Citation Nr: 21026238 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-29 392 DATE: April 30, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran’s service-connected disabilities, other than his PTSD, did not prevent him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had an initial period of active duty for training with the United States Army from April 2003 to September 2003; he thereafter served on active duty with the United States Army from November 2003 to April 2005, and from February 2006 to March 2007. The Veteran served in Iraq, and for his meritorious service, he was awarded (among other decorations) the Army Achievement Medal and the Iraq Campaign Medal. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a TDIU. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, 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; Van Hoose v. Brown, 4 Vet. App. 361 (1993). “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.” Additionally, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist on a fact-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated at 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities, or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of the VA, however, 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(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In May 2019, the United States Court of Appeals for Veterans Claims (Court) held that when addressing whether a Veteran is entitled to an extraschedular TDIU rating, the Board must give attention to 1) the Veteran’s history, education, skill, and training; 2) whether the Veteran has the physical ability to perform the types of activities required by the occupation at issue; and 3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie 31 Vet. App. 58, 73 (2019). In Ray v. Wilkie, the Court explained that substantially gainful employment contains economic and noneconomic components. 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran’s: work history, education, skill, and training; the Veteran’s physical ability to perform work activities; and the Veteran’s mental ability to perform work activities required by the Veteran’s occupation. The Veteran is service-connected for the following disabilities: (1) posttraumatic stress disorder (PTSD) with major depressive disorder to include insomnia rated at 100 percent from March 4, 2007; (2) hypertension rated at 10 percent from January 17, 2008; (3) tinnitus rated at 10 percent from February 13, 2013; and (4) chronic recurrent lumbar strain rated at 0 percent from February 13, 2013. The Veteran’s combined evaluation for compensation is 100 percent. A TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than the 100 percent scheduler rating, and the grant of a 100 percent schedular rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. The Board acknowledges, however, that assigning a total schedular rating does not in every instance render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). More specifically, the issue of TDIU is not moot when it could be granted for a disability other than the disability for which a 100 percent rating is in effect because there would be no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. At present, the Veteran’s disability for which the 100 percent disability rating is in effect is his PTSD. The Veteran has other service-connected disabilities, such as his tinnitus, hypertension, and chronic recurrent lumbar strain for which the Board will consider whether a TDIU is warranted. In February 2013, February 2014, and March 2014, the Veteran submitted applications for TDIU. On his applications, the Veteran reported that he never worked after he was separated from the military, because he was too disabled to work full-time due to his service-connected disabilities. The Veteran had not worked since 2007. The Veteran reported that he completed 1 to 2 years of college. In April 2014, the Veteran was afforded a VA examination for his service-connected lumbar strain. The Veteran complained that his shoulders and back hurt and that physical activity aggravated his back and shoulders. He had a pinching sensation in his lower back or buttocks. Initial range of motion revealed forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. There were contributing factors of pain, weakness, fatigability, and/or incoordination, but there was no additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The VA examiner concluded that the Veteran’s back condition did not impact his ability to work. In January 2014, the Veteran was afforded a VA examination for hearing loss and tinnitus. The Veteran reported that his tinnitus caused ringing in his ears that was very loud. It happened 12 to 14 times per month and lasted 20 to 30 seconds. It impacted his ability to work in that it gradually got a little worse each year. In a January 2008 VA examination, the Veteran reported that his hypertension caused restlessness. He was currently receiving treatment for his condition. Based on the foregoing evidence and a review of all medical and lay evidence of record, the Board finds that the Veteran’s other service-connected disabilities (other than PTSD) do not prevent him from securing or following a substantially gainful occupation. The Veteran’s service-connected back condition was rated as noncompensable, and his service-connected tinnitus and hypertension were only rated at 10 percent. The Veteran’s April 2014 VA examination for his back showed that the range of motion for his back was normal despite his pain. Further, the VA examiner concluded that the Veteran’s back condition did not impact his ability to work. Furthermore, there is no probative evidence to show that his tinnitus and/or hypertension interfered with the Veteran’s physical or mental ability to work. Thus, the Veteran’s service-connected tinnitus, hypertension, and lumbar strain do not prevent him from doing any physical or non-physical work, such clerical or administrative work, that would be consistent with his education and training. Also, there is no evidence that his tinnitus, hypertension, and/or lumbar strain impact his mental ability to engage in any type of work activity. Overall, the facts demonstrate that any possible claim for a TDIU would solely be granted based on the Veteran’s service-connected PTSD, which is already rated at 100 percent for the entire appeal period. Absent evidence that his remaining service-connected disabilities result in more severe symptoms, the Board cannot find that they together result in an inability to secure or follow a substantially gainful occupation. The weight of the evidence here is against the Veteran’s claim; there is no doubt to resolve. Thus, entitlement to a TDIU for the Veteran’s disabilities other than his PTSD is not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.