Citation Nr: 21042467 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 19-31 797 DATE: July 13, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 8, 2018 is denied. FINDING OF FACT Prior to December 8, 2018, the Veteran's service-connected disabilities did not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW For the period prior to December 8, 2018, the criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1995 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020 the matter was remanded for additional development. TDIU The Veteran is seeking a TDIU prior to December 8, 2018. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether a TDIU is warranted, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In April 2021, the RO granted TDIU effective from effective December 8, 2018, the day following his last date of full employment. The Board will, therefore, consider whether the Veteran's service-connected disabilities preclude substantially gainful employment for the period prior to December 8, 2018. Prior to December 8, 2018, the Veteran was service-connected for panic disorder with generalized anxiety (50 percent), asthma (30 percent), gastroesophageal reflux disease (30 percent), bilateral upper extremity radiculopathy (each extremity 20 percent) bilateral lower extremity radiculopathy (each extremity 20 percent),low back strain (10 percent), tinnitus (10 percent), left wrist ganglion cyst (0 percent), erectile dysfunction (0 percent), and tongue condition (0 percent). His combined rating for his multiple service-connected disabilities, was 90 percent from January 2015, and 80 percent from August 2013. Hence, he met the schedular requirements for individual unemployability prior to December 8, 2018. In this case, the Board will not otherwise set out the various factors to be considered in determining whether actual unemployment is the result of service-connected disabilities, because, as will be discussed, the evidence shows that the Veteran was employed throughout the appeal period in question. By way of history, there are several VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability forms of record. In July 2017, the Veteran reported that he became too disabled to work in November 2014 but continued to work full time until June 20, 2017. In December 2017, VA received another VA Form 21-8940, where the Veteran reported that he became too disabled to work on December 5, 2017. However, in a third VA Form 21-8940, submitted in November 2018, the Veteran reported that he had medically retired, effective December 7, 2018 and that his longest period of continuous employment was as a medical support assistant with VA center since October 2007. His total earned income for the past 12 months was $44,000 and his current monthly earned income was $3,600. He noted he had completed two years of college education and had additional training as a barber/hair stylist. See also VA Form 21-8940 dated December 2019. In January 2019, the Veteran's former employer, VA, submitted a VA Form 21-4192, (Request for Employment Information in Connection with Claim for Disability Benefits. It was confirmed that the Veteran had been employed full time as a clerical/scheduler from September 29, 2007 until he medically retired on December 7, 2018. Concessions made to accommodate his disability included moving the Veteran to different clinics/facilities. It was also noted that the Veteran lost 132 hours from March 2018 and that he earned $44, 664 during the 12 months preceding his last date of employment (before deductions). After reviewing the evidence of record, the Board finds that TDIU is not warranted, as the Veteran was gainfully employed full time prior to December 2018 despite earlier statements that he stopped working in June or December 2017. The purpose of TDIU is to compensate those veterans who are unable to maintain gainful employment due to their service-connected disabilities, as they are otherwise unable to earn a living. See 38 C.F.R. § 4.16(b). Here, the Veteran was employed full-time and there is no indication that his service-connected disabilities resulted in a significant number of absences from work or in a loss of income. Rather, the record shows that he only missed 132 hours (about 3-4 weeks) in the 9 months prior to his medical retirement in December 2018. In addition, the Veteran was able to use paid leave so that he was compensated for any absences from work due to his service-connected disabilities and there are no instances of leave without pay status indicating a reduction in income. In this regard, the record shows the Veteran had earned income in excess of $40,000.00 during the time period in question. See VA Form 21-4192s dated in October 2017 and January 2019. In this case awarding TDIU would not service its intended purpose as the Veteran has been able to maintain gainful full-time employment, despite the severity of his service-connected disabilities. Therefore, a TDIU prior to December 2018 would not serve the purpose intended by Congress. See 38 U.S.C. § 1155. As the Veteran was able to secure and follow a substantially gainful occupation, the Board may not grant entitlement to a TDIU for the period prior to December 8, 2018. See 38 C.F.R. § 4.16. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bryant, Jeana R 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.