Citation Nr: 25003733
Decision Date: 03/19/25	Archive Date: 03/19/25

DOCKET NO. 14-25 953
DATE: March 19, 2025

ORDER

Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) prior to January 1, 2020, is denied.

FINDING OF FACT

Prior to January 1, 2020, the Veteran's service-connected disabilities did not preclude him from securing or following substantially gainful employment consistent with his education and industrial background.

CONCLUSION OF LAW

Prior to January 1, 2020, the criteria for entitlement to a TDIU were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.25.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1998 to October 2008, which included combat in Iraq. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2013 by a Department of Veterans Affairs (VA) Regional Office.

This matter has a lengthy procedural history, including appeals to the United States Court of Appeals for Veterans Claims (CAVC), that is incorporated herein by reference. Addressing the most relevant procedural history, in February 2024 the Board remanded the claim of entitlement to a TDIU prior to June 7, 2021, for additional development. As additional development has been conducted to include verifying the Veteran's yearly income for the entire appeal period, the Board finds that there has been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted, when the case was previously before the Board, the claim was that of entitlement to a TDIU prior to June 7, 2021. As TDIU was granted from January 1, 2020 forward, representing a full grant of the benefits sought on for such period, the Board finds it appropriate to recharacterize the Veteran's claim as outlined within the Order section above.

Entitlement to a TDIU prior to January 1, 2020.

The Veteran seeks a TDIU prior to January 1, 2020. 

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. 

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, 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); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). 

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. "Employment in a protected environment" within 38 C.F.R. § 4.16(a) means "a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, 37 Vet. App. 111 (2024). 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).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

The Veteran has the following disabilities that are service connected: posttraumatic stress disorder with depressive disorder (hereinafter acquired psychiatric disorder) (rated 70 percent, from August 2010); tinnitus (rated 10 percent from August 2010); and obstructive sleep apnea (rated 50 percent from April 2018).

Based on the forgoing, the Veteran has one disability rated 60 percent or more for the entire period on appeal. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). 

For the reasons that follow, the Board finds that a TDIU prior to January 1, 2020, is not warranted.

The Veteran is a high school graduate with one year of college education which may include graduating from a construction trade school. The Veteran's employment history includes being a negotiator for an insurance company and a union painter. The Veteran indicates he was employed as a painter from June 2015 to November 2015, May 2016 to October 2016, February 2017 to May 2017, and May 2018 to September 2018. Prior to such time, the record indicates  he was a negotiator from December 2008 through September 2012. VA treatment records indicate the Veteran may have also worked as a union carpenter. VA treatment records further indicated the Veteran worked on and off for the period on appeal, often due to being a union painter getting laid off during the winter time. 

The Board notes in a February 2021 Board decision, "The Board acknowledges that he was enrolled in school to work as an electrician but that he was unable to finish his education due to interpersonal difficulties in school as a result of his PTSD." The Board shall not disturb such favorable determination herein. 

Social Security Administration (SSA) records indicate the Veteran's yearly income for the years 2010 through 2012 and 2014 through 2019 exceeded $20,000 each year. While SSA records indicate the Veterans earnings from 2013 only totaled $3,134, Internal Revenue Service (IRS) records indicate the Veteran's adjusted gross income for 2013 was $30,994. Based upon the foregoing, the Board finds the economic component of a TDIU was not met prior to January 1, 2020, as the Veteran's income exceeded that of the U.S. Department of Commerce as the poverty threshold for one person. Further, the Veteran has not asserted, nor does the record indicate, the Veteran was employed in a protected environment. The record does not show that the Veteran has worked in a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market.

The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of the Veteran's obstructive sleep apnea and acquired psychiatric disorder. In May 2018, the Veteran submitted a private medical examination report related to his obstructive sleep apnea in relation to his service connection claim for obstructive sleep apnea. The private medical examiner indicated the Veteran would have daytime fatigue, poor concentration, and difficulty completing tasks due to his obstructive sleep apnea. In July 2018, the Veteran was provided a VA examination related to his acquired psychiatric disorder. The VA examiner indicated the Veteran's sleep problems, "contributed to diminished job performance because he couldn't focus or he'd fall asleep while working."

