criteria, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. 38 C.F.R. § 4.16(a). The Veteran is service-connected for chronic cystitis to include urinary tract infections, rated as 30 percent disabling from March 3, 2010. The Veteran’s claim for an increased rating for chronic cystitis, of which the TDIU claim is part and parcel, was received on March 3, 2010, and therefore the appeal period under consideration starts from March 3, 2010. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Thus, the Veteran does not meet the schedular requirements for assignment of a TDIU under 38 C.F.R. § 4.16(b) at any point during the appeal period. Nonetheless, it is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth above. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director’s decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The Board has done so, the Director has denied TDIU, and the issue may therefore now be adjudicated by the Board. In doing so, the Board conducts de novo review and must consider the Director’s decision to be “in essence the de facto decision of the agency of original jurisdiction” and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, 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 disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice, 22 Vet. App. at 452. When deciding a TDIU claim, the Board “must take into account the individual veteran’s education, training, and work history.” Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), “marginal employment shall not be considered substantially gainful employment.” Other than by distinguishing the concept of “substantially gainful employment” from “marginal employment” which “includes but is not limited to employment in a protected environment such as a family business or sheltered workshop” 38 C.F.R. § 4.16, the regulation explaining the criteria for TDIU, does not define “substantially gainful employment.” While a TDIU may be granted if employment is marginal, part-time positions are not de facto marginal employment. Whether part-time employment is marginal is determined by whether a veteran’s earned annual income does not exceed the poverty threshold for one person, or on a facts-found basis. The United States Court of Appeals for Veterans Claims has recently held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As noted above, in January 2021, the Board remanded the matter of extraschedular TDIU for referral to the Director, Compensation Service as specified under 38 C.F.R. § 4.16(b). In a February 2021 opinion, the Director determined that the evidence does not indicate that the Veteran’s service-connected chronic cystitis prevents gainful employment. The Board concurs. An October 2010 VA examination report shows that the Veteran was not employed but was not retired, and had not worked in 5-10 years. The Veteran reported that she quit her pervious employment due to her chronic cystitis. A September 2012 vocational rehabilitation and employment counseling report shows the Veteran reported the need to take time off from work when she passes kidney stones, frequent urination issues and the need to take frequent breaks each hour. She also reported frequent UTIs and extreme pain and discomfort and that she is limited in her ability to focus and/or concentrate due to pain and also limited in her work environment because she requires accommodations of access to the restroom with frequent breaks as needed. In the January 2013 Notice of Disagreement, the Veteran reported that she self-catheterizes every time she needs to urinate, four to six times daily. She reported that she works as a middle school teacher on a part-time basis because the schedule allows her to self-catheterize before she leaves for work and right when she returns from work. She further reported that when there are weekly staff meetings, parent meetings or special programs, she stays late and, as a result, must bring a whole set of items to self-catheterize in a sanitary manner. In a May 2015 VA examination report, the Veteran reported working 20 hours per week, that her job was 8 minutes from home and that she goes home to self-catheterize. The Veteran stated that she did not know how she would work full-time and the examiner remarked that the Veteran is significantly limited on where she feels comfortable self-catheterizing and is quite stringent on sterile procedure. The examiner opined that the Veteran is able to perform light work, with some physical limitations of exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently and/or a negligible amount of force constantly to move objects. In an August 2015 Statement in Support of Claim, the Veteran reported that her self-catheterizing, while necessary, greatly impacts her ability to work. In March 2020, the Veteran submitted “buddy” statements from her husband, her parents and some of her children. The statements describe the impacts of the Veteran’s service-connected chronic cystitis, significantly noting frequent bladder and urinary tract infections, kidney stones, and numerous doctor, emergency department and hospital visits due to her service-connected disability. In January 2020, the Veteran and her husband provided testimony before the undersigned VLJ on the nature and severity of her chronic cystitis. The Veteran testified that she self-catheterizes about six times a day and takes a daily antibiotic to prevent infections, as well as a medication to stop bladder contractions. She testified that she does not experience leakage or use absorbent material, but the anti-contraction medication causes her urine to turn dark orange which