Citation Nr: 21025706 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-18 086 DATE: April 28, 2021 ORDER Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU) from January 1, 2016, to August 1, 2018, is denied. FINDING OF FACT The Veteran’s disabilities do not prevent the Veteran from maintaining gainful employment with respect to the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a total disability rating for compensation based upon individual unemployability (TDIU) have not been met. 38 U.S.C. § 501, 38 C.F.R. §§ 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1994 to March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In November 2019, the Veteran testified at a Board hearing. A transcript of the hearing has been associated with the Veteran's claims file. In November 2019, the case came before the Board. The Board awarded a 40 percent rating for the Veteran’s right wrist disability. The Board also found that the issue of TDIU was raised by the record. Accordingly, the Board remanded this issue to the RO for further development. In January 2021, the case returned to the Board. The Board recharacterized the issue on appeal based on the Veteran’s Board testimony and the employment information that she has provided thus far. The Board remanded the Veteran’s claim because the record was not currently clear as to whether the Veteran was gainfully employed or employed in an occupation earning no more than marginal income between January 1, 2016, and August 1, 2018. Accordingly, the Board requested the Veteran to provide the Board with a full explanation of all her employment since 2016, especially with respect to the period of January 1, 2016, to August 1, 2018. In January 2021, the RO sent the Veteran a request to provide further information regarding her work history. The Veteran has not provided the Board with the requested information. Therefore, the Board will proceed with a decision based on the evidence currently contained in the Veteran’s claims file. Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU) from January 1, 2016, to August 1, 2018. The Veteran contends that she is unable to work due to her service-connected disabilities with respect to the period on appeal. 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.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. 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 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). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is nonetheless unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). “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 (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Initially, the Board notes that the Veteran’s claim for TDIU was included with her claim for an increased rating for a right wrist disability. In July 2017, VA received a VA-Form 21-8940 from the Veteran. The Veteran indicated that she was unable to work due to her wrist and knees. The form indicated that the Veteran worked as a truck driver and was certified as an emergency medical technician and a certified nurse’s assistant. The form indicated that the Veteran worked as a truck driver from November 2011 until December 2015. The form indicates a period of unemployment while the Veteran was being trained as a certified nurse’s assistant. The form then shows that the Veteran began working as a certified nurse’s assistant from November 2016 until January 2017. In September 2020, VA sent the Veteran an additional VA-Form 21-8940 in order for her to report her full work history throughout the course of the appeal. The Board notes that the Veteran did not respond to this correspondence; however, the record reflects that the Veteran returned to work in 2018 and that she also owns her own company. In this case, the Board notes that the Veteran has met the schedular criteria for TDIU for the entirety of the appeal. See 38 C.F.R. § 4.16(a). The Veteran’s combined rating is 80 percent, and she is service connected for a right wrist disability, left knee disability, right knee disability, chronic bronchitis, left knee scar, and right wrist scar. As to the Veteran’s lay statements, the Board notes that the Veteran testified that she was able to continue her welding career when the company made an accomodation and assigned her an assistant. In addition, the Board notes that the Veteran reported that she is able to handle the managerial functions of owning her own business. Turning to the medical evidence at hand, the Board notes that the record reflects that the Veteran’s wrist disability and knee disabilities exhibit pain and have reduced range of motion. The Board further notes that the Veteran’s wrist disability has impacted her ability to manipulate tools and perform manual labor tasks. Lastly, the Board notes that the Veteran’s knees have impacted her ability to kneel, sit, squat, and walk. In sum, the Board finds that entitlement to TDIU is not warranted. The Board acknowledges that the record shows that her service-connected disabilities do cause some interference with employment. The Board further acknowledges that the record does show some periods of unemployment. However, the evidence of record also indicates that the Veteran is currently employed and that she has been able to consistently obtain and maintain full-time employment throughout the pendency of the appeal. Moreover, the record reflects that the Veteran can perform manual labor tasks in her career field with an assistant, and that she is able to perform the managerial and supervisory tasks necessary to own her own business. Thus, the Board finds that there is no persuasively probative evidence currently of record that demonstrates that the Veteran’s service-connected disabilities have prevented her from securing and following a substantially gainful occupation. Accordingly, the Board concludes that the most competent, credible, and probative evidence is against the claim, and that entitlement to a TDIU is not warranted. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.