Citation Nr: 25005686
Decision Date: 04/25/25	Archive Date: 04/25/25

DOCKET NO. 08-12 183
DATE: April 25, 2025

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) as a result of a service-connected disability, on an extraschedular basis, for the period prior to April 6, 2010, is denied.

FINDING OF FACT

The totality of the available evidence persuasively weighs against finding the Veteran was rendered unable to obtain and follow substantially gainful employment by her service-connected disability during the period for consideration.

CONCLUSION OF LAW

The criteria for a TDIU, on an extraschedular basis, for the period prior to April 6, 2010, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1998 to May 2000.

The matter on appeal comes before the Board of Veteran's Appeals (Board) from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In December 2024, the Board remanded the issue to afford the Veteran an opportunity to clarify her employment status and other information for the relevant period on appeal. The agency of original jurisdiction (AOJ) sent the Veteran a letter asking her to provide the information. See VA correspondence of December 2024. This development substantially complied with the Board's directives. As such, the Board will proceed with adjudication of the instant appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Entitlement to a TDIU, on an extraschedular basis, for the period prior to April 6, 2010.

A total disability rating based on unemployability (TDIU) may be assigned where the schedular rating (percentages) is less than total (100 percent) if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16 (a). A TDIU may only be granted if it is determined that the service-connected disabilities are sufficient to produce unemployability without regard to the veteran's advancing age. See 38 C.F.R. § 3.341 (a). Unemployability in this context involves the incapacity to perform the physical and mental acts required by employment, without regard to whether the Veteran can find employment generally. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

In order 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. 38 C.F.R. § 4.16 (a).

For TDIU purposes, 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. See id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. See id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) 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). See id; see also 38 C.F.R. §§ 3.341, 4.16, 4.19.  

It should be noted that an inability to maintain "substantially gainful occupation" for TDIU purposes does not require establishing 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, adjudication of a TDIU is an individualized determination, involving an analysis specific to a veteran's particular circumstances, e.g., their history, education, skills, and training but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85 (2014). 

If a veteran fails to meet the minimum ratings (percentages) for consideration of a TDIU on a schedular basis, but the record raises a reasonable possibility that the veteran may be unemployable as a result of the service-connected disabilities a TDIU may be considered on an extraschedular basis under 38 C.F.R. § 4.16 (b); see also Ray v. Wilkie, 31 Vet. App. 58, 66 (2019).  In such an instance, the Board is precluded from addressing the matter in the first instance and must refer it to the Director of the Compensation and Pension Service for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the Board is precluded from addressing TDIU on an extraschedular basis in the first instance, the Board's jurisdiction encompasses a de novo review of the Director's determination as adopted by the AOJ. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015).

By way of history, the Veteran was granted service connection for a psychiatric disorder, initially rated at 50 percent, with an effective date of March 15, 2006. See December 2006 rating decision. Within the year of this decision additional documents were associated with the claims file. A June 2007 rating decision readjudicated the rating for the psychiatric disability. In August 2007, the Veteran submitted a statement where she asserted that her psychiatric disability was impacting her ability to work. See August 2007 VA Form 21-4138. This statement was broadly construed by the AOJ as to indicate disagreement with the rating assigned to the psychiatric disability and a February 2008 Statement of the Case (SOC) readjudicated the issue. The Veteran perfected an appeal to the Board by submitting a VA Form 9 in April 2008.

While the psychiatric disability rating remained pending, the Veteran also submitted additional documents including an application for TDIU. A December 2008 rating decision denied the issue of entitlement to a TDIU. In December 2012, the Board addressed the appeal pertaining the psychiatric disability rating. The Board also acknowledged that a TDIU had been raised by the Veteran and that the issue was part and parcel of the pending increased rating claim. As such, the Board included the issue as a separate matter on appeal and remanded it for development. 

After various developments, a May 2021 Board decision granted a TDIU from September 21, 2018- the next day after the Veteran's last date of full-time employment. This decision was appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2022, the Court granted a Joint Motion for Remand (JMR) partially vacating the May 2021 Board decision as to the denial of a TDIU for the period prior to September 20, 2018. The issue returned to the Board.

A November 2022 Board decision adjudicated the matter of entitlement to TDIU for the period when the schedular requirements for TDIU consideration were met. This decision also remanded the matter of entitlement to a TDIU for the period prior to April 6, 2010, for extraschedular consideration by the Director.

