Citation Nr: 21042329 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-20 609A DATE: July 12, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to June 2, 2009 is denied. FINDING OF FACT For the rating period from December 20, 2006 to June 2, 2009, the Veteran was not rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of his service-connected disabilities alone. CONCLUSION OF LAW The criteria for a TDIU prior to June 2, 2009 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1978 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to a TDIU. The issue of entitlement to a TDIU was previously before the Board in February 2015 and December 2016, at which time it was remanded for additional development. In a March 2018 decision, the Board granted entitlement to a TDIU from July 15, 2016, but denied entitlement to a TDIU prior to that date. The Veteran appealed the Board's March 2018 decision to the United States Court of Appeals for Veterans Claims (Court), which, by Order dated in October 2018, granted an October 2018 Joint Motion for Remand (JMR) and remanded that part of the Board's March 2018 decision regarding entitlement to a TDIU prior to July 15, 2016. In a June 2019 decision, the Board assigned an effective date of July 22, 2009 for a TDIU. The Board observes that the in an August 2019 rating decision that implements the Board's June 2019 decision, the RO assigned a new effective date of June 2, 2009, the date of the informal claim. As such, the issue is characterized accordingly. The Veteran appealed the Board's June 2019 decision to the Court. In a November 2020 Memorandum Decision, the Court held the portion of the June 13, 2019 Board decision denying TDIU prior to July 22, 2009, is set aside and that matter is remanded for readjudication consistent with the decision. 1. Entitlement to a TDIU prior to June 2, 2009 A TDIU is, in essence, a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Norris, 12 Vet. App. at 420; Hurd, 13 Vet. App. 449. A TDIU claim is an alternative way to obtain a total disability rating without recourse to a 100 percent rating under the rating schedule. See, e.g., Parker v. Brown, 7 Vet. App. 116, 118 (1994). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). A TDIU may be assigned when the disabled veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). As outlined above, TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). As noted above, TDIU was effective June 2, 2009, (the date of the claim). The Veteran reports that his effective date should be December 20, 2006, the date he submitted his original claim for service connection for depression. The Board observes that in December 20, 2006, the Veteran had a combined 70 percent disability rating with at least one disability rated at 40 percent or higher. As a result, the schedular requirements for TDIU were met as of December 20, 2006. As the current effective date is June 2, 2009, the Board will concentrate on the evidence from December 20, 2006 to the most recent June 2, 2009 effective date. The medical evidence of record during this time period, however, does not show that the depressive disorder or any service-connected disabilities resulted in the Veteran's inability to secure or follow a substantially gainful occupation. Indeed, in a July 2007 VA mental health examination, the Veteran reported that the last time he worked was earlier in the year when he worked for two months as a material handler through a temporary agency. His previous job was for four months when he was working as a sander. The Veteran indicated that he was spending his time hauling junk, visiting with relatives, and friends, fishing, and playing with his dog. The examiner indicated that no impairment in social functioning, thought processing or communication was noted. The examiner stated that the Veteran had a long history of substance abuse. The Veteran denied current alcohol use or current cannibis use. In today's examination, he attributed some depression to his physical problems and the fact that he was not working; however, with a Bachelor's degree, the examiner stated that it was unclear why his jobs he involve manual labor, noting that certainly, it would appear as if there were jobs that his physical problems did not preclude that would be available for him. In terms strictly of his depression, the frequency of symptoms appeared to be mild. In an August 2007 VA foot examination, after examining the Veteran, the examiner indicated that there was no evidence that he would not be able to be employed because of his foot disability. The Board notes that the foot disability was service-connected as of April 2015. In an October 2007 VA general examination, after an in-depth physical examination of the Veteran, the examiner indicated that the heart disability, erectile dysfunction, and genitourinary disorder had no effect on any occupation. During the December 2008 Board hearing, the Veteran testified that both his back disability (which is not service-connected) as well as his psychiatric disability interfered with his ability to work. The Board finds, based on the pertinent evidence, that for the rating period from December 20, 2006 to June 2, 2009, the Veteran was not rendered unable to obtain (secure) or follow (maintain) substantially gainful employment due to the service-connected disabilities. Indeed, there is no competent medical evidence or opinion that shows the Veteran's service-connected disabilities alone rendered him unable to obtain substantially gainful employment. Further, the Veteran testified himself, that it was his low back disability along with his psychiatric disability that interfered with his ability to be employed. However, his psychiatric disability was assessed as being mild and the examiner indicated in the report that the Veteran as capable of employment as suggested work that did not involve manual labor (due to the nonservice-connected physical impairment). As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.