Citation Nr: 22040366 Decision Date: 07/14/22 Archive Date: 07/14/22 DOCKET NO. 16-50 282 `DATE: July 14, 2022 ORDER Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities have not precluded him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1985 to July 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). I. Preliminary Matters This appeal has a long procedural history and has been before the Board previously. Most recently, in July 2021, the Board remanded the claim on appeal. The RO substantially complied with the remand instructions regarding that issue. See Stegall v. West, 11 Vet. App. 268 (1998). A service connection claim for a respiratory disability, to include allergic sinusitis and rhinitis, was previously on appeal before the Board. In a March 2022 rating decision, the RO granted service connection for allergic sinusitis. Therefore, that issue is no longer in appellate status. The Veteran has a combined, 100 percent disability rating effective October 21, 2019. However, this does not necessarily moot the issue of entitlement to a TDIU from that date. Buie v. Shinseki, 24 Vet. App. 242 (2011) (finding that TDIU based on a single disability may satisfy the "single disability" requirement for special monthly compensation (SMC) under 38 U.S.C. § 1114(s)); Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (holding that TDIU is not mooted by the award of a 100 percent schedular rating per se). SMC under subsection (s) is payable where the veteran has a single service-connected disability rated as 100 percent and, (1) has either additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350. Thus, pursuant to Bradley and Buie, VA has a duty to maximize benefits, and therefore must consider the TDIU issue for the entire appeal period, to include whether a TDIU based on a single disability is warranted. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist since the July 2021 Board remand. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board's reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The appellant must not assume the Board has overlooked evidence not explicitly discussed herein. II. Entitlement to a TDIU is denied. The Veteran seeks entitlement to a TDIU based on multiple service-connected disabilities. See, e.g., February 2016, April 2016, May 2016, July 2016, April 2017, May 2017, September 2021 VA Forms 21-8940. He alleges he was working only sporadically from 2018 to 2021, when he was most affected by his service-connected disabilities. See May 2022 Appellate Brief. When the veteran's schedular rating is less than total, a total rating based upon unemployability may nonetheless be assigned. If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. See 38 C.F.R. § 4.16(a). Here, the Veteran has met the percentage thresholds for entitlement to a schedular TDIU throughout the appeal period because he had a combined rating of at least 70 percent and at least one service-connected disability rated 40 percent or more (including sleep apnea, rated 50 percent from August 1, 2009). In order to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a) (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment cannot be considered substantially gainful employment. Generally, marginal employment exists when a veteran's earned annual income does not exceed the Federal poverty threshold for one person. 38 C.F.R. § 4.16(a). In this case, the Veteran reported that his education is through four years of college. See, e.g., September 2021 VA Form 21-8940. He described himself as an above-average student and stated that he graduated high school in 1984. See September 2019 private psychological report (received in November 2019). The Veteran submitted several applications for TDIU. In an April 2016 application, he stated that he becomes easily irritated and was having trouble with his supervisors. In May 2016, he stated that he has a hard time staying focused and concentrating. He also described physical symptoms and functional impairments that he attributed to various service-connected disabilities. In July 2017, he stated that he was having difficulty adjusting his schedule, his fatigue has diminished his abilities to complete the easiest tasks, and his anxiety makes it difficult to deal with people. In his August 2016 VA Form 9, the Veteran described symptoms and impairments including pain, the inability to sit or stand for long periods of time, the inability to concentrate, the inability to do heavy lifting, fatigue, and irritability, which he attributes to his service-connected disabilities. He also reported that at that time, he had been applying for jobs since 2015 and he had not yet gotten an interview. In a March 2017 statement, the Veteran stated he has been trying to find employment, but no one wanted to hire a 90 percent disabled veteran. He stated he has applied for jobs since 2015 but has not obtained any interviews. In his April 2017 application for TDIU, the Veteran stated that a combination of his disabilities has impaired his ability to work, as he cannot get out of bed or he forgets his tasks. In his May 2017 application for TDIU, he contended his mental condition, back pain and fibromyalgia prevented him from employment. At the time, his highest education level was three years of college. He indicated he was last employed in 2015 as a staff officer, working for that employer since 2011. Social Security Administration (SSA) records include a November 2016 determination that the Veteran was not disabled. The Veteran was also found entitled and feasible for work in a January 2017 VA vocational counseling recordand it was noted he was placed in a plan to complete his degree so he could return to work. From 2016, the Veteran was pursuing his bachelor's degree in business administration, and he completed the degree in June 2019. VA treatment records dated April 2018 show the Veteran had been unemployed for a few years, but had started working the year prior doing background checks. Further, he was seeking a letter for work, as he was planning to work overseas for six months in November 2018. VA examinations show the Veteran's ability to work was functionally impacted to some extent by the mental and physical effects of various service-connected disabilities. Regarding mental functional impairments, the