Citation Nr: 22018183 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-46 278 DATE: March 28, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation: he was attending school throughout the relevant appeals period and has been unable to obtain employment due to legal issues. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 2001 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. This matter was previously before the Board in February 2020 but was remanded to develop the Veteran's TDIU claim. In July 2020, he was sent a VA Form 21-8940 application that he did not complete and return. In an August 2020 supplemental statement of the case (SSOC), his claim for a TDIU denied. Although the Veteran did not complete the VA Form 21-8940 application, the Board finds that there is sufficient evidence to decide the claim. As such, this matter is again before the Board for adjudication. 1. TDIU The Board notes that the Veteran's claim for TDIU was implicated by the record and is part and parcel of the Veteran's increased rating claims stemming from his April 2017 claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). It is established VA policy that Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. Total disability ratings for compensation 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 either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities 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). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is currently service connected for depressive disorder, rated 70 percent from May 2, 2016; status post arthroscopic left knee meniscus repair, rated 20 percent from June 13, 2013, status post arthroscopic right knee meniscus repair, rated 20 percent from June 13, 2013; lumbosacral strain, rated 10 percent from May 2, 2016 and 20 percent from June 4, 2019; tinnitus, rated 10 percent from June 13, 2013; sigmoid diverticulitis, rated zero percent from June 13, 2013 and 10 percent from August 25, 2015; right ear hearing loss, rated zero percent from June 13, 2013; erectile dysfunction, rated zero percent from May 2, 2016; and left knee scar rated at zero percent from May 2, 2016, and a right knee scar, rated zero percent from May 2, 2016. Here, the Veteran met the schedular requirements for a TDIU effective May 2, 2016, when he was granted service connection for depression at 70 percent. 38 C.F.R. § 4.16 (a). However, the Board finds that the evidence of record does not support a finding that he has been unable to secure or follow substantial gainful employment due to his service-connected disabilities. A review of the record shows the Veteran obtained an associate degree in business management in September 2015 and a bachelor's degree in business administration in June 2019. Prior to service, he indicated he worked at Jamba Juice. During service, he worked as an engineman and was a work center supervisor. After service he reported working as a director of operations, a senior sales representative, service/store manager, and marketing manager. The Board further acknowledge that the Veteran's service-connected lumbar strain, depression, bilateral knee disabilities, and sigmoid diverticulitis impacts his ability to work. Specifically, his lumbar strain and bilateral knee disabilities limits his ability in repetitive standing, bending, stooping, and heavy lifting. His sigmoid diverticulitis impedes his ability to concentrate and perform heavy labor while symptomatic. His depression also causes occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, and thinking and/or mood. However, the evidence does not reflect that his service-connected disabilities caused him to be unable to secure or maintain employment since graduation. Specifically, there is no evidence indicating that his service-connected disabilities render him incapable of performing the physical and mental acts required by roles that he previously held such as a director of operations, service/sales manager, sales representative, and marketing manager. The Board acknowledge the Veteran's reported statements throughout the record that he has been unemployed as far back as 2014. However, the Veteran has also provided conflicting evidence with regards to his employment history. Notably, in a January 2020 resume submitted by the Veteran, he indicated that he was working as a marketing manager from March 2012 to present. The Veteran further reported during an August 2019 VA examination that he was fired from one job due to change in performance and attitude. However, there is no evidence indicating that he was fired from a job due to his reported changes in performance and attitude. To the extent that he has indeed not been employed since 2014, the record reflects he was attending school from as early as 2011 until 2019 when he received a bachelor's degree in business administration. Although he may not have been employed while attending school, there is no indication that his service-connected disabilities contributed to his employment status at any time during the relevant period on appeal. Moreover, the evidence reflects he was arrested after an altercation with his wife in July 2019 and was put on probation for three years. In a July 2020 VA treatment record, he further reported that challenges to his employment status were his current legal issue and unemployment history of five years. Given the forgoing reasons, the evidence persuasively weighs against a finding that his service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education, skills, training, and work history. Accordingly, the Board finds that entitlement to a TDIU is not warranted and his claim must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.