The matter returned to the Board after consideration of the issue by the Director and the AOJ. See December 2022 VA memo; see also January 2023 Supplemental Statement of the Case (SSOC). A March 2023 Board decision denied a TDIU on an extraschedular basis for the period prior to April 6, 2010. This decision was appealed to the Court and was vacated following a July 2024 JMR. The parties to the JMR agreed that in adjudicating the appeal, the Board had failed to address some relevant information. The issue returned to the Board. In December 2024, the Board remanded the matter to provide the Veteran an opportunity to clarify her employment history during the relevant period. The AOJ sent the Veteran a notification asking for the information. No additional information was received following AOJ's correspondence. The issue has returned to the Board for adjudication.

As the above noted procedural history shows, the matter of entitlement to a TDIU was raised during the pendency of an appeal pertaining the initial disability rating assigned to the service-connected psychiatric disorder. A TDIU, on a schedular basis, has been granted for part of the period originally before consideration as part and parcel of the increased rating claim for the psychiatric disorder. See Board decisions of May 2021 and November 2022. As such, the periods for which a TDIU has already been assigned, are no longer part of the instant appeal. However, the TDIU, as awarded, does not encompass the entire period for consideration beginning on March 15, 2006. Hence, the remaining question on appeal before the Board is whether a TDIU is warranted, for the period beginning on March 15, 2006, and prior to April 6, 2010. 

The documents in the claims file show that for the period beginning on March 15, 2006, and prior to April 6, 2010, the Veteran was service connected for a single disability, her psychiatric disorder. The condition was rated at 50 percent disabling throughout this period. Hence, the threshold requirements for TDIU consideration on a schedular basis under 38 C.F.R. § 4.16 (a) were not met during this period as the Veteran had a single service-connected disability that was not rated at 60 percent disabling or more. 

Per regulation, if a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), such as the case here, the matter may be considered on an extraschedular basis under 38 C.F.R. § 4.16 (b). Generally, per regulation, the Board may not address entitlement to a TDIU on an extraschedular basis in the first instance. Rather, the issue must be referred to the Director, Compensation Service, to make an initial determination. In this case, the Director determined that a TDIU on an extraschedular basis is not warranted. See VA memo of December 2022; see also January 2023 SSOC adopting the Director's determination. The Board is not bound by the Director's determination. Rather, the Board must conduct a de novo analysis of whether a TDIU on an extraschedular basis is warranted or not. Wages v. McDonald, 27 Vet. App. 233, 236 (2015); see also Snider v. McDonough, 35 Vet. App. 1 (2021).

Therefore, the Board may now address whether a TDIU is warranted under 38 C.F.R. § 4.16 (b)- on an extraschedular basis. To do so, the Board must evaluate the available evidence in the claims file to determine whether the Veteran was rendered unable to secure and follow a substantially gainful occupation by her service-connected disability during the period on appeal. 

As explained in Ray v. Wilkie, there are two components to the TDIU analysis, an economic component and a non-economic component. The Board will first address the economic component during the relevant period. 

The economic component involves consideration of whether the claimant was employed or unemployed during the relevant period. If employed during the period, then, the Board must consider whether such employment was substantially gainful employment.  Substantially gainful employment means work that pays or allows the claimant to earn an annual income that is more than the poverty threshold for one person. Marginal employment exists when the annual income a veteran receives from any employment is less than the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. The amounts established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person are: $10,294 (2006), $10,590 (2007); $10,991 (2008); $10,956 (2009); $11,129 (2010). See United States Census Bureau, Poverty Thresholds, www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed April 3, 2025).

Marginal employment can also be established on a facts-found basis when earned annual income exceeds the poverty threshold due to employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). In other words, for TDIU purposes, employment in a protected environment may not always constitute substantially gainful employment and therefore would not preclude the assignment of a TDIU. In reaching a determination, consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). 

