Citation Nr: 22015385 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 16-10 810 DATE: March 17, 2022 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is denied. FINDING OF FACT The competent evidence does not demonstrate that the Veteran's service-connected disabilities alone render him unable to secure or follow a substantially gainful occupation, commensurate with his education and employment background. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.310(b), 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army November 1995 to October 1998 and from May 2003 to May 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office. Historically, the Board previously remanded this case for additional development multiple times, most recently in April 2021. The matter has now returned to the Board for appellate review. The Board finds the duties to assist have been met. Entitlement to a total disability evaluation based on individual unemployability (TDIU) Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2018). In reaching such a determination, 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). The law provides that a total disability rating 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more 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. See 38 C.F.R. § 4.16 (a). When considering whether the Veteran's disabilities meet this requirement, disabilities resulting from a common etiology or single accident will be considered as one disability. Id. Where the schedular percentage requirements are not met, entitlement to TDIU benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities; consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran is service-connected for a mood disorder with psychotic features at 60 percent disabling; sleep apnea at 50 percent disabling; left shoulder strain at 20 percent disabling; bilateral tinnitus at 10 percent disabling; bilateral knee osteoarthritis at 10 percent disabling; and lumbosacral strain at 10 percent disabling. In this regard, his combined evaluation is 90 percent from May 14, 2009. As an initial matter, the Board notes that the Veteran has an aggravated evaluation of 60 percent for mood disorder with psychotic features. When added with the pre-existing 10 percent, this disability meets the criteria for 70 percent. Although the mood disorder with psychotic features existed at entrance into the Veteran's second period of active service, the treatment during the Veteran's second period of active service represents aggravation. The RO assigned the disability noted entrance as 10 percent. See September 2013 Rating Decision. The Veteran currently has an aggravated rating of 60 percent for mood disorder with psychotic features. See 38 C.F.R. § 3.310(b). Further, the Board notes that it is limited in its review of the Veteran's reported symptomatology for this disability to its aggravated assigned evaluation. Id. Nevertheless, the Veteran meets the minimum percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a). What remains to be determined is whether the Veteran's service-connected disabilities rendered him unemployable. For the Veteran to prevail in a claim for TDIU, the evidence must show that the Veteran was unable to pursue a substantially gainful occupation due to his service-connected disabilities. 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 the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful occupation" is not defined in the rating schedule. It has both economic and noneconomic components. The Board must consider history, eduction, skill, training, and whether the Veteran has the physical and/or mental ability to work. Ray v. Wilkie, 31 Vet. App. 58 (2019). In his June 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full time as human resources assistant in January 2014. He claimed to have stopped working full time due to his service-connected disabilities also in January 2014. Further, the Veteran reported that he worked as a driver for 30 hours a week in 2017. The Veteran reported that he had completed four years of college. In 2017, the Veteran completed commercial driver's training. He indicated that he left his last job due to his disability. The Veteran reported that he tried to obtain employment since becoming too disabled to work. However, the Veteran affirmatively stated that he had been unemployed from 2014 to present and that he received disability income from the VA. In January 2020, the Veteran submitted a resume to the VA's vocational rehabilitation program and stated he was making $42,720 a year. The Veteran's income exceeded the poverty threshold for 2020. See United States Census Bureau, Poverty Thresholds, available at: https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (Lasted visited February 15, 2022). The Veteran does not have marginal employment under 38 C.F.R. § 4.16(a) because it states marginal employment is generally deemed to exist when it does not exceed the amount established by the United States Department of Commerce Bureau for the Census. In a July 2018 VA examination, the examiner found that the Veteran's sleep apnea did not impact his ability to work. VA treatment records from July 2018 reveal that the attending psychiatric provider opined that the Veteran was unemployable due to his service-connected disabilities. Additional VA treatment records from 2018 show that the Veteran reported that he was unemployed. A VA mental health assessment note from September 2018 notes that the Veteran's caregiver reported that the Veteran worked at her car shop assisting with administrative duties and transporting cars when needed. At that time, the Veteran was reported to be working 3 days per week, generally from 10:00 A.M. to 4:00 P.M. It was noted that the caregiver reduced the Veteran's hours recently due to his irritability and outbursts at times. However, the caregiver further reported that this schedule was manageable for the Veteran. In an October 2018 VA examination, the examiner found that the Veteran's lumbar spine disability did not impact his ability to work. In a VA examination from November 2018, the Veteran reported that he last worked in 2017 in transportation and left due to mood disturbance. The examiner noted that the Veteran reported that he was no longer working, reportedly due to the Veteran's symptoms. The examiner characterized the Veteran's symptoms as in the moderate range at the time of the examination. In June 2020, the VA examiner for the Veteran's service-connected knee disability found that the Veteran's knee disability impacted his ability to work because it would be difficult to walk, sit, stand for greater than 20 minutes and he has difficulty going up stairs. At a June 2020 VA examination for the Veteran's service-connected lumbar spine disability, the examiner found that the