Citation Nr: 22018323 Decision Date: 03/29/22 Archive Date: 03/28/22 DOCKET NO. 17-22 495A DATE: March 29, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence persuasively weighs against a finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. 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 Marine Corps from March 1968 to December 1970. A Board hearing was held before the undersigned Veterans Law Judge in August 2019, and a transcript of the hearing is of record. In this case, the Veteran perfected his appeal of a June 2013 rating decision that, in relevant part, denied his July 2011 claim for entitlement to a TDIU. In a November 2019 decision, the Board denied the Veteran's claim for entitlement to a TDIU. In August 2021, the United States Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision that set aside the November 2019 Board decision. The Court found that remand was required for the Board to address favorable information pertaining to the Veteran's TDIU claim. As discussed beneath, the Board has considered the favorable information identified in the August 2021 Memorandum Decision, as well as the additional arguments submitted in a December 2020 and April 2021 Appellant Brief. For the reasons discussed further below, the Board finds entitlement to a TDIU is not warranted. A total disability rating may be assigned where the schedular rating is less than total when the veteran is, in the judgment of the rating agency, unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. If the veteran has only one service-connected disability, this disability shall be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more service-connected disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. Here, the Veteran's service-connected disabilities include: a bilateral knee disability, and a right foot disability as secondary to his service-connected right knee disability. The Veteran's service-connected bilateral knee disability and right foot disability are considered one disability under 38 C.F.R. § 4.16(a), with an evaluation of at least 60 percent for the entire period on appeal. As such, the Veteran meets the criteria for consideration of entitlement to a TDIU on a schedular basis for the entire period on appeal. The phrase "unable to secure and follow a substantially gainful occupation" has an economic component and a noneconomic component. See Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component considers the veteran's ability to secure and follow an occupation earning more than marginal income. Marginal employment is generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. See 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. Id. The noneconomic component considers such factors as the Veteran's employment history, education, skill, training, physical ability, and mental ability. See Ray, 31 Vet. App. at 72. The Court has held that the veteran's ability or inability to engage in substantial gainful activity has to be looked at in a practical manner, and the test is whether a particular job is realistically within the physical and mental capabilities of the veteran. See Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but a factual determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In this case, with respect to the economic component of the phrase "unable to secure and follow a substantially gainful occupation," the Veteran reported that he last worked full-time at some point between 2002 and 2004. See August 2006, November 2009, and December 2011 VA Form 21-8940. The Veteran reported that his service-connected bilateral knee disability and right foot disability prevented him from securing or following any substantially gainful occupation. In May 2016, the Veteran indicated that he was self-employed working in computer graphics from 2011 to 2016. See May 2016 VA Form 21-8940. However, the Veteran indicated that he earned only marginal income from 2011 to 2016. See 2016 and 2017 income tax returns; see also August 2019 Board hearing transcript. In September 2017, the Veteran reported that he was unable to work in printing because it required bending, lifting, and prolonged standing. See September 2017 VA Form 21-8940. With respect to disabilities that prevented him from securing or following any substantially gainful occupation, the Veteran reported that nonservice-connected conditions involving his bilateral hands and bilateral shoulders precluded him from employment. In July 2019 correspondence, the Veteran reported that he worked for a company operating his own vehicle for hire until December 2018. The Veteran reported he could no longer work for the company operating his own vehicle for hire because the vehicle was considered too old. See also August 2019 Board hearing transcript (Veteran reported he was unable to sit in the car for prolonged periods due to his service-connected bilateral knee disability). Although the evidence of record suggests that the Veteran has been employed at various times during the period on appeal, it appears that any such employment has not resulted in earning more than marginal income at any time during the period under review. As such evidence supports a finding that the Veteran has earned no more than marginal income during the period under review, he meets the economic criteria for consideration of entitlement to a TDIU for the entire appeal period. With respect to noneconomic considerations, the Veteran completed his high school education. The Veteran reported additional education and training in music following his graduation from high school. The Veteran reported that he earned an Associate Degree in music. See August 2006 VA Form 21-8940. Additionally, the Veteran served as a Field Music Bugler in the Marine Corps. See DD Form 214. In considering the Veteran's employment