Citation Nr: 22018447 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 08-25 628 DATE: March 29, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing and following substantially gainful employment consistent with his educational and occupational experience. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.10, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to April 1989 and January 1991 to March 1991. This matter comes on before the Board of Veterans' Appeals (Board) following an August 2006 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2020 decision, the Board denied the Veteran's claim of entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 Order, the Court set aside the Board's September 2020 decision pursuant to a Joint Motion for Remand (JMR) and remanded the case to the Board for readjudication in compliance with the JMR. Entitlement to TDIU is denied. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran is rated at 50 percent for a skin disability and 30 percent for a depressive disorder. The Veteran's combined disability rating is 70 percent. The Veteran meets the criteria for a TDIU rating under 4.16(a) throughout the pertinent time period. Thus, the only remaining question is whether the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. The central inquiry for a TDIU claim 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 sole fact that the Veteran was unemployed or has difficulty obtaining employment is not enough. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). The term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component means 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 non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. §4.16(a). Marginal employment, which exists when annual income does not exceed the poverty threshold for one person as set by the U.S. Department of Commerce, does not equate with a substantially gainful occupation. 38 C.F.R. § 4.16(a); Faust v. West, 13 Vet. App. 342, 356 (2000). Pertinent to the Veteran's educational history, he has a high school diploma. A September 2003 psychological evaluation also reports that the Veteran attended college for a year and a half. Turning to his work history, the Veteran is currently disabled as defined by the Social Security Administration (SSA). An August 2008 record indicates that Veteran had not worked since leaving the military in 1991 and is "on disability" for hypertension and arthritis. In the September 2003 psychological evaluation, the Veteran was evasive about his work history and reported he could not work because of "health problems." Separately, in VA examinations and documents filed with SSA, the Veteran reported working at a sign manufacturing company until 2000. The Veteran reported that he stopped working in December 2000 due to pain and swelling in his ankles, knees, and shoulders caused by arthritis. The Veteran has not worked since that time. Regarding the Veteran's actual occupational impairment due to his service-connected disabilities, the Veteran last attended a VA examination for his skin disability in December 2017. At the December 2017 VA examination, the VA examiner opined that although the scarring disfigurement does not cause a functional impairment it impacts his ability to obtain employment in the public arena due to the negative response of his scarring disfigurement. A December 2015 VA examination indicated that his skin disability does not impact his ability to work. Regarding the Veteran's depressive disorder, the VA examinations of record are from March 2013 and May 2006. The March 2013 VA examiner reported that the Veteran was last worked 7 or 8 years prior to the March 2013 VA examination and that he currently was unemployed and received Social Security Disability Insurance due to "physical problems." In the May 2006 VA examination, the Veteran reported that he previously worked for a sign manufacturing business and that he was forced to quit his job due to chronic pain and limitation of movement caused by musculoskeletal problems. The May 2006 VA examiner further reported that the Veteran's mental health was not the cause of his reported inability to maintain gainful employment. The Board acknowledges the Veteran's reported symptoms of anxiety and dysphoria which increased during stressful circumstances, being frequently distracted and experiencing decreased efficiency and productivity along with disturbances in mood and motivation during the day, difficulty initiating and maintaining sleep during the night, and difficulty establishing and maintaining effective work and social relationships, and that the Veteran's psychiatric symptoms affect his earning capacity, which is reflected in his 30 percent disability rating for his psychiatric disability. Notably, however, the March 2013 VA examiner opined that the Veteran's mental health impairment was manifested by no more than a mental condition that was formally diagnosed, but the symptoms are not severe enough either to interfere with occupational and social functioning or required continuous medication. The Board also recognizes that a November 2003 SSA Office of Hearings and Appeals decision and an April 2002 SSA disability determination letter indicated that the Veteran had a secondary diagnosis of anxiety disorder and depressive disorder. However, in a March 2002 psychiatric report by Dr. S.C., the Veteran indicated that he was unable to work due to arthritis. The remaining evidence of record, including the VA examination reports, additional documents on file with SSA, and the Veteran's own statements do not indicate that his psychiatric disability renders him unable to secure and follow substantially gainful employment consistent with his education and occupational experience. In a May 2010 VA examination related to several claimed disabilities, the Veteran reported that he was unemployed for five to 10 years because he could not stand for prolonged periods. In summary, the Veteran's VA examinations do not show that his service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his educational and occupational experience. The Veteran's VA treatment records also do not show that his service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his educational and occupational experience. An August 2008 VA treatment record indicates the Veteran had not worked since leaving the military in 1991 and is "on disability" for hypertension and arthritis. Like arthritis, the Veteran is also not service connected for hypertension. A report of an examination conducted by Dr. W.K. in September 2003 indicates that the Veteran's ankle and knee disabilities impair his ability to do activities such as sitting, standing, or walking. The Board has considered whether the combined effects of the Veteran's psychiatric and skin disabilities preclude him from securing and following substantially gainful employment consistent with his educational and occupational experience. Regarding the Veteran's skin disability, the evidence of record indicates that while this disability may affect the Veteran's earning capacity, including the December 2017 examiner's opinion that it may affect his ability to obtain employment in a public facing job, the evidence of record indicates that the Veteran's skin disability does not preclude him from securing and following substantially gainful employment consistent with his educational and occupational experience. Regarding the Veteran's psychiatric disability, as discussed above, the evidence indicates that his psychiatric disability impacts his earning capacity, but it does not indicate that his psychiatric disability renders him unable to secure and follow substantially gainful employment consistent with his education and occupational experience. Therefore, even considering the combined effect of his service-connected disabilities, the Veteran is not precluded from securing and following substantially gainful employment consistent with his education and occupational experience. Additionally, even when considering the Veteran's educational background, the evidence simply does not show that the Veteran is unable to work in any form of substantial gainful employment as a result of his service connected disabilities. Indeed, there is no indication in the examination reports or other evidence of record that there are any restrictions on the Veteran's ability to accomplish tasks in any setting as a result of the service-connected disabilities such that he would not be able to maintain substantial gainful employment. Rather, the evidence indicates that the Veteran has been unable to work due to pain and swelling in his non-service connected ankles, knees, and shoulders caused by arthritis. The Veteran's multiple reports in VA treatment records, VA examinations, documents filed with SSA, the March 2002 psychiatric evaluation by Dr. S.C., and the report of a September 2003 physical disability evaluation conducted by Dr. W.K., all support the conclusion that the Veteran is unable to work because of arthritis pain in his knees, ankles, and shoulders. (Continued on the next page) The Board recognizes that the Veteran's service-connected disabilities may cause some impairment to his occupational abilities, as is represented by his assigned disability ratings, such impairment does not preclude substantially gainful employment consistent with his education and occupational experience. ARIF SYED Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.