Veteran's lumbar spine disability impacted his ability to work because he would have difficulty bending, sitting, and standing for extended periods of time more than 30 minutes at a time. The Veteran applied for vocational rehabilitation services through VA in November 2019. In January 2020, the Veteran supplied VA with his then current resume in connection with his application for vocational rehabilitation services. The Veteran reported that he had been employed full time as a human resources assistant with a property management company from May 2014 to the present. A February 2020 counseling record indicates that the Veteran was looking at maintaining his current job, but that he needed assistance. Further, the Veteran was supplied with a laptop to help him maintain his current job and to allow him to have a job where he was able to work on his own. In June 2020, the Veteran was awarded an extension of vocational rehabilitation benefits to complete additional certifications. In August 2020, the VA notified the Veteran that it had received notification from the Veteran that the Veteran completed the program and it resulted in employment. Specifically, that the Veteran became employed by the Department of the Air Force as a Health Care Advocate in July 2020, earning $3,515.00 per month. The Board has considered what sedentary employment means in this Veteran's case. Withers v. Wilkie, 30 Vet. App. 139 (2018) (Because VA does not define sedentary employment in its regulations for a TDIU, the Board must determine the meaning on a case-by-case basis). Sedentary means doing or requiring much sitting or not physically active. Merriam-Webster's Collegiate Dictionary 1123 (11th ed. 2012). It also means: 1. Sitting habitually; of inactive habits. 2. Pertaining to a sitting posture. Dorland's Illustrated Medical Dictionary, 1687 (32nd ed. 2012). In this case, the Board envisions potential sedentary employment to encompass administrative, instructor, or other forms of employment that would not require the Veteran to spend a significant amount of time on his feet, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks to get up from a sitting position to stretch out his body. The Veteran completed four years of college and a commercial driver's training course, in addition to completing VA's vocational rehabilitation program. His reported work history largely involved work that did not require strenuous physical activity; namely, as a driver, a human resource specialist, and as a health care advocate. Therefore, the Veteran would be capable of a variety of forms of employment that would generally involve prolonged sitting with little need for lifting, carrying, bending, or climbing. As such, the Veteran's skills, training, and work history would not preclude such similar sedentary positions. In light of the above, the Board finds that the cumulative effects of the Veteran's service-connected mood disorder with psychotic features, sleep apnea, left shoulder strain, bilateral tinnitus, bilateral knee osteoarthritis, and lumbosacral strain did not render him unable to secure or follow a substantially gainful occupation. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The Board finds that the evidence of record does not support the grant of TDIU. Notably, the VA vocational rehabilitation evidence does not support a conclusion that the Veteran's service-connected disabilities alone precluded him from obtaining or maintaining gainful employment during this time. Importantly, the Veteran qualified for vocational rehabilitation services and reported that he found full time employment as of July 2020. Although some of the VA examiners of record indicated that the Veteran's ability to work would be impacted by some of his service-connected disabilities, the Veteran's consistent reported full time employment outside of the medical evidence is highly probative. The Veteran's income generally appears to have exceeded poverty income thresholds per 38 U.S.C. § 4.16 (a). Even if there have periods since where the income did not exceed the threshold, the Veteran is capable of sedentary work per his educational history and training; to include four years of a college education and certifications recently achieved through the VA's vocational rehabilitation Services. The objective evidence consistently indicates that the Veteran can participate in employment and is not precluded from such employment despite his service-connected disabilities. In making its determination, the Board is obligated to weigh the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana v. Shinseki, 24 Vet. App. 428, 433-34 (2011). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence of the disability, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset of the disability). Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Although the Veteran believes that he could not secure or follow a substantially gainful occupation as a result of his service-connected disabilities the more persuasive evidence indicates otherwise. The Board acknowledges that the Veteran is competent to relate what he personally experiences. However, the record shows he has been able to maintain employment and has successfully participated in vocational rehabilitation services to procure full time employment. As such, the Board concludes that the Veteran's reports of an inability to obtain and sustain gainful employment due to service-connected disabilities is not credible. The Board makes no judgment as to whether the Veteran's lack of credibility with respect to his statements is the result of impaired memory, exaggerations of the facts, or deceit; the stark inconsistencies alone are sufficient to render the statements of no evidentiary weight regardless of the underlying reasons for the inconsistencies. (Continued on the next page) Moreover, the Board acknowledges the functional effects of the Veteran's service-connected disabilities as reflected by his overall 90 percent schedular evaluation as of May 14, 2009. The Board also acknowledges the Veteran's reported symptoms of irritability and pain during this time. However, after considering the totality of the record, the Board finds that the approximate balance of the evidence weighs persuasively against a finding that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation commensurate with his work and education history. While those disabilities which were service-connected did have functional impairment which affected his ability to work, they did not alone render him unemployable. The Veteran is not entitled to a TDIU evaluation. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a TDIU. As the evidence of record persuasively weighs against a TDIU, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, Associate 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.