Citation Nr: 25005571 Decision Date: 04/24/25 Archive Date: 04/24/25 DOCKET NO. 18-09 847 DATE: April 24, 2025 ORDER Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) as of September 12, 2012, and prior to March 1, 2020, is granted. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) as of March 1, 2020, is denied. FINDING OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the evidence establishes that the Veteran was not able to secure or maintain substantially gainful employment due to service connected disabilities as of September 12, 2012, and prior to March 1, 2020. 2. As of March 1, 2020, the Veteran was substantially and gainfully employed and has maintained that employment successfully. That employment is not sheltered employment. CONCLUSION OF LAW 1. The criteria for entitlement to TDIU as of September 12, 2012, and prior to March 1, 2020, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16. 2. The criteria for entitlement to TDIU as of March 1, 2020, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Regional Office of the Department of Veterans Affairs (VA), which is the Agency of Original Jurisdiction (AOJ). In November 2020, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. A March 2023 Board decision denied entitlement to TDIU prior to January 26, 2011, and as of September 12, 2012. The Veteran appealed the March 2023 Board decision to the United States Court of Appeals for Veterans Claims. In July 2024, the Court issued a memorandum decision vacating the March 2023 Board decision denying entitlement to TDIU as of September 12, 2012, and remanding the matter for further proceedings consistent with that decision. The Court decision required the Board to provide another hearing to the Veteran and inquire in detail about the Veteran's employment prior to 2016. In March 2025, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. 1. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) as of September 12, 2012, and prior to March 1, 2020. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. Substantially gainful employment is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment, where the earned annual income does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). TDIU may be assigned, if 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 service-connected disabilities, provided that if there is only one service-connected disability it is rated 60 percent or more; or if there are two or more service-connected disabilities at least one is rated 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities; or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system (e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); multiple injuries incurred in action; or multiple disabilities incurred as prisoner of war. A claim for a total disability rating based upon individual unemployability, presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31 (1994). In evaluating a Veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19. The fact that a Veteran is unemployed or has difficulty finding employment is not enough, as a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As of September 12, 2012, the service-connected disabilities included a gynecological disability rated 50 percent, a thoracolumbar spine disability rated 40 percent excluding a period of temporary total disability, a right foot fracture residuals disability rated 10 percent, left lower extremity radiculopathy rated 10 percent, right lower extremity radiculopathy rated 10 percent, and scars of the right foot and lower abdomen rated 0 percent. As of June 2014, service connection was established for a thoracolumbar spine scar rated 0 percent. As of October 2017, service connection was established for psychiatric disabilities rated together as 50 percent disabling. The Veteran's combined service-connected disability rating was 80 percent as of September 12, 2012, and 90 percent as of October 10, 2017, so the percentage requirements for the consideration of assignment of TDIU were met for the period now before the Board. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.25. March 2012 VA Medical Center records note that the Veteran was seen for supportive psychotherapy and medication management. The medical provider did not believe the Veteran could work, though the opinion is not supported by rationale and service connection had not been established for a psychiatric disability at that time. In an August 2012 letter, a VA medical provider opined that the Veteran was not employable due to service-connected disabilities resulting in need for chronic pain medication, frequent position changes, and elevated pain level. The letter also references psychiatric disabilities which were not service-connected at that time, but the provided opinion seems to be based on all service-connected physical disabilities taken together. At a February 2014 VA examination, an examiner opined that the Veteran's thoracolumbar spine disability would impact the Veteran's ability to work in a job requiring prolonged standing, sitting, walking, and heavy lifting. June 2014 VA Medical Center records note that the Veteran was seen for occupational therapy and demonstrated deficits in high level instrumental activities of daily living and functional mobility. The Veteran did not want to complete the occupational therapy session due to fatigue. At a September 23, 2021, VA examination, the Veteran reported that a right foot disability caused difficulty with sitting, and prolonged walking or standing. At a September 30, 2021, VA examination, the Veteran's psychiatric disabilities were found to manifest with occupational and social impairment with reduced reliability and productivity, with symptoms including depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances in motivation and mood. The examiner noted that the Veteran had secured employment as a peer support specialist working a 40-hour week and had sustained that employment for over 18 months at the time of the examination and received satisfactory performance reviews. The Veteran also reported getting along with coworkers and dealing with stressful situations in a professional manner and described feedback from customers as "great." The Veteran endorsed having chronic sleep issues and feeling tired but stated that those symptoms did not affect work performance significantly. The Veteran reported sometimes taking time off and calling it a "mental health day," but also reported barely taking time off and having only mild fluctuations of mood, which the examiner noted was in contrast to previous VA examinations. The examiner expressed some concern over whether the Veteran would be able to function as well without psychotropic medication and without being medication compliant. At a March 2025 Board hearing, the Veteran reported volunteering with VA starting in 2013, before becoming gainfully employed in February 2020. The Veteran indicated the volunteering hours were close to full-time, but with a lot of flexibility and endorsed working about three full-time weeks per month during that period and receiving an award for having reached 7500 volunteer hours. It is unclear from the record when that award was received, if it was for the entire period from 2013 to February 2020 or some point during that period. The Veteran endorsed working full-time successfully at VA as an employee from February 2020 onward. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran was unable to secure or maintain gainful employment as a result of the service-connected disabilities, including a thoracolumbar spine disability, a foot disability, a psychiatric disability, and lower extremity radiculopathy as of September 12, 2012, and prior to March 1, 2020. The record shows that before service connection was established for a psychiatric disability, the service-connected disabilities interfered with prolonged sitting, standing, and walking. After service connection was established, a psychiatric disability also resulted in substantial functional impairment. The Veteran reported that physical disabilities and a psychiatric disability manifested with symptoms requiring the Veteran to take off approximately one to two weeks per month from flexible volunteer work. The level of flexibility and time off necessitated by service-connected disabilities during that period of volunteer work show that the Veteran was not fully capable to maintaining gainful employment. The Veteran also reported feeling unemployable due to pain medication use. The weight of the evidence shows that multiple service connected disabilities contributed to render the Veteran unable to secure and maintain gainful employment. Accordingly, resolving doubt in the Veteran's favor, the Board finds that the service-connected disabilities prevented the Veteran from securing or following a substantially gainful occupation consistent with her education and occupational history as of September 12, 2012, and prior to March 1, 2020. Accordingly, TDIU is granted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16. 2. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) as of March 1, 2020. The Veteran reported having started full-time employment with VA at some point during February 2020. At a March 2025 Board hearing, the Veteran testified that past struggles with addiction disabilities were useful experience for the new employment, but stated unambiguously that the job was not a special position available to disabled Veterans. Unlike the flexibility available when the Veteran was volunteering, the weight of the evidence does not show that the Veteran's ability to accrue and use any type of leave is different from other employees. At a September 30, 2021, VA examination, the Veteran was noted to have held the same job for a year and a half and received satisfactory performance reviews and great feedback from customers. The Veteran acknowledged taking some time off, but the weight of the evidence does not show that the Veteran's federal job is sheltered employment as most federal employees can and do take some leave. The Board finds that the weight of the evidence shows that the Veteran is capable of securing and maintaining gainful employment as of March 1, 2020, and has actually secured and maintained gainful employment. The evidence does not show that the employment is less than gainful. Accordingly, the Board finds that the weight of the evidence is against finding that the Veteran was unable to secure and maintain gainful employment as of March 1, 2020. The Board finds that the evidence is not in approximate balance, and there is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claim for an entitlement to TDIU as of March 1, 2020, must be denied. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hood, 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.