history, the Veteran reported that he ran a large printing press prior to joining the service in March 1968. Following his separation from service in December 1970, the Veteran reported that he worked as a printing pressman for the government for 21 years. See December 2007 VA mental health note; see also January 2016 Decision Review Officer (DRO) hearing transcript. The Veteran indicated that he left his government job because his service-connected disabilities prevented him from the prolonged standing, bending, and lifting/carrying of heavy objects that was required of a printing pressman. After leaving his government job, the Veteran reported that he ran his own print shop from approximately 1981 to 1990. See September 2002 Y.R. Vocational Assessment; see also Rehabilitation Needs Inventory. The Veteran reported that he generally used independent contractors to work the presses in his shop. The Veteran reported that he had between two to thirteen people who performed work for him. After approximately eight or more years of running his own business, the Veteran reported that he closed the print shop because he was tired of doing the work and because his service-connected bilateral knee disability continued to bother him. The Veteran reported that he lived off his earnings and the sale of the printing equipment. The Veteran reported that he supplemented his income by brokering print sales for the next more than 10 years. The Veteran also reported that he previously taught music to youths. See December 2007 VA mental health note; see also August 2018 VA primary care secure messaging. While the dates of such employment are not clear from the evidence of record, the Veteran reportedly indicated that he was no longer interested in the music field. See October 2002 VA Vocational Rehabilitation and Employment (VR&E) counseling record. In June 2002, the Veteran applied for vocational rehabilitation through VA. See June 2002 VA Form 28-1900. The Veteran reported his inability to stand limited his ability to obtain or hold a satisfactory job. The Veteran indicated his goal in seeking vocational rehabilitation was to learn computer graphics. The Veteran underwent a vocational evaluation in September 2002. See September 2002 Y.R. Vocational Assessment. The vocational rehabilitation counselor noted that, in addition to the Veteran's service-connected disabilities, the Veteran was also diagnosed with heart disease, removal of rib, unfavorable ankylosis of the (left) hand, and infectious hepatitis. See August 2002 VA Form 1985. The vocational rehabilitation counselor reported that the Veteran did not present well, and that employers would be concerned about the Veteran's attitude. Testing measures revealed that the Veteran demonstrated intellectual ability in the high average to above average range. Composite scores indicated that the Veteran demonstrated the ability to perform jobs in all general occupational areas, and that his highest scores were in professional technology, professional arts, and professional service-related areas. The vocational rehabilitation counselor reported the Veteran had not been seeking employment and expressed little interest in returning to work for anyone else. The Veteran reportedly desired self-employment in an expanded role as a print job broker. The vocational rehabilitation counselor noted that she had conducted a labor market survey regarding the printing industry and determined that the industry generally was in a slump after September 11, 2001, and that cutbacks in promotional material was one of the first things to happen as businesses struggled financially. The vocational rehabilitation counselor opined that the Veteran's prognosis for returning to gainful employment was guarded. In forming this opinion, she stated the Veteran's "inconsistent statements, poor presentation and apparent lack of motivation make a successful outcome dubious at best." The Veteran underwent computer aptitude testing and assessment in December 2002 based on his goal of self-employment as a freelance graphic artist/desktop publisher. The examiner reported the Veteran's service-connected conditions were consistent with sedentary work as a desktop publisher and graphic artist, so long as he had the ability to sit and stand as necessary to alleviate discomfort. The examiner reported the Veteran's overall computer user skills were in the above average range. The examiner reported the Veteran had aptitude and analytic abilities, but that he did not have an employable presence. In considering the Veteran's mental ability to engage in substantially gainful employment, the Veteran is not service-connected for any mental condition that results in functional impairment. Insofar as the Veteran asserted that he has been prescribed medication for service-connected disabilities which make him drowsy and/or limit his ability to drive for the period under review, the Board observes that VA treatment records document only limited opioid prescriptions for the Veteran's service-connected left and/or right knee in June 2012, November 2014, and April 2016. See July 2013 VA Form 21-4138. In July 2012, the Veteran's primary care provider noted that she had stopped prescribing opioids for the Veteran's chronic knee pain in the context of the Veteran's cocaine use. See July 2012 VA addendum; see also March 2013 VA primary care note. The Veteran's primary care provider noted that the Veteran continued to receive opioid prescriptions from podiatry. The Board observes that the Veteran was prescribed opioids by podiatry for a nonservice-connected left foot bunionectomy. During the period under review, the opioid prescription(s) for the Veteran's service-connected bilateral knee disability may have resulted in drowsiness and restricted his ability to drive for a limited period of