Citation Nr: 21025776 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-49 753 DATE: April 29, 2021 ORDER Entitlement to total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude her from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for the assignment of a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 2005 to September 2014 and from December 2014 to March 2015. This matter is before the Board of Veterans Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), granting service connection for PTSD and assigning a 30 percent disability rating from March 2015. The Veteran timely filed a notice of disagreement (NOD) in May 2016, and in November 2017, the RO granted a 70 percent disability rating for PTSD, effective October 2017. In August 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the electronic claims file. In a December 2019 Board decision, the Veteran was awarded a 70 percent disability rating from March 2015. TDIU Laws Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 as totally disabled. In evaluating entitlement to a TDIU, the central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The determination of unemployability is to be made by a VA adjudicator and is not a medical question. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Consideration may be given to the Veteran's education, special training and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); Faust v. West, 13 Vet. App. 342 (2000). A veteran need not show 100 percent unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to total disability due to individual unemployability (TDIU) On the Veteran’s September 2017 VA Form 9 requesting an increased disability rating for posttraumatic stress disorder (PTSD), the Veteran indicated that she resigned her employment due to discomfort with her peers in the workplace. The Board determined that the issue of a TDIU was reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue on appeal was remanded by the Board in June 2020 to allow the Veteran the opportunity to submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Upon review of the evidence, the Board does not find that the Veteran is entitled to a TDIU. The Veteran is service-connected for posttraumatic stress disorder at 70 percent disabling, left and right wrist injuries and patellofemoral pain syndrome at 10 percent disabling each, allergic rhinitis, residual surgical scar, and migraine headaches at 0 percent each. Her combined disability evaluation is 80 percent from March 21, 2015. Accordingly, the Veteran meets the requirements for consideration of a schedular TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has been provided with appropriate notice and development requests specific to a TDIU claim. Letters from VA dated July and August 2020 informed the Veteran of her potential eligibility for a TDIU and requested two actions, that she execute medical release forms or provide any private treatment records not already of record, and that she complete a VA Form 21-8940: Veteran's Application for Increased Compensation Based on Unemployability. The Veteran has not completed and returned the VA Forms 21-8940 or provided additional documents or completed medical release forms to date. Vocational Rehabilitation (VR) documents indicate that the Veteran was receiving services from November 2015 to approximately July 2020. A VR Counseling statement indicates that as of November 2015, the Veteran considered herself a full-time student. The Veteran began classes in January 2016 working towards a dual Masters’ degree and continued her coursework until July 2020 after she requested a break and then closure of her case until her personal issues stabilized. The Veteran’s transcripts indicate a grade point average of 3.86 out of 4.0. A letter from VR dated July 31, 2020 indicates that the Veteran voluntarily withdrew from the program at that time. The Veteran underwent VA examinations for PTSD in February 2016, May 2017, and October 2017 as well as a DRO hearing in October 2016. During her October 2016 DRO hearing, the Veteran was working for a company in a cubicle environment writing technical instructions for engine and aircraft maintenance and repair. She described needing to work in a cubicle to avoid interaction with colleagues, road rage incidents and occasional snapping at her husband, child, and her immediate supervisor. In VA examinations prior and subsequent to the DRO hearing, the examiners both concluded that the Veteran had mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. In the October 2017 examination; however, the Veteran reported worsening symptoms and the VA examiner noted intrusive memories, panic attacks, passive suicidal ideation and other symptoms affecting her ability to work. The examiner concluded that the Veteran had impairment with deficiencies in most areas of work, school, family relations, judgment, thinking and/or mood. During the Board hearing in August 2019, the Veteran testified that it was difficult for her to stay in a job and that she had not had steady employment since she left the military. She was pursuing an additional education in IT because she does not have to interact much with people. She did not have any friends. She was having a difficult time focusing on her job at the Department of the Navy while working in close proximity with other employees but intended to continue her employment while applying for other positions. VA treatment records reflect that in 2019, the Veteran worked for 4 months with the Department of the Navy before being terminated for reasons that the Veteran felt were unrelated to her performance. In December 2019, the Veteran underwent a VA PTSD disability examination. She reported that she was distant from her husband and 2 children emotionally and had allowed her husband to take over most of the parenting duties. She reported employment as a program support assistant with the Providence Rhode Island VA from October 2018 to June 2019 that she left for a better position with the Department of the Navy. She mentioned frequent suicidal ideation with 2 near suicide attempts in the last year including trying to figure out how to use her husband’s gun. The Veteran denied significant changes in her symptoms since her last evaluation in 2017. The examiner concluded that the Veteran’s PTSD symptoms continued to be severe and contribute to a moderate to severe degree of impairment in social and occupational functioning. In July 2020 VA treatment records reflect that the Veteran was hospitalized briefly for swallowing an overdose of prescription medication after a period of increased psychosocial stressors associated with protracted divorce proceedings, stresses associated with sharing custody of two young children as well as a relocation to a home built in the 1800s that needed renovation and repairs. In October 2020 through February 2021 the treatment records reflect that the Veteran was feeling better, her divorce had been finalized, she was doing better with managing work-related demands and stress stemming from work, was attending physical therapy after injuries from a December 2020 motor vehicle accident, and was busy managing childcare responsibilities 3 to 4 days a week. The Veteran was also teleworking full time in her VA position. Although her promotion was being delayed for not meeting production targets, the Veteran had retained her full-time position processing VA disability claims for over a year. (Continued on the next page)   The Board notes that the Veteran has reported distractibility and irritability working in close proximity to co-workers and that a promotion was delayed. See Van Hoose, 4 Vet. App. at 363. However, the Veteran has not specifically asserted that she is unable to perform any gainful work because of the severity of her service-connected PTSD disability or combination of all of her service-connected disabilities. Instead, a review of the medical evidence of record and the Veteran's testimony during the October 2016 DRO hearing and August 2019 Board hearing shows that the Veteran continues to be employed in administrative and IT roles with the noted difficulties in interacting with co-workers. However, the evidence of record does not suggest that the Veteran is unemployable due to her service-connected disabilities on appeal. Moreover, while the Veteran has indicated that her service-connected disabilities affect her employment, she has not asserted that she is unemployable as a result of them. The record reflects that the Veteran has been employed aside from a brief period of unemployment throughout the period on appeal. The Board finds that based on the evidence of record, TDIU is not warranted as the Veteran is currently working. Further, there is no indication that her employment is only "marginal" employment. Consequently, there is no evidence demonstrating that the Veteran is unable to secure and/or follow substantially gainful occupation. 38 C.F.R. § 4.16. The preponderance of the evidence is against the claim for entitlement to a TDIU. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.