March 2016 and June 2017 VA mental disorder examiners found the Veteran's psychiatric disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The June 2017 VA mental disorder examination also noted the Veteran's psychiatric disability resulted in difficulty in adapting to stressful circumstances, including work or a work-like setting, and the Veteran reported that his disrupted sleep makes concentration and focus difficult. The December 2019 VA PTSD examiner found his psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran also reported difficulties with concentration and maintaining attention. However, he also stated that he had been employed as a verifying officer at an ID card facility for one year, and reported no occupational difficulties. The examiner noted that he previously was unemployed, but before that, he had been employed doing background investigations for one year. Regarding physical functional impairments, the March 2015 VA foot examiner noted the Veteran's hallux valgus deformity functionally impacted the Veteran's ability to work in terms of an unspecified amount of time lost from work in the past 12 months and pain. The March 2016 VA fibromyalgia examiner found this condition functionally impacted his ability to work because a work position should allow regular breaks and change of position from prolonged sitting, standing, or walking (every 1-2 hours). The June 2017 VA thoracolumbar spine examiner noted that the Veteran reported that he cannot sit, bend, squat or walk for long periods and needs to lie down. That examiner found that these symptoms will make it very difficult to function in an occupation environment that requires the Veteran to be mobile, lift items, sit or stand for periods of time. The June 2017 VA fibromyalgia examiner noted that per the Veteran, his fatigue and body aches made it difficult for him to stand in the same position for a long period, and the examiner found that his severe fatigue impacts his ability to work in a regular occupation. The January 2020 VA elbow and thoracolumbar spine examiners found that these conditions impacted his ability to perform occupational tasks, noting "no lifting or carrying." A December 2020 VA audiological examination noted regarding the functional impact of the Veteran's tinnitus that this condition was annoying. A September 2019 private psychological report indicates that the Veteran worked as a security specialist from 2011 to 2015 and subsequently worked approximately a year and a half as a private contractor. The Veteran reported he is currently employed by the U.S. Navy in a contracted position involving security identification cards, a position he had planned to remain in for an indefinite period. Multiple VA examinations throughout the appeal period competently found that various service-connected physical disabilities did not functionally impact the Veteran's ability to work. See, e.g., April 2014 VA foot examination; April 2015 VA eye examination; March 2016 VA foot, thoracolumbar spine, elbow, neck, and urinary tract examinations; June 2017 VA urinary tract and neck examinations; December 2019 VA eye examination; January 2020 VA urinary tract, hand, foot, and headache examinations; February 2020 and December 2021 sinusitis/rhinitis examinations. In his most recent application for TDIU received in September 2021, the Veteran indicated he is currently working in security with the Department of Navy and has been since 2021. He stated that he had applied for this position in December 2020. He described this as a full-time, office position in which he earns $92,000 per year. He stated that the most he had ever earned in one year was $92,5000, which he had earned in 2020 / 2021 as a security specialist. Moreover, he stated that he had earned $36,000 in the past twelve months and currently earns $4,500 per month. He also reported prior, full-time positions as an office employee from 2016 to 2017 (in which he earned $40,000 per year), and as a background investigator from 2018 to 2019 (in which he earned $44,000 per year). The Board finds that the most probative evidence of record summarized above persuasively weighs against entitlement to a TDIU. The Veteran's service-connected disabilities have not prevented him from performing the physical and mental acts required to obtain and sustain substantially gainful employment. He has been gainfully employed for much of the appeal period. While he has experienced periods of unemployment, during those periods, he was pursuing higher education. The Board does not doubt that some of his service-connected disabilities have functionally impacted his ability to work during the appeal period, as detailed above. However, his current schedular disability ratings for each of his service-connected disabilities contemplate such functional and occupational effects, which fall short of unemployability. See generally 38 C.F.R. § 4.1 ("The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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.") In sum, despite such functional impairments, the weight of the most probative evidence does not demonstrate the inability to secure or follow a substantially gainful occupation due to service-connected disabilities at any time during the appeal period. Further, throughout the appeal period to include from October 21, 2019, when the Veteran had a 100 percent combined, schedular evaluation the record does not show that he was unemployable as a result of a single service-connected disability. Indeed, he consistently attributed his alleged unemployability to multiple service-connected disabilities. See, e.g., February 2016, April 2016, May 2016, July 2016, April 2017, May 2017, September 2021 VA Forms 21-8940; May 2022 brief (alleged he was out of work for six months in 2021 due to multiple service-connected disabilities). In summary, the Veteran does not contend and the evidence summarized above does not show that a single service-connected disability rendered him unable to secure or follow a substantially gainful occupation at any relevant time. As the most probative evidence of record persuasively weighs against entitlement to a TDIU, the benefit-of-the-doubt rule does not apply. Thus, the claim is denied. R. JANOFSKY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.