time from June 2012, November 2014, and April 2016. The Board finds such facts do not support a conclusion that medication prescribed for the Veteran's service-connected bilateral knee disability or right foot disability impaired his mental capability to the extent that he would be unable to secure or follow substantially gainful employment. In this case, the Veteran has shown the mental capability to secure and follow substantially gainful employment as demonstrated by testing measures that revealed: high average to above average intellectual ability; ability to perform jobs in all general occupational areas, to include in professional technology, professional arts, and professional service-related areas; above average overall computer user skills; and aptitude and analytic abilities. The evidence of record does not demonstrate that such mental capabilities are impaired by the Veteran's service-connected bilateral knee disability and/or right foot disability. In considering the Veteran's physical ability to engage in substantially gainful employment, both the lay and medical evidence of record supports a finding that the Veteran is not capable of employment requiring heavy lifting, carrying, kneeling, squatting, climbing, or prolonged sitting or standing due to his service-connected bilateral knee disability and service-connected right foot disability. In light of such limitations, the Board finds that physically demanding employment, to include the Veteran's previous occupation as a printing press operator, is not realistically within the Veteran's physical capabilities. However, the Board finds that the particular facts in this case demonstrate that the Veteran has additional occupational experience, education, skills, and training that are suitable for substantially gainful employment outside of the print industry, and that such employment is realistically within the Veteran's physical and mental capabilities. Here, the Veteran reported approximately eight or more years of occupational experience as a private business owner, including the management of independent contractors. The Veteran also reported approximately 10 years as a print broker. While the Veteran gained such experience in the print industry, the Board finds it reasonable to conclude that business and employee managerial skills, negotiation skills, and customer service skills would be transferrable to substantially gainful employment outside the print industry that are within the Veteran's physical capabilities and mental capabilities. As noted by the December 2002 vocational specialist, the Veteran's service-connected conditions are consistent with sedentary work (such as employment in information technology) that afford the Veteran the ability to sit and stand as necessary. Additionally, the evidence obtained through vocational counseling demonstrates that the Veteran has the physical and mental capabilities to secure and follow employment in professional technology, professional arts, and professional service-related areas. The Board also observes that the Veteran has education, training, and experience as a trumpet musician, and a music instructor. While the Veteran's service-connected physical disabilities would limit him from marching, the evidence of record does not demonstrate that his service-connected disabilities would preclude him from substantially gainful employment teaching or playing music. The Veteran simply reported that he was no longer interested in the music field. In the August 2021 Memorandum Decision, the Court determined that remand was required for the Board to address the vocational counselor's opinion that the printing industry was in a "slump," and whether the diminished opportunities caused by the slumping industry was the reason why the Veteran had only been able to engage in marginal employment during the period on appeal. The Court also found remand was necessary for the Board to address whether the Veteran's self-employment during the appeal period qualified as a protected work environment for TDIU purposes. The September 2002 vocational counselor reported that the printing industry was in a slump in response to the Veteran's reported desire to seek self-employment in an expanded role as a print job broker. However, the 2002 vocational assessment in no way suggested that the Veteran was limited to occupations in the print industry based on his education, training, and employment history. To the contrary, the vocational counselor reported that the Veteran demonstrated the ability to perform jobs in all general occupational areas. The vocational counselor reported that the Veteran's prognosis for returning to gainful employment was guarded because of the Veteran's "inconsistent statements, poor presentation and apparent lack of motivation." Such limitations in securing and following substantially gainful employment are unrelated to the Veteran's service-connected bilateral knee disability and/or right foot disability. With respect to whether the Veteran's self-employment during the appeal period qualified as a protected work environment for TDIU purposes, the Board initially notes that the decision herein has already determined that the Veteran earned no more than marginal income during the period on appeal. However, in compliance with the August 2021 Memorandum Decision, the Board has considered whether the Veteran's self-employment during the appeal period qualified as a protected work environment for TDIU purposes. The term "protected" environment has not been defined by VA regulation. Within the context of awarding a TDIU, a benefit specifically meant to compensate those with earning capacity below the poverty threshold due to service-connected disabilities, a "protected" environment exists when one's employment is established to save the individual from