The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of the Veteran's acquired psychiatric disorder. The Veteran was provided VA examinations in May 2012, April 2013, and July 2018. During the May 2012 VA examination, the Veteran indicated he was working but reported his job was stressful and he was afraid of getting laid off. The May 2012 VA examiner indicated the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. However, the May 2012 VA examiner indicated the Veteran's acquired psychiatric disorder caused occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational task only during periods of significant stress or the Veteran's symptoms were controlled by medication.

The April 2013 VA examiner indicated the Veteran was not currently working but was attending school to become an electrician. The VA examiner indicated the Veteran was terminated from his employment after requesting an employment accommodation to assist with stress and productivity. The April 2013 VA examiner indicated the Veteran's symptoms included chronic sleep impairment, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. Regarding the Veteran's recent job loss, the April 2013 VA examiner indicated the Veteran's "[D]ifficulties at work appeared normative given the situation. Since losing his last position the veteran has begun school and reports he is doing well, with no significant impairment in his educational functioning. Given this information it is less likely than not (less than 50% probability) that the veteran's current mental health symptoms render him unable to secure or maintain substantially gainful employment." Further, the April 2013 VA examiner indicated the Veteran's acquired psychiatric disorder caused occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational task only during periods of significant stress or the Veteran's symptoms were controlled by medication.

The July 2018 VA examiner did not indicate whether the Veteran was currently working. However, the July 2018 VA examiner indicated, "His sleep problems contributed to diminished job performance because he couldn't focus or he'd fall asleep while working. He was fired from his job with BlueCross/BlueShield because he was putting off tasks that were time-sensitive or he had trouble remembering procedures. He also engaged in arguments with co-workers." The July 2018 VA examiner indicated the Veteran's symptoms included depressed mood, anxiety, suspiciousness, mild memory loss such as forgetting names, directions, or recent events, and disturbances of motivation and mood. The July 2018 VA examiner indicated the Veteran's acquired psychiatric disorder caused occupational and social impairment with reduced reliability. 

VA treatment records further indicate the Veteran's service-connected conditions impacted his ability to work. However, for the period on appeal, VA treatment records generally indicated the Veteran reported his depression only made it "Not difficult at all" or "Somewhat difficult" to do his work, take care of things at home, or get along with other people. VA mental status examinations noted the Veteran was alert and oriented with good cognition and appropriate speech. 

In the Veteran's July 2013 Notice of Disagreement, he indicated that he lost a job due to his acquired psychiatric disorder as he was unable to perform under stress and he needed consideration for his disability. The Veteran further asserted he was unable to find a job because searching for jobs caused anxiety and he was unable to take his medication as he was afraid it would show up on a drug test. In June 2021, the Veteran also provided a statement regarding his claim. The Veteran indicated he had not worked as a painter "in over 2 years." The Veteran asserts prior to such time, he was unable to keep steady employment due to conflicts at work and an inability to stay focused due to a lack of sleep. The Veteran indicated he would not correct his doctor when she would indicate the Veteran was a painter as he had corrected her several times in the past, but his file would not be updated and it "is frustrating to have to spend 5 min explaining my situation every time I see her."

In the September 2018 Informal Hearing Presentation, the Veteran's representative asserted the Veteran is unable to stay awake during normal work hours due to issues with his obstructive sleep apnea and acquired psychiatric disorder. The Veteran's representative also asserted the Veteran was studying to become an electrician but "only completed one year of education due to difficulties with interpersonal relationships at school."

As noted, the record indicates the Veteran was gainfully employed earning an income that exceeded that of the U.S. Department of Commerce as the poverty threshold for one person until 2020 and the economic component of a TDIU has not been met. The Board also finds the non-economic component was also not met prior to January 1, 2020, as the Veteran's service-connected disabilities did not preclude the ability to secure and follow a substantially gainful occupation consistent with the Veteran's education, skills, training, and work history.

While the Veteran's symptoms impacted his ability to secure and follow a substantially gainful occupation, they did not preclude him from doing so. Notably, the Schedule for Rating Disabilities is based upon "percentage ratings represent as far as can practicably be determined the average impairment in earning capacity...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. Accordingly, some level of occupational impairment is contemplated by the rating schedule. 

