Citation Nr: 21025042 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 11-10 104 DATE: April 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT 1. From November 2011 to March 2020, the Veteran was able to maintain substantially gainful employment. 2. The preponderance of the competent and credible evidence of record indicates that the service-connected disabilities do not preclude the Veteran from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to August 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from June 2009 and April 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In March 2009, the Veteran appeared at a hearing before a Veterans Law Judge. A copy of the hearing transcript is of record. In May 2014, July 2017, September 2018, November 2019, and August 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 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 make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. Substantially gainful employment is that employment which is ordinarily followed by the nondisabled 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 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment, where the earned annual income does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). TDIU may be assigned, if the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one service-connected disability it is ratable at 60 percent or more; or if there are two or more service-connected disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more.  38 C.F.R. § 4.16 (a). For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: 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); multiple injuries incurred in action; or multiple disabilities incurred as prisoner of war. A claim for a total disability rating based upon individual unemployability, presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31 (1994). 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 nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The fact that a Veteran is unemployed or has difficulty finding employment is not enough, as a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service-connected for posttraumatic stress disorder (PTSD); migraine headaches associated with PTSD; diabetes mellitus; a left leg shrapnel injury; tinnitus; bilateral hearing loss; and erectile dysfunction. The combined service-connected disability rating is 70 percent, effective February 11, 2020, and 80 percent as of March 19, 2020. Therefore, the Veteran meets the schedular criteria for consideration of the assignment of TDIU effective February 11, 2020. The Board’s consideration turns to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. The Board finds that the evidence of record does not indicate that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities, alone or in combination. The Veteran contends that he is only marginally employed as a school bus driver due, in part, to service-connected PTSD. The evidence of record shows the Veteran completed high school in 1963 and attended six months of college but did not obtain a degree. The evidence also shows that the Veteran last worked 25 hours per week as a school bus driver from November 2011 to March 2020, prior to coronavirus restrictions causing schools to close. The Veteran has stated that his employer lost the contract they had with the school system as a result of coronavirus restrictions and he has not gone back to work since. The Veteran also stated that he has not gone back to work since COVID because of a compromised immune system, and for fear of contracting the illness. Prior to being a bus driver, the Veteran worked as a janitor, lineman, splicer, construction manager, and as an outside manager with a telephone company until 2003. The Veteran states that he had to quit the manager job as a result of migraine headaches. The Veteran also stated that he did not think he would return to work, due to fear of contracting COVID and after losing his bus driving license due to diabetes. The Board notes that in a VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability that was completed by his previous employer, the Pennsylvania Coach Lines, the Veteran is noted as having an income above the 2020 Poverty Threshold line. The employer did not indicate that the Veteran missed any time from work nor that any concessions were made due to the service-connected disabilities. In support of the claim, the Veteran has provided a private questionnaire response from a physician from June 2010. In that questionnaire, the Veteran was found to be unemployable as a result of a psychiatric disability. The Board finds the June 2010 private medical opinion to be incomplete, as the examiner did not provide an adequate rationale to support the opinion.  A mere conclusion without an underlying rationale is of no probative value.  Miller v. West, 11 Vet. App. 345 (1998).  The examiner simply stated that the Veteran was unemployable.  The examiner did not properly explain what led to the opinion and cited no supporting evidence. Thus, the Board finds the June 2010 private medical opinion is incomplete. During a February 2020 VA PTSD examination, the Veteran’s psychiatric disability was found to result in occupational and social impairment with reduced reliability and productivity. During the examination, the examiner stated that the Veteran reported irritability in stressful situations. The Veteran also stated he preferred not to interact with a lot of people and avoided people at work that he did not like. Difficulty with interpersonal relationships, irritability, and difficulty with stressful situations were found to impair occupational and employment activities. During a March 2020 VA headache examination, the examiner stated that the Veteran experienced 15 to 20 migraines per month with nausea and sensitivity to light and sound. The examiner stated that the headaches were debilitating for the Veteran and they would prevent him from being able to concentrate or carry out duties required for work. During VA PTSD examination in October 2020, the Veteran’s psychiatric disability was found to result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Based on the Veteran’s statements, the examiner acknowledged that the Veteran stopped working with the telephone company years ago due to migraines and not due to PTSD and that the Veteran stopped working as a bus driver in March 2020 due to COVID shutting down the schools and then lost his bus driver’s license due to advancing diabetes and not due to PTSD. The Veteran reported that he greatly enjoyed his work and there was no work impairment due to PTSD. The examiner stated that the Veteran preferred to interact with the kids and not with the adults and he would do better in work settings in which regular social demands and interactions with adults were minimized. While the Veteran reports some occasional depression, anxiety, daily sleep disturbance, and mild forgetfulness, those did not significantly negatively impact part-timework functioning. The Veteran worked daily as a bus driver when school was in session and there is no evidence of any type of documented or reported work impairment due to mental disorder. During a December 2020 VA hearing loss examination, bilateral hearing loss and tinnitus were found to interfere with the Veteran’s