stains her underwear, which she changes one to two times a day. The Veteran testified that she goes to the doctor at least once every three months. She also testified that she experiences kidney stones and her chronic cystitis disability affects her ability to pass the stones and that because of the antibiotic she takes, she struggles with yeast infections. The Veteran and her husband both testified to the difficulties she faces if her catheter supply arrives late, remembering to bring catheters when she travels, and finding sanitary restrooms in which to self-catheterize. A review of the record reflects that the Veteran earned a bachelor’s degree business management and that from approximately 2011 or 2012, the Veteran works part-time as a middle school teacher. See December 2017 Vocational Rehabilitation and Employment (VRE) Closure Statement and September 2012 VRE Counseling Record Narrative Report. The record also shows that the Veteran founded, and now leads, a women’s nonprofit organization with almost 1,500 participants. See March 2020 Buddy Statement. In the December 2017 VRE closure statement, the Veteran’s rehabilitation counselor noted the Veteran was currently employment as a Catholic school teacher and remarked that the Veteran does not have pain or infections as frequently as when she started the program, that her job does not aggravate her disability as she is close to restrooms at all times, that the job is sedentary, and that the Veteran is able to work part-time without any difficulty. In May 2020, a VA examiner opined that the Veteran is able to perform light work, while restricted to exerting up to 20 lbs. of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. The examination report shows that the Veteran lost 0-1 weeks of work time in the prior 12 months and that the Veteran is working part-time and goes home to self-catheterize each time. The functional impact of her chronic cystitis was noted as causing the Veteran to self-catheterize several times per day. The examiner remarked that the Veteran is quite stringent on sterile procedure and is significantly limited on where she feels comfortable self-catheterizing. After reviewing the record, the Board finds that the evidence does not support a finding of unemployability. Pursuant to the Board’s February 2020 remand directive, VA mailed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability to the Veteran in April 2020. The Board notes that the VA Form 21-8940 is designed to elicit information including dates of employment, type of work, reason for leaving employment, education and training, and the disabilities the Veteran believes prevents her employment. To date, however, the Veteran has not returned the form. A September 2012 VRE counseling report notes that the Veteran had been successfully working in the teaching field for at least one year and that the Veteran was informed by her place of employment that if she obtained a bachelor’s degree in any program, she could move to work full time. The vocational goal noted in the report is the completion of training to pursue a full-time teaching position. Although the September 2012 VRE report shows the Veteran’s then-current salary, there is no indication of when, exactly, the Veteran started that job, or if she had prior employment during the appeal period. The Veteran did not otherwise provide any salary information in a VA Form 21-8940 or any other statement. Therefore, it is not possible for the Board to determine whether her employment is marginal. Importantly, she has not asserted her employment is marginal. In any event, there is no probative evidence that her service-connected disability precludes substantially gainful employment. Indeed, the record indicates that she is currently employed, even if part-time, and that reasonable accommodations have been provided to her. Her part-time employment allows the Veteran to self-catheterize in a sterile manner in order to avoid the urinary tract and bladder infections that result from unsanitary self-catheterization circumstances. The Board truly sympathizes with the Veteran and acknowledges the daily hardships she must face because of her service-connected chronic cystitis. It is clear from the record that the Veteran’s chronic cystitis disability would preclude the Veteran from working in any type of position requiring medium to heavy physical labor. However, the Veteran does work part-time as a middle school teacher, and earned a business management undergraduate degree during her vocational rehabilitation training that would likely allow her to obtain an entry level position in an office-like setting. Additionally, while the May 2020 VA examiner noted some physical limitations, the examiner did not find the Veteran is precluded from employability. The examiner added that the Veteran is quite stringent on sterile procedure and is significantly limited on where she feels comfortable self-catheterizing. While the Board recognizes the Veteran’s practices and preferences, such does not demonstrate that she is unable to obtain and maintain substantially gainful employment because of her service-connected disability. In sum, while the Veteran does experience difficulties, the evidence does not show that the Veteran is unemployable due to her service-connected chronic cystitis. In light of this finding, the Board concludes that an extraschedular TDIU is not warranted. The preponderance of the evidence is against the claim for a TDIU. As such, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   Therefore, entitlement to a TDIU is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.