The regulation does not specifically define what constitutes employment in a protected environment, but it provides examples such as employment in a family business or sheltered workshop. In LaBruzza v. McDonough, 37 Vet. App. 111 (2024), the Court addressed marginal employment in a protected environment. It held that "employment in a protected environment" means a lower-income position that produces earned annual income that exceeds the poverty threshold, but, due to service-connected disability, is shielded in some respect from competition in the employment market. The Court also provided some general guidance for the fact-specific inquiry to determine whether a veteran's employment may constitute marginal employment in a protected environment indicating as a key regulatory consideration the extent to which a veteran's earned annual income exceeds the poverty threshold. The Court also noted that workplace accommodations could also be relevant to the fact-drive inquiry of establishing employment in a protected environment. However, it clarified that receiving reasonable accommodations in the workplace would not, in and of itself, be determinative on the question whether such constituted a protected environment to establish marginal employment. Particularly, it explained that employment in a protected environment is meant to encompass employment that is shielded in some respect from competition in the employment market. With that in mind, the Court reasoned that the accommodations required by the Americans with Disabilities Act (ADA), would not constitute evidence of employment in a protected environment. In support of that conclusion the Court explained that the reasonable accommodations required by the ADA apply to virtually all employers with 15 or more employees which makes them part of the competitive labor market and do not serve to shield a person from the competitive labor market. 

In sum, for the economic component of the TDIU analysis to be satisfied, the available evidence must generally support finding that either the claimant was not employed during the relevant period or that if employed- such employment was no more than marginal. As the ultimate purpose of the TDIU benefit is to compensate for actual unemployability, a finding of substantially gainful employment would preclude the assignment of a TDIU for the period of employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Labruzza v. McDonough, 37 Vet. App. 111, 123 (2024).

The documents in the claims file include some information as to the Veteran's employment during the period from March 2006 to April 2010. Some of the documents are contemporaneous to the period for consideration, while others were created or generated after the relevant period (ending in 2010). As explained in prior decisions, including the December 2024 Board remand, the available documents lack some specific information such as the specific dates of employment, circumstances of employment, or periods of unemployment, etc. Although an opportunity to clarify the information was provided to the Veteran and her representative, additional information was not received following the most recent remand requesting clarification. The duty to assist in the development of a claim is not one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991).  Claimants generally have an obligation to assist in the adjudication of their claims including providing additional information or clarification. As such, the Board finds VA satisfied its duty to assist in the development of this claim and the matter will be adjudicated based on the information of record.

The documents in the claims file contemporaneous to the period for consideration (prior to April 2010) include VA examination reports, medical records and the Veteran's statements that include some information as to the Veteran's employment and circumstances. In relevant part, the claims file shows that at a July 2006 VA examination, the Veteran reported working in customer service and being employed at Cingular since March. At another VA examination in October 2006, the Veteran reported working 40 hours a week. In a February 2007 VA examination, the Veteran reported that she had been working at Cingular for almost a year. She also noted that all of her reports (likely referring to her performance evaluations or reports) were good, except for her attendance. As to her attendance she explained that over the 2 months prior to the examination, she had been late once and had to leave work twice for personal reasons which were counted as absences. 

In December 2007, the Veteran completed a Rehabilitation Needs Inventory (RNI), VA Form 28-1900, where she indicated her most current position was as a customer service representative for AT&T, formerly Cingular Wireless. She indicated her employment began in March 2006 and that she had been placed on leave through the Family and Medical Leave Act (FMLA) from August to January. Her job duties in this position included assisting with billing and technical issues as well as account research. See VA Form 28-1900, associated with the claims file in December 2007. When this form is read in view of the other documents in the claims file, including the above noted VA examination reports, it is understood to indicate that the Veteran was employed in the same position or capacity since March 2006 and that in or around August 2007, she was placed on leave through the FMLA program. In another part of the VA Form 28-1900, titled "Disabled Veterans Application for Vocational Rehabilitation" the Veteran indicated that her monthly salary or wages as a customer service representative for AT&T was $1800. See VA Form 28-1900, associated with the claims file in December 2007. In a rehabilitation needs inventory, the Veteran specified that her hourly pay at AT&T was $13.25. See VA Form 28-1902w, associated with the claims file in December 2017. VA medical records also note the Veteran's reports of being on a medical leave from her employment during this time. The records for this period documented the Veteran's psychiatric treatment at the time and noted Veteran's reports that she would return to work at AT&T on January 7, 2008. See VA medical records for December 2007 and January 2008.

At a February 2008 VA examination, the Veteran indicated that she remained employed at AT&T, in the same position, but characterized her employment as "part-time." In April 2008, a letter from the Veteran's employer was associated with the claims file. The letter, dated February 2008, was a "final written warning" regarding her attendance and included a list of attendance points (or infractions against AT&Ts attendance policy) and the dates where such infractions had been incurred.  In relevant part, from the dates included in the letter, it seems that since her return to work in January 2008, she had incurred additional attendance points, with two infractions occurring in January, and one infraction occurring in February 2008. The Veteran was advised to be on time every scheduled shift, and to accurately report her time through the time keeping system as that was the official record of the time worked. She was also reminded about her responsibility to maintain acceptable attendance performance and advised to utilize the available processes for appointments and to schedule full days off. See employer letter to the Veteran, dated February 2008, and associated with the claims file in April 2008.

