Citation Nr: 25005182 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 17-29 583 DATE: April 16, 2025 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The evidence of record does not show the Veteran was unable to obtain or maintain gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army on active duty from October 1985 to October 1988 and November 1988 to November 1992. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board remanded the Veteran's appeal for an increased rating for his service-connected mental health condition. In May 2023, the Board granted the Veteran's increased rating claim for PTSD and awarded a 70 percent initial disability rating for the entire period on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2024, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the above matter to the Board. The parties to the JMPR agreed the Board failed to adjudicate the issue of entitlement to TDIU based on a protected work environment theory reasonably raised in the record. The portion of the Board's decision that denied entitlement to an initial disability rating higher than 70 percent for posttraumatic stress disorder (PTSD) was abandoned and the parties requested that the Court dismiss the appeal with respect to that issue. Pederson v. McDonald, 27 Vet. App. 276, 285 (2015). In September 2024, the Board remanded for further development. There has been substantial compliance with the remand directives, and the appeal is again before the Board. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As an initial matter, the Board acknowledges the Veteran's representative's September 2024 request of a copy of all Compensation and Pension examinations within the prior 12 months in connection with the Veteran's claim for benefits. In October 2024, the RO provided the Veteran's representative acknowledgment of receipt of the record request; however, the claims file is absent notice of completion of the record request. The Board notes the record is absent of Compensation and Pension examinations since completion of the September 2020 Privacy Act request, requesting Compensation and Pension Examinations and VA medical records located in the claims folder, to include within 12 months prior to the September 2024 record request. Thus, while the September 2024 Privacy Act request remained outstanding, there were no Compensation and Pension examinations records to provide, and therefore, the Veteran has not been prejudiced by the incomplete record request. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran contends that his service-connected mental health disorder barred him from substantially gainful employment. The Veteran continuously pursued his initial increased rating claim regarding his service-connected mental health condition since his November 2010 claim for compensation benefits. When a veteran files a claim for an increased rating, the veteran is presumed to be seeking the maximum benefit under any applicable theory, to include the entire period on appeal for a claim of TDIU. See AB v. Brown, 6 Vet. App. 35, 38 (1993). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, or a claim of TDIU is reasonably raised in the record, a claim for entitlement to TDIU will be considered to have been raised as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted; but, the veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The determination of whether a veteran is able to secure and follow a substantially gainful occupation involves both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73-74 (2019). "The economic component simply 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." Ray, 31 Vet. App. at 73. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment based on the veteran's physical and mental abilities for performing required occupational tasks at issue, as well as consideration of the veteran's employment history, education, skill, and training. Id. For the period on appeal, the Veteran is in receipt of a 70 percent disability rating for PTSD. Therefore, the Veteran meets the criteria for consideration of entitlement to TDIU on a schedular basis. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In December 2024, the Veteran submitted VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran stated that his PTSD prevented him from securing or following any substantially gainful occupation. The Veteran reported that he became too disabled to work and last worked in December 2023. The Veteran stated that his disability affected his full-time employment in November 2022. The Veteran reported that he worked as a teacher's aide or teaching assistant since March 1995. The Veteran remarked that he could not perform his daily duties at work due to his medication. Additionally, the Veteran reported that he suffered from a back injury with foot drop which caused him to fall. The Veteran reported that he completed two years of college education. The record contains the Veteran's additional employment information, submitted in February 2025 by the Veteran's previous supervisor. The Veteran's supervisor noted the Veteran worked full-time as a physical education instructor from March 1995 to December 2023. The Veteran was noted to have missed 12 days of work during the last 12 months of employment. As the evidence of record demonstrates the Veteran maintained full-time employment during the period on appeal, the Board must determine whether the Veteran had marginal employment due to his service-connected disability. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). For purposes of compensation of a TDIU, marginal employment is generally deemed to exist when a veteran's earned annual income does not exceed the poverty threshold established by the U.S. Department of Commerce, Bureau of the Census. 