At this time, the Board acknowledges the Veteran's assertions within his July 2013 Notice of Disagreement that he was unable to find a job due to the anxiety of searching for jobs and an inability to take his medications as such may appear on a drug test. The Board further acknowledges the Veteran's representative's assertion that the Veteran was unable to complete more than one year of college due to difficulties with interpersonal relationships at school. VA treatment records from a short time after the Veteran's statement indicate the Veteran was employed as a union painter. See April 2014 VA Treatment Note. Further, IRS tax records indicate the Veteran was employed and had an adjusted gross income of over $30,000 for 2013. Accordingly, while the Board acknowledges the Veteran experienced difficulty while searching for a job in 2013 and did not finish his electrician program, he was able to find employment as a union painter shortly after the July 2013 statement was made. The Board notes a period of time from September 2012 through 2013 in which the Veteran was not employed. However, the Veteran was asked on numerous occasions to verify his employment and income for the entire period on appeal and has not provided all the requested information. Accordingly, the Board finds that the duty to assist has been fulfilled in this regard. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence); See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (a remand is not warranted when further development would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).

While the Veteran contends he was unable to secure and follow a substantially gainful occupation, the record reflects otherwise. Notably, the Veteran and his representative's statements regarding the Veteran's work history are inconsistent with the other evidence of record. The Veteran asserts he was unable to follow a substantially gainful occupation, but the record indicates the Veteran was employed on and off for the entire appeal period. Further, the record indicates that the Veteran was employed at least three times with the same painting company from 2015 through 2018. See June 2021 Veteran's Application For Increased Compensation Based On Unemployability. VA treatment records indicate that when the Veteran was not employed, being laid off in the winter months was due to the nature of his work and not due to his service-connected disabilities. See February 2020 VA Treatment Note. Further, during the appeal period, VA treatment records indicate the Veteran reported his acquired psychiatric disorder made it "Not difficult at all" or "Somewhat difficult" to do his work, take care of things at home, or get along with other people. While the Veteran asserted in his June 2021 statement that he had not worked as a painter in over two years, the Veteran's Application for Increased Compensation Based on Unemployability, received the same day as the Veteran's statement, indicates the Veteran's total earned income for the prior 12 months was $30,000. The Veteran further indicated he was last employed in 2018. However, SSA records indicate the Veteran was employed through 2019 and his earnings taxed for Social Security in 2019 was $31,877. As the Veteran's statements regarding his work history are inconsistent with the other evidence of record, the Board finds such statements to not be credible and affords them no probative weight. 

The Board acknowledges the Veteran reported to the July 2018 VA examiner he was terminated from his negotiator position because "he was putting off tasks that were time-sensitive or he had trouble remembering procedures. He also engaged in arguments with co-workers." However, in April 2013, the Veteran reported he was terminated from his negotiator position after he was promoted, and his production requirements were doubled. The Veteran indicated he felt he was shutting down and requested an accommodation and was terminated. The Veteran did not indicate he got into arguments with co-workers at such time. Based upon the foregoing, the Board affords the Veteran's statements to the July 2018 VA examiner little probative weight as they were made five years after his termination and are inconsistent with the statements he made to the VA examiner shortly after his termination. The April 2013 VA examiner also indicated, "Further, his description of his difficulties at work appeared normative given the situation." Accordingly, the Board affords great probative weight to the April 2013 VA examiners opinion and analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). 

Based upon the foregoing, the Board finds the Veteran's service-connected disabilities did not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. Even though the Veteran's acquired psychiatric disorder and obstructive sleep apnea caused sleep disturbances and associated symptomology, VA treatment records generally indicate the Veteran was fully oriented, alert, able to communicate, was well groomed, and insight and judgment were fair. Further, while the Veteran has limited educational history and work experience, such history and symptomology related to his service-connected disabilities would not preclude him from securing substantially gainful employment in an unskilled labor occupation. Notably, for the period on appeal, the Veteran was employed in such position. 

The Board finds that the physical and mental impairment associated with the Veteran's service-connected disabilities did not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the evidence of record persuasively weighs against the claim. Consequently, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

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Accordingly, a TDIU prior to January 1, 2020, is not warranted.

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Hager, William J.

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.