The Veteran's employment at AT&T ended on March 27, 2008. See VA Form 9 of April 2008; see also Veteran's resume associated with the claims file in September 2020. 

Per the Veteran's resume, after AT&T, she was employed as an office assistant at VA from April 2008 to June 2010. Additionally, the record reflects that the Veteran received Vocational Rehabilitation and Employment (VR&E) services during this period. She was enrolled in the Chapter 31 Vocational Rehabilitation program at the full-time rate. Per VR&E correspondence, she would be paid approximately $541.05 per month for every month of enrollment with her current enrollment at the time set to end on September 12, 2009. She was also receiving $1,300 per month through her work-study with the VA. See correspondence from vocational rehabilitation counselor of April 2009, associated with the claims file along other VR&E documents. The Veteran's reports of income from her work-study employment during this period differ from the amount noted in the counselor's letter noting an income of $1,300 per month from the work-study employment. Particularly, a December 2008 VA psychology note indicated the Veteran's report of making $650 per month from the position, while in a rehabilitation needs inventory, she reported her work-study salary as $1,200 per month. See VA medical records; see also VA Form 28-1902w, associated with the claims file in December 2017. The Board has afforded higher probative value to the income figure documented by the vocational rehabilitation counselor in her correspondence of April 2009, which when read as a whole, appears to have been prepared by the counselor to document the Veteran's monthly income at the time. Lesser probative value has been afforded to the income figure documented in the medical records as its accuracy is unclear and appears to be grossly inconsistent with other documents in the claims file. The income figure documented in the VA Form 28-1902w of December 2017 has also been afforded lesser probative value than the more contemporaneous evidence (that of April 2009). A VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits has not been completed by the Veteran for this period (2008-2010) of employment with the VA. See October 2019 VA correspondence (inviting the Veteran to submit a VA Form 21-4192 for each employer); See also VA Form 21-4192 associated with he claims file in December 2019 (pertaining a different period of employment with VA). 

Based on the above information and the other documents in the claims file, the Board finds the Veteran was substantially and gainfully employed during the period ending on March 27, 2008. Here, the documents in the claims file contemporaneous to the period include the Veteran's statements that she was employed on a full-time basis on a customer service position from March 2006 until March 2008, and that she had a period of FMLA leave beginning in August 2007.

The record does not show nor otherwise suggest that during this period the Veteran's income was marginal, or that she was otherwise employed in a protected environment. Rather, the available evidence strongly supports finding that she was employed in a substantially gainful employment. For example, in the September 2022 VA Form 21-8940, the Veteran reported that for the year 2006, she earned around $50,000. This is well beyond the minimum poverty threshold for the year 2006. As such, marginal employment on a regulatory basis (income below the poverty threshold) for the year 2006 is not found. 

The Veteran's income for the year 2007 is not clearly of record. Nonetheless there is sufficient information in the record for the Board to reach a determination. As noted above, the Veteran reported her monthly wage as a customer service representative for AT&T was around $1,800. Additionally, the available evidence suggests the Veteran was employed in the same capacity between 2006 and until at least August 2007 when her FMLA leave began. Assuming the Veteran received that amount of monthly income for work performed between January and July 2007; her income would have been at least $12,600- which is more than the poverty threshold established for the year 2007. In view of the above, and absent additional information in the claims file to suggest otherwise, marginal employment on a regulatory basis has also not been established for the year 2007. 

In reaching this determination, the Board has considered that the Veteran was placed on FMLA leave during the year 2007. Specifically, the available evidence shows her FMLA leave began in August 2007 and ended the first week of January 2008. See for example VA Form 28-1900, associated with the claims file in December 2007; see also VA medical records. As such, the Board has considered whether the Veteran's AT&T employment for the period beginning in August 2007 could be considered as employment in a protected environment. However, such is not the case as the available evidence does not show or otherwise support finding that this leave was meant to protect or shield the Veteran in some respect from competition in the employment market. Rather, the available evidence strongly suggests that the FMLA leave was but a reasonable accomodation that would have been available to virtually all qualifying employees with disabilities at her place of employment thereby making the reasonable accommodation part of the competitive job market in the same way as any other accomodation that could have been provided under the ADA. As such, the Veteran's leave under the FMLA from August 2007 and prior to January 2008 is not considered to constitute a protected environment to establish marginal employment on a facts-found basis during this period. 