ability to sleep, have conversations, and talk on the phone. The examiner stated that the Veteran had difficulty interacting with people, even with the use of hearing aids. The examiner stated that the Veteran would struggle in an occupational environment immensely due to masks, communication with coworkers or customers, answering phone calls, and participating in meetings. The Veteran would misinterpret what people were saying and not be able to get work done in a timely manner due to fatigue. During a January 2021 VA diabetes mellitus, lower leg, headache, male reproductive organ, and muscle injury examination, the service-connected disabilities were found to have no impact on the Veteran’s ability to work. From November 2011 to March 2020, the evidence shows that Veteran was employed as a bus driver. A VA Form 21-4192 was completed by the Veteran's most recent employer, Pennsylvania Coach Lines. That submission showed that the Veteran was employed as a school bus driver from November 2011 to March 2020. The Veteran worked for 25 hours a week and earned $25,046.65 in wages in the preceding 12 months. There is no indication from the employer that the Veteran missed any time in the preceding 12 months as a result of disability. The Veteran asserts that his employment as a school bus driver does not constitute substantially gainful employment. In this regard, the Board notes that Veteran’s income as a school bus driver is in excess of the national poverty line defined by the United States Census Bureau, and therefore is not considered marginal employment. The Board acknowledges and has considered that during a VA headache examination in March 2020, the examiner stated that the Veteran’s headaches were debilitating and would prevent the Veteran from being able to concentrate or carry out duties required for work. The Board finds that the VA examiner’s ultimate finding is incongruous with the evidence presented. The Veteran was gainfully employed for the nine years prior to and at the time of the March 2020 headache examination. The Board also notes that the most recent VA headache examination, in January 2021, showed that the Veteran’s headache condition had no impact on the ability to work. The fact that the Veteran was gainfully employed earning income above the poverty threshold from November 2011 to March 2020 serves as highly persuasive evidence he was capable of performing the physical and mental acts required for employment for which he is qualified during that timeframe. As the Veteran was employed in substantially gainful occupation, he is accordingly not unemployable due to service-connected disabilities from November 2011 to March 2020. After March 2020, after reviewing the entire record, the Board concludes that entitlement to TDIU is not warranted. The most probative evidence of record shows that, solely considering the service-connected disabilities, the Veteran is more likely able to obtain gainful employment, if that employment does not require the continued use of masking of the face while attempting to communicate. The Board finds that the evidence does not show anything out of the ordinary, or not average, in the Veteran’s situation as a result of the service-connected disabilities. While the Veteran may be unable to perform certain types of work, the weight of the probative evidence of record does not indicate that he is unable to perform some type of substantially gainful employment in a sedentary setting, such as office work. The Board notes that evidence shows that the Veteran no longer has a commercial drivers license as a result of service-connected diabetes, but that does not mean that all forms of employment are precluded. Overall, in terms of service-connected disabilities, the Veteran has difficulty communicating as a result of his bilateral hearing loss and tinnitus. Otherwise, the service-connected disabilities have not been shown to cause significant occupational impairment that would result in unemployability as of the time the Veteran stopped substantially gainful employment. The loss of his employment was shown to be due to his employer losing a contract due to coronavirus restrictions. Most VA examinations indicate that the service-connected disabilities only have mild to no effects on the Veteran’s ability to work, and particularly those examinations after the Veteran stopped employment. Overall, the record strongly suggests that the service-connected disabilities, alone, do not preclude the Veteran from work that does not require the wearing of a mask. In arriving at this decision, the Board has considered the Veteran’s background. Considering the overall disability picture, and the Veteran’s history of employment, the Board finds that the preponderance of the evidence shows that the Veteran is not unemployable solely due to service-connected disabilities. The Board finds that the record does not show that the service-connected disabilities have prevented the Veteran from obtaining or maintaining employment at any time during the appeal period. In making that determination, the Board is not refuting the Veteran’s noted physical limitations or his own contentions that the service-connected disabilities affect the ability to work. However, the rating schedule adequately contemplates the symptoms at issue. The Board recognizes that the Veteran has been awarded SSA benefits due to his many disabilities. The Board notes that SSA decisions are not binding on or controlling on VA. Collier v. Derwinski, 1 Vet. App. 413 (1991) (while SSA’s factual determinations are probative, their ultimate conclusions are neither binding nor controlling upon VA). The Board further notes that not only are SSA criteria for disability benefits different legally, but they also may consider disabilities that have not been service-connected by the VA. VA can only consider whether service-connected disabilities alone are of sufficient severity to produce unemployability. The Veteran has not provided any medical or vocational expert evidence which supports a finding of an inability to maintain substantially gainful employment as a result of the service-connected disabilities for the period in which the Veteran meets the schedular requirements for TDIU. While the Veteran is shown to not currently be working, it is not shown that he is precluded from working by the service-connected disabilities. The preponderance of the evidence subsequent to the Veteran stopping work is against a finding that the service-connected disabilities preclude employment. While there was a finding that migraines would preclude employment in March 2020, the Veteran was employed in substantially gainful employment at that time, and the evidence of record does not otherwise indicate a frequency of migraines that would preclude substantially gainful occupation, or combine with the other service-connected disabilities to preclude substantially gainful employment. The other examinations found that the Veteran would be capable of employment. The Board is appreciative of the Veteran's honorable service to our Country. However, the Board finds that the preponderance of the evidence weighs against the claim of entitlement to TDIU. Accordingly, because the preponderance of the evidence is against the claim, the claim for TDIU must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.