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. 38 C.F.R. § 4.16(a). A review of the Veteran's reported employment information submitted in the December 2024 VA Form 21-8940 and additional employment information, reveals the Veteran's reported income exceeded the poverty threshold for the period under review, as determined by the U.S. Department of Commerce, Bureau of the Census. See U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Accordingly, for the Veteran's full-time employment prior to December 2023 to be found marginal, the evidence must show on a facts-found basis that the Veteran worked in a protected environment. Records submitted by the Social Security Administration (SSA) from August 2024 show the Veteran reported his typical job duties as a teacher's aide focused on assisting teachers with classroom management; assisting with distribution of instructional materials; assisting with disorderly students and discipline; monitoring student safety; monitoring the lunch area; and guiding students during pick up and drop off. The Veteran also reported performing janitorial duties while on summer breaks for additional income on a part-time basis. The Veteran's February 2024 SSA disability application noted that he worked in education from March 1995 to February 2024. The Veteran reported severe limitations to his ability to work due to his back disability and nerve damage causing bilateral foot drop, eye disability, and PTSD. Turning to the Veteran's medical history, the Veteran's November 2010 VA mental health treatment note reported the Veteran missed work due to back pain and kidney infection. He noted that he was less depressed and not as irritable. The Veteran reported that he was back at work and stated that he was adjusting to being around the children all of the time, but he continued to feel that he really enjoyed his job. The record shows the Veteran had workplace accommodations associated with the management of symptoms of his PTSD. In January 2020 correspondence, the Veteran reported that he had access to a room where he could go and regroup when the Veteran thought he may have trouble handling a stressful situation. The Veteran reported in March 2023 correspondence that he had problems coping with symptoms while at work, including, anger, anxiety, and thoughts of hurting others. He noted that his boss was aware of his condition and allowed the Veteran to go into a private room to get away from people and situations. Here, the Board notes the Veteran's workplace accommodations but finds the evidence of record does not show the Veteran's regular full-time employment as a teacher's aide since March 1995 is marginal employment. The Veteran did not work in a family business. Further, there is no evidence that the Veteran was employed in a sheltered workshop with exemptions from labor standards or an expectation of limited unskilled occupational tasks. The Veteran reported that his job duties required him to perform complicated tasks, including assisting in managing students in a classroom and school setting, and the record shows the Veteran was relied upon to complete a number of job duties on a full-time basis. Although the Veteran reported that his mental health condition was known to his employer and supervisor, and he was able to take time to alleviate symptoms associated with his PTSD, there is no evidence of record showing the Veteran constantly required this accomodation or the Veteran was routinely unable to perform his job duties due to his PTSD symptoms without substantial workplace arrangements. There is no indication of significant work-time lost due to his mental health condition. The evidence of record shows the Veteran was able to maintain long-term employment despite his notable PTSD symptoms without protections more than would reasonably be allowed to any similarly situated person experiencing stress at work. Thus, the Board finds the Veteran's full-time employment as a teacher's aide at a public elementary school has not been shown to be marginal employment for the purposes of adjudication of the Veteran's TDIU claim. The evidence of record shows since December 2023, the Veteran has not been employed. Accordingly, the Board must consider whether the Veteran's service-connected mental health condition barred him from substantially gainful employment since December 2023. In the present case, although the Board acknowledges the severity of the Veteran's service-connected mental health condition, as well as the Veteran's physical symptoms and functional limitation of the Veteran's non-service-connected conditions, the evidence of record does not show the Veteran's service-connected disabilities barred the Veteran from all substantially gainful employment. The Veteran's January 2024 VA mental health treatment record shows the Veteran retired in December 2023. The Veteran noted his retirement had been helpful to his mental health. The Board acknowledges the March 2024 VA Mental Health Crisis Intervention note showing the Veteran called the crisis line reporting symptoms of homicidal thoughts and chronic pain. The Veteran reported thoughts of harming his roommate but denied a plan or intent to hurt him. The Veteran reported that he had been drinking and after his roommate took the Veteran's car without asking, the Veteran had specific thoughts of hurting the roommate when he returned. In January 2025, the Veteran underwent a VA mental health conditions examination. The VA examiner provided the diagnosis of PTSD causing 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 reported that he had some friends and that although the Veteran was easily angered and is prone to verbal altercations, he was generally able to get along with others. The