Citation Nr: 21042370 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-38 863 DATE: July 12, 2021 ORDER A total disability rating based upon individual employability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected acquired psychiatric disability has not rendered him unable to secure or to follow 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, 4.3, 4.15, 4.16 REASONS AND BASES FOR FINDING AND CONCLUSION This appeal initially came to the Board of Veterans' Appeals (Board) from an October 2013 rating decision. In April 2020, the Board denied the Veteran's claim for entitlement to TDIU. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In March 2021, the Court vacated the Board denial of TDIU and remanded the Veteran's claim for action consistent with the directives of a joint motion for remand (JMR). 1. Entitlement to TDIU VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). The Veteran is service connected for cyclothymic disorder with a 70 percent rating effective October 26, 2012. Therefore, the Veteran meets the schedular rating criteria for TDIU as of that date. 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, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor that takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2012); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran did not complete and return a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), despite repeated requests by VA to do so. Although failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to his employment history, educational history and training, and income information necessary to address a claim for a TDIU. The Board has reached its conclusion based on the evidence available in the record. The record contains various statements by the Veteran that he has been unemployed throughout the period on appeal. At his December 2018 Board hearing the Veteran testified that when he was teaching he was sometimes rude to his students and was evaluated as sometimes being obnoxious. He reported he taught for 37 years and quit teaching because he was moody. At his May 2011 VA examination, the Veteran reported he last worked five years prior as a university professor. At his September 2013 VA examination, he reported he did farm work for three to four months after leaving service, then got a degree in English and taught for four years. He completed a master's degree and began teaching at another school. He completed a doctorate and taught English for 16 years at another institution before finally teaching another 10 years at a different school. He reported teaching for more than 40 years although only getting benefits for 25 years because his contracts were yearly. An April 2013 VA treatment record indicates that the Veteran reported he retired in 2007 after 36 years of teaching English. A May 2013 VA treatment record notes the Veteran's report that he was generally able to function at work but had performance problems due to mood swings. He reported he had not worked in 8 years. In a statement submitted in October 2012, the Veteran reported that he had been demoted twice in 1979, was forced to resign in 1990, failed to obtain a job after interviewing for 15 of them, was fired from a job in 1991, did not receive a contract renewal for a job in 1993, never rose above the "lowest level of employment for any length of time," was hired and "immediately released" from a part-time teaching job, and was fired from another part-time teaching job. In a January 2011 statement, the Veteran noted previous negative behaviors had affected his employment. He noted he had been able to maintain employment and retire with 25 years of service, but noted he remained at a low level, only able to function with the help of isolation, medication, and therapy. He reported two attempts to function at an advanced level resulted in hospitalizations. He stated that for his last 11 years of employment he did not talk at a single faculty meeting, did not serve on any committee, and refused all opportunity for advancement knowing he would only be able to function for a short time at an advanced job. An August 2015 VA treatment record notes the Veteran's report that his overreaction has cost him several jobs. A VA doctor who examined the Veteran in January 2020 opined that the Veteran's relatively mild psychiatric symptoms and generally normal functioning were unlikely to unlikely to prevent him from maintaining employment with appropriate modifications, such as flexible time limits, and ability to work independently as needed. The Board has considered all of the evidence, including the Veteran's statements, and does not doubt that his service-connected psychiatric condition has considerably affected his occupational functioning and career advancement. However, the determination that must be made for TDIU is only whether a veteran is capable of performing some substantially gainful employment despite his service-connected disability, not whether a veteran may perform a specific job or advance in a specific career path. Here, the evidence reflects that the Veteran's service-connected psychiatric condition does affect his interpersonal relationships, including resulting in moodiness with his students. He also testified at his December 2018 Board hearing as to having some problems with memory, including names. Mild memory loss was noted as a symptom on his January 2020 VA examination. However, despite his difficulties, the Veteran was employed for many years until he reached 25 years of teaching. Although his work experience, as far as the Board is aware, is exclusively in teaching, the Board notes that he has multiple advanced degrees. Based on the information of record, the Board does not find that the Veteran's service-connected psychiatric condition prevents the Veteran from obtaining or maintaining some type of substantially gainful employment. Thus, the Board finds that a preponderance of the evidence is against entitlement to TDIU. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.