Citation Nr: 21027303 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-06 557A DATE: May 5, 2021 ORDER A total rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Service connection is currently in effect for posttraumatic stress disorder (PTSD), rated 70 percent disabling. 2. The Veteran reported that he had four years of high school education, or four years of college education; and is currently working as a substitute teacher. 3. The service-connected disability, standing alone, is not shown to be of such severity as to render the Veteran unable to secure or follow a substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to June 1980. In a March 2019 decision, the Board of Veterans' Appeals (Board) denied, in pertinent part, a claim to reopen a service connection claim for an acquired psychiatric disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court) and a Joint Motion for Partial Remand (JMR) was filed. In January 2020, the Court issued an Order which vacated the Board's March 2019 denial to reopen the aforementioned claim and remanded the Veteran's appeal for action consistent with the JMR. In June 2020, consistent with the Court's JMR, the Board determined that new and material evidence had been received to reopen the Veteran's claim for service connection for an acquired psychiatric disorder, and remanded the underlying service connection claim for additional development. In a February 2021 rating decision, the Regional Office (RO) granted service connection for PTSD, rated 70 percent disabling, effective March 18, 2009 (date of claim). As this constitutes a full grant of the benefit sought regarding that issue, it is no longer before the Board. The RO simultaneously issued a supplemental statement of the case (SSOC) regarding the issue of TDIU under the provisions of Rice v. Shinseki, 22 Vet. App. 447 (2009). Notably, in a March 2020 VA Form 21-8940, the Veteran reported he was prevented from securing or following a substantially gainful employment as a result of his PTSD. Although the claim for TDIU was denied in an April 2020 rating decision, the Veteran was not service-connected for any disability at that time. As noted above, the Veteran was subsequently awarded service connection for PTSD. Accordingly, the RO reconsidered the TDIU claim in a February 2021 SSOC. Entitlement to TDIU The Veteran claims TDIU as a result of his service-connected PTSD. Review of the record shows that service connection is currently in effect for PTSD, rated 70 percent disabling. This is the Veteran's only service-connected disability. In an early March 2020 application for TDIU, the Veteran reported having had four years of college education and work experience as a substitute teacher. Later that month, the Veteran submitted an application that indicated that he had four years of high school education. In both applications, he indicated that he continued to work as a substitute teacher. He stated that he worked 30 hours per week and had earned $14,369.01 over the past 12 months. He also stated he was unable to continue working as a substitute teacher because of the stress associated with working with some of the students who required constant redirection to avoid disruption of other students. He stated that he had to work in order to pay his household bills. Total disability ratings for compensation 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. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. "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." Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U. S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. According to the Census Bureau, in 2020, the Poverty Threshold was $12, 760. Poverty Thresholds, U.S. Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Marginal employment may also be held to exist, on a facts found basis (included but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16. A review of the claims file show that on December 2019 VA examination, PTSD was the only psychiatric disorder diagnosed. The examiner quantified the Veteran's PTSD symptoms as resulting in occupational and social impairment with reduced reliability and productivity. Regarding the PTSD diagnostic criteria, the Veteran reported recurrent and intrusive memories, dreams, and psychological and physiological reactions to internal or external cues; persistent avoidance of stimuli associated with the traumatic events; persistent and exaggerated negative beliefs, negative emotional state, or diminished interest or participation in significant activities; irritable behavior, hypervigilance, exaggerated startle response, and sleep disturbance. Psychiatric symptoms included depressed mood; anxiety; suspiciousness; panic attacks; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike settings; suicidal ideation; and obsessional rituals that interfered with routine activities. The Veteran has significant psychiatric symptoms from his PTSD that cause serious occupational and social impairment, but they are not shown to render him unable to secure or follow a substantially gainful employment, as evidenced by the VA examiner noting that the PTSD causes reduced reliability and productivity, but not total disability. Moreover, the Veteran has reported that he continues to work as a substitute teacher. This is more than marginal employment as defined above. For example, over the 12 months prior to his application, his income exceeded the poverty level for the year 2020. In addition, he reported that he worked 30 hours per week and, while he had difficulties dealing with some students, there is no evidence that he has been prevented from engaging in employment as a teacher. Nor is this considered employment in a protected or sheltered environment. For a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes his case outside of the norm. The sole fact that he 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 and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Clearly, as the Veteran is able to perform the acts necessary to function as a substitute teacher for 30 hours per week despite the difficulties. For this reason, his case is not taken outside the norm and he is not eligible for TDIU. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for TDIU, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.