Veteran reported that he worked for 28 years as a paraprofessional before retiring in December 2024. He reported that the students caused him stress at times. The Veteran also noted that he had some difficulty getting along with supervisors and coworkers. The examination showed the Veteran experienced symptoms of PTSD, including persistent negative emotional state, feelings of detachment or estrangement from others, and irritable behavior and angry outbursts. The VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep disturbance, and difficulty establishing and maintaining effective work and social relationships. The VA examiner opined that the Veteran's PTSD symptoms are likely to impair job performance under stressful working conditions; however, the Veteran would likely be able to satisfactorily perform solitary job duties under normal work conditions. The Board establishes that the Veteran's service-connected mental health disability has not barred the Veteran from the physical requirements of any occupational tasks or employment. Further, the Board finds the evidence of record does not show the Veteran's service-connected mental health condition prevented the Veteran from performing occupational tasks needed for non-physically demanding employment for unskilled positions. Moreover, the evidence of record does not show the Veteran's service-connected mental health condition barred the Veteran from employment in fields for which the Veteran had experience and training to perform. The Veteran's service-connected disability was not shown to cause significant vocational implications, including the Veteran's inability to keep pace in a typical work environment, show up and work on a reliable and consistent basis, or focus and attend to tasks and instructions. The Board recognizes the lay statements offered by the Veteran's previous co-workers, which noted that the Veteran was irritated at work and sometimes confrontational with staff and students. Further, although the Board acknowledges the Veteran's service-connected condition impaired the Veteran's ability to interact with people professionally, and that the Veteran's retirement had improved the Veteran's mental health condition, the Board finds the evidence of record shows the Veteran's mental health condition did not bar the Veteran from interacting with people in a vocational setting or fostering work relationships with supervisors and coworkers. Although some altercations were noted with faculty and students, the Veteran's mental health treatment record did not show the Veteran reported hostile interactions while working that would indicate the Veteran's complete inability to work around others. Further, while the Veteran's medical history showed symptoms including trouble dealing with stressful situations, the Veteran reported maintaining good relationships with friends and demonstrated his ability to cope with stressful workplace situations. Thus, the Board is sympathetic to the Veteran's impairment; however, the evidence of record does not show the Veteran's mental health symptoms on their own barred the Veteran from all work involving interaction with people on a professional basis. Additionally, the Board acknowledges the Veteran's reports of panic attacks and symptoms of his service-connected mental health condition forced the Veteran to retire early from his job that he maintained for over 20 years. The Board is sympathetic to the severity of the symptoms of the Veteran's psychiatric condition which caused the Veteran to separate from others at work to cope with workplace stressors. As noted above, TDIU is not awarded alone based on the fact that a veteran may be unemployed, has difficulty obtaining employment, or is unable to maintain his or her occupation. Thus, while the Veteran's service-connected disability clearly impaired his ability to manage stressful situations involving students and faculty in a school setting, the evidence of record does not show the Veteran was incapable of performing the physical and mental acts required by employment as a whole. See Van Hoose, 4 Vet. App. at 363. While the Veteran was unemployed during the period under review since December 2023, based on the Veteran's employment history, education, skill, and training, the evidence shows the Veteran's service-connected symptoms alone did not bar the Veteran from physical or non-physical occupational tasks, or unskilled employment in a work environment on his own or with limited interpersonal interactions. Ray, supra. The Board sympathizes with the Veteran's asserted difficulties with employment before and after the Veteran's retirement. The Board acknowledges the impairment caused by the Veteran's service-connected mental health condition and the assigned disability rating which is not at issue before the Board. Assigned ratings for the Veteran's service-connected disabilities in question represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such conditions in civil occupations. 38 C.F.R. § 4.1. Moreover, the record is absent of evidence of exceptional or unusual circumstances which would take the Veteran's case outside the norm of similarly rated veterans. Thus, VA has considered the Veteran's occupational impairment caused by the Veteran's service-connected mental health disability. Accordingly, the Board concludes the evidence of record is against a finding that the Veteran's service-connected disability barred him from securing and maintaining substantially gainful employment for the period under review, and entitlement to a claim of TDIU is denied. 38 C.F.R. § 4.16. Thus, as the evidence persuasively favors against a grant of TDIU, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. V. Bona 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.