likely financial loss rather than based on merit alone. See Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/persistent (last viewed March 24, 2022) (generally defining the term protect as "to save from contingent financial loss"). Insofar as the April 2021 Appellant Brief argued that the Veteran is only capable of employment in a protected environment, the Board finds that this assertion is not supported by the evidence of record. Contrary to the assertion that the Veteran is not trained or capable of any other profession than the marginal employment he had as a printing broker, the evidence discussed above demonstrates that the Veteran has the physical and mental capabilities to secure and follow employment in other areas consistent with the limitations resulting from his service-connected disabilities. Here, the evidence demonstrates that the Veteran's inability to secure and follow substantially gainful employment are due to his poor presentation and attitude. See also September 2002 vocational assessment (Veteran had not been seeking employment and expressed little interest in returning to work for anyone else). While the December 2020 Appellant Brief argued that accommodations for the Veteran's service-connected disabilities would not be available in a normal working environment, the December 2002 vocational specialist determined that the Veteran's service-connected conditions are consistent with sedentary work. Based on the Veteran's employment history, education, skill, training, and physical and mental abilities discussed above, the Board finds that the Veteran is not limited from sedentary-type (or seated, non-physical) work in professional technology, professional arts, and/or professional service-related areas that would be able to accommodate his service-connected disabilities with the opportunity to sit and stand as needed. The evidence of record supports a finding that, unrelated to the Veteran's service-connected bilateral knee disability and/or right foot disability, it is the Veteran's poor presentation and attitude that have limited his ability to secure and follow substantially gainful employment. The December 2020 Appellant Brief also argued that the Veteran's Social Security Administration (SSA) disability award was favorable evidence that the Veteran was unable to obtain and maintain any employment, to include sedentary employment. See June 2004 SSA records; see also Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (although SSA decisions are not binding on VA, they may be relevant evidence with regard to a determination of total and permanent disability). In this case, the Board notes that the medical records upon which the SSA disability determination was made are not available because they have been destroyed. See January 2016 SSA National Record Center reply. The Board finds it credible that the Veteran's service-connected bilateral knee disability and right foot disability would have at the very least contributed significantly to an award of SSA disability benefits. However, the Board notes that at the time of the 2003 SSA disability award, the Veteran was diagnosed with other nonservice-connected disabilities, to include heart disease, loss of motion of all left fingers, and residuals of hepatitis. Additionally, the Veteran has indicated that, although he was unable to maintain employment in the print industry due to his service-connected disabilities, he was unable to secure and follow any substantially gainful occupation due to his nonservice-connected bilateral hand and bilateral shoulder condition. See September 2017 VA Form 21-8940. The Board finds that such evidence does not support the assertion that the Veteran's SSA disability award (for which the medical records that formed the basis of the decision are not available) demonstrates that he was unable to obtain and maintain any employment, to include non-physical employment, due solely to his service-connected bilateral knee disability and right foot disability. Insofar as the December 2020 Appellant Brief asserted that the 2002 vocational assessments did not accurately reflect the Veteran's disability picture for the period under review, the Board acknowledges that the evaluation of the Veteran's service-connected disabilities has fluctuated since the Veteran was evaluated by vocational counselors in 2002. However, the functional impairment due to the Veteran's service-connected bilateral knee disability and right foot disability for the period under review is consistent with the reported functional impairment in 2002. In 2002, and during the period under review, the Veteran's service-connected disabilities have limited his ability to walk, sit, stand, climb, stoop, kneel, or carry heavy objects. Such functional impairments were taken into consideration during the period under review. As discussed above, the Board finds that physically demanding employment, to include the Veteran's previous occupation as a printing press operator, is not realistically within the Veteran's physical capabilities due to his service-connected bilateral knee disability and right foot disability. However, for the reasons discussed at length above, the Board finds that the Veteran has additional occupational experience, education, skills, and training that are suitable for substantially gainful employment outside of the print industry, and that such employment is realistically within the Veteran's physical and mental capabilities. (Continued on Next Page) In sum, the Board finds the evidence persuasively weighs against a finding that the Veteran's service-connected bilateral knee disability and right foot disability render him unable to secure or follow substantially gainful employment. Accordingly, entitlement to a TDIU is denied. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.