Citation Nr: 22049035 Decision Date: 08/29/22 Archive Date: 08/29/22 DOCKET NO. 11-07 101 DATE: August 29, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to August 19, 2016, is denied. FINDING OF FACT Prior to August 19, 2016, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW Prior to August 19, 2016, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1998 to May 2008. The appeal was previously remanded in February 2022 for additional development. The claim has since been returned to the Board for further appellate review. The Board finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In an April 2022 rating decision, the RO granted service connection for bilateral radiculopathy of the lower extremities, effective August 19, 2016. The RO noted that this was considered a full grant of the benefits sought on appeal. The Veteran has not expressed disagreement with this rating decision. The August 2021 rating decision represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to a TDIU Applicable Law VA will grant TDIU when the evidence shows that a veteran is unable, by reason of service-connected disabilities, to secure or follow any form of substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such 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. C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Discussion Here, the Veteran has more than one service-connected disability, and a combined rating of 90 percent from May 16, 2008, to August 19, 2016. Thus, the percentage requirements for a TDIU were met during the period under review. 38 C.F.R. § 4.16(a). In his August 2009 TDIU application (VA Form 21-8940), the Veteran wrote that he last worked full-time in May 2008. He indicated that he became too disabled to work and his disabilities first affected full-time employment in November 2008. He identified that his service-connected migraines and left shoulder disability as preventing him from securing or following any substantial gainful employment. He indicated he last worked as a mechanic in November 2008. He is a high school graduate and he noted that he is enrolled in community college through a vocational rehabilitation program working towards a bachelor's degree in medicine. He explained that he is attending school online which allows him to work at his own pace when he is not having migraines. He also noted that he cannot do any lifting due to his shoulder. In determining whether the Veteran is entitled to a TDIU rating, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). In determining whether the Veteran can obtain and maintain substantially gainful employment, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) listed some factors the Board may consider to guide its determination. In Ray, the Court held that the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16(b) has both an economic and a noneconomic component. Ray, 31 Vet. App. at 73. The Court further held that "[i]n determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to": (1) The veteran's history, education, skill, and training; (2) Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) Whether the veteran has the mental ability to perform the activities required by the occupation at issue, in which factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Additionally, the Court held that, "By discussing [the] potentially relevant factors, we don't create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it." Id. at 62. For the following reasons, the Board finds that the most persuasive evidence weighs against the claim that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities, and as such a total disability rating is not warranted on this basis. In addition to the many years of service in the Navy, the Veteran worked full-time as a mechanic for approximately 10 years from September 1998 to May 2008. Also, his resume notes that he was a student nurse from spring 2013 to May 2015. The Veteran reported on his TDIU application he is continuing to pursue a bachelor's degree in medicine. A December 2016 unofficial transcript documents the Veteran has completed several college courses towards his Bachelor of Science Nursing (BSN) program. In an August 2017 VA examination for headaches the examiner found his headaches impacted his ability to work, explaining that his has difficulty with acute exacerbation. In an August 2017 examination for his back the examiner found his back impacted his ability to work, noting that the Veteran cannot lift. In a March 2010 letter Dr. R.S. wrote that the Veteran "does not have any disabilities that would prevent him from attending nursing school or engaging in a nursing career." Lastly, in a July 2020 VA treatment record the Veteran reported that his currently working in nursing. Although there are physical limitations from his currently service-connected disabilities, VA treatment and examination records show that those limitations are not of such a severity so as to preclude him from securing and following a substantially gainful occupation. Instead, the Veteran has extensive work history, education, skills, and training, and has successfully completed college courses and continues to pursue a bachelor's in nursing during this appeal. It is important to note that the assigned disability ratings in themselves are recognition of the average impairment in earning capacity that results from these disabilities. "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In other words, the Board does not dispute that the Veteran is significantly impacted by his service-connected disabilities and the functional impairment that they produce in his everyday life, including an occupational setting, as this impairment is the basis for the existing disability ratings and their associated compensation. However, the question here is whether those service-connected disabilities alone render the Veteran unable to secure or follow a substantially gainful occupation. To that end, the Board finds that the Veteran's ability to obtain a college degree demonstrated that he possessed the mental capacity to pursue substantially gainful employment. Indeed, the fact that the Veteran was able pursue the degree online suggests that while his service-connected disabilities precluded many physically demanding occupations, they did not preclude those which allow him to work from home on a computer. Indeed, his demonstrated ability to work from home, completing work when he was not having migraines, evinces his ability to have obtained substantially gainful employment in a consistent environment. In sum, the most probative evidence of record persuasively weighs against the claim of entitlement to a TDIU. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply and the appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.