Citation Nr: 21029754 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-28 168 DATE: May 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period on appeal is denied. FINDING OF FACT The evidence of record does not show that the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for establishing entitlement to a total disability rating based on individual unemployability (TDIU) for the period on appeal have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1986 to May 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in December 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain medical opinions regarding the impact of Veteran's claimed disabilities on his employment. However, in developing the record, evidence was added to the record, including the Veteran's Social Security Administration (SSA) records which determined that the Veteran was substantially and gainfully employed throughout the period on appeal. As this addresses the heart of the matter on appeal, the Board finds that compliance with the prior remand directives regarding an examination on the occupational impact of the Veteran's disabilities is moot, as the evidence shows the Veteran was in fact substantially gainfully employed. As such, the Board finds that the AOJ substantially complied with the directives in the December 2020 remand, or that such compliance is otherwise moot. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIULegal Criteria Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as "one disability" for these purposes. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd v. McDonald, 27 Vet. App. 79 85-86 (2014). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see, e.g., Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). A veteran's age and/or impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. Marginal employment or employment in a protected environment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. See 38 C.F.R. § 4.16 (a); see also Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). The ability to work only a few hours a day or only sporadically does not qualify as an ability to engage in substantially gainful employment. See id. Marginal employment shall generally be deemed to exist when a veteran's earned 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. See 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. See id. Consideration must be given in all claims to the nature of the employment and the reason for termination. See id. The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with his or her education and experience. Analysis The Veteran contends that he is entitled to a TDIU as a result of his service-connected disabilities. The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As an initial matter, the Board observes that the Veteran met the schedular criteria for TDIU beginning May 15, 2012. The Veteran had a combined schedular rating of 80 percent disabling which increased to 90 percent disabling effective August 20, 2015. Although the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU, the Board finds that the evidence establishes that his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation during the relevant period on appeal. Specifically, the Board notes that the Veteran was engaged in substantially gainful employment throughout the period on appeal. Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Regarding the economic factors, the Veteran's Social Security Administration (SSA) records, VA treatment records, and March 2021 VA Form 21-8940 Application for Increased Compensation Based on Unemployability showed that he was a police officer from 2002 to June 2012, and also a K9 officer/trainer. Further, the Veteran worked from September 2012 to February 2014 as a meter reader. The Veteran additionally worked at Home Depot from February 2013 to September 2014 and as a delivery driver from May 2014 to September 2014. From July 2014 to August 1, 2019, the Veteran worked at a VA medical center. See August 2019 VA Form 21-8940. The VA medical center confirmed the Veteran's employment in an October 2019 VA 21-4192, and indicated earnings of $33,954.35 in the prior 12 months. The Veteran's SSA records are consistent with his employment history through July 2019 and show a disability onset date of August 1, 2019. As such, the record does not contain any evidence that the Veteran was unable to earn more than marginal income and he has not argued or presented evidence that shows he earned an income that was at or less than the poverty threshold. Regarding the non-economic factors, as noted above, the Veteran worked full time throughout the relevant period on appeal. The Veteran reported that he had two years of college education and denied any additional training or education. See March 2021 and August 2019 VA Forms 21-8940. There is no evidence from the Veteran or in the record that the Veteran required or was otherwise employed in a protected environment or was physically or mentally unable to perform his duties in his professions during the relevant periods on appeal. Ray v. Wilkie, 31 Vet. App. 58 (2019). While the Veteran reported that he was fearful when he left his home and had to avoid people to prevent conflict, there is no evidence from the Veteran or the record that accommodations are made to protect the Veteran from having to interact with others. Additionally, while the Veteran reported physical limitations on his ability to work, to include needing to take frequent breaks and an inability to walk for extended periods of time, the evidence of record does not show his service-connected disabilities prevented employment consistent with his history, skill, or education. The Board notes that the Veteran indicated that he became too disabled to work in June 2012 and that he stopped working full time in either January 2013 or June 2012. See March 2021 and August 2019 VA Forms 21-8940. However, the Veteran's statements that he became too disabled to work, and when he actually stopped working are contradicted by the evidence in the record, and the Veteran's own reports that he retired in August 2019 and that he was employed 40 hours a week at his above noted jobs during the period on appeal. Based on the evidence of record, the Veteran was gainfully employed throughout the entire period on appeal prior to November 23, 2018, the date Veteran was rated 100 percent disabled. The Board has carefully considered the Veteran's statements regarding the effects of his disabilities on his employability during the relevant period. Although he experienced some difficulties, the evidence does not show that he was precluded from obtaining or maintaining substantially gainful employment consistent with his education and history. Indeed, the evidence shows that the Veteran was gainfully employed throughout the relevant period on appeal. Additionally, the Veteran has not claimed that he worked in a protected type environment, and the evidence does not show marginal employment on a facts-found basis. The Board reiterates that the crucial question is whether the Veteran's service-connected disabilities render him incapable of "performing the physical and mental acts required" to be employed. Ray v Wilkie, 31 Vet. App. at 73; see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (clarifying that, for TDIU purposes, "[t]he question is whether the veteran is capable of performing the physical and mental acts required by employment" (emphasis omitted)).). Here, there is no credible evidence demonstrating that the Veteran's service-connected disabilities, either collectively or individually, met this threshold during the relevant period. The Board accepts that these disabilities have some occupational impact. The Board recognizes, for instance, that his foot and ankle disabilities impair his mobility and cause him pain. Notwithstanding these findings, however, there is simply no credible evidence to suggest that these disabilities have rendered the Veteran incapable of "performing the physical and mental acts required" to be employed. See, Van Hoose, 4 Vet. App. 361. In this regard, the critical question is whether the Veteran's service-connected disabilities caused him to be unable to work, notwithstanding his age or other nonservice-connected problems. For the reasons discussed above, the preponderance of the evidence is against the claim of entitlement to TDIU. The benefit-of-the-doubt doctrine is therefore not for application, and the appeal is denied. 38 U.S.C. § 5107(b). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.