Per the available evidence, the Veteran's FMLA leave ended the first week of January 2008, and her employment with AT&T officially ended on March 27, 2008. It is unclear from the record whether the Veteran worked on a full time at AT&T during the year 2008 or whether she returned to work on a part-time basis immediately after her FMLA leave ended. For purposes of this decision, the Board has assumed that Veteran only worked on a part-time basis immediately after her FMLA leave ended until her employment at AT&T ended (from January 2008 to March 2008). 

The Veteran's income from January 2008 to March 2008 is not clearly of record. Further, the available evidence does not support finding the part-time employment was provided by her employer in recognition of the Veteran's specific circumstances to somehow shield her from the competitive labor market or that it was otherwise a special accomodation beyond those generally available to other employees at the Veteran's place of employment. As such, the evidence does not support finding the Veteran's employment during this period was in a protected environment to constitute marginal employment on a facts-found basis. Consequently, based on the available documents in the claims file, the Board finds that marginal employment has not been established for this period, including consideration of the Veteran's FMLA Leave period as well as her part-time employment at AT&T in 2008. Rather, the available evidence strongly suggests that the Veteran was substantially and gainfully employed for the period prior to March 27, 2008- when she was let go from her position at AT&T. As the evidence does not support finding marginal employment for this period, the economic component is not met. As such, the Board finds a TDIU on an extraschedular basis is not warranted for the period prior to March 27, 2008. 

As previously noted, the Veteran's resume indicates that she worked for VA for the period beginning in April 2008 and until June 2010. However, at a May 2010 VA examination, the Veteran reported that she had left her employment at VA in December 2009 due to not feeling comfortable there. VA medical records also note the Veteran's reports that she was experiencing issues with getting her work study job in place due to an issue of credits to facilitate the benefit. See VA medical records for January 2010. A March 2010 note from a social worker also documented the Veteran's reports of high levels of stress and that she did not feel able to perform her job duties as expected so she had chosen not to return to the work-study position for the semester. She also noted that she had conveyed this information to her work-study supervisor and that this was not a problem. The Veteran indicated she was still attending classes. See VA medical records for March 2010. This evidence suggests that the Veteran was employed (work-study) from April 2008 until at least December 2009. 

The Veteran's income for the years 2008 and 2009 is not clearly of record. Nonetheless, the record includes sufficient information to adjudicate the claim. Specifically, VR&E documents indicate her income from the work-study was around $1,300 per month (annualized as $15,600), which strongly suggests that the Veteran's income for the years 2008 and 2009 was likely more than the poverty threshold for those years. As such, marginal employment on a regulatory basis is not established for these years. 

Nevertheless, the Board must also consider whether marginal employment can be established on a facts-found basis for the years 2008 and 2009. The documents in the claims file show this employment at VA was a work-study while the Veteran was participating in the VR&E program.  Documents from the VR&E program include information as to the Veteran's work-study such as time records of the hours worked as well as one communication from the Veteran's counselor noting how the Veteran was the best work-study. See VR&E documents. The available evidence does not show the Veteran was afforded accommodations at her work-study because of her psychiatric disability. 

It is observed that at the October 2008 VA examination, the Veteran reported that she was working daily in a secretarial position, and that since the employment began, she had missed about 2 weeks of work and was late frequently. Further, as noted above, at another VA examination in 2010, the Veteran reported she had informed her work-study supervisor that she had chosen not to return to her work-study position after December 2009 and that this was not a problem. This information suggests that the work-study position may have included some level of flexibility or accomodation to the Veteran. It is unclear, however, from the available documents in the claims file whether the Veteran received any accomodation specifically to accommodate the impact of her service-connected disability. For example, it is unclear whether the Veteran was afforded any accomodation beyond the accommodations that can be reasonably expected in the context of a work-study position such as a level of flexibility with attendance and schedule to accommodate the student's academic schedule and demands, and/or that such accomodation was afforded to the Veteran in view of or because of her service-connected disability. As such, the available evidence does not support finding the Veteran's work-study employment constituted marginal employment by reason of employment in a protected environment for TDIU purposes. 

Although the Veteran's resume indicated her work-study ended in June 2010, the Veteran's statements as documented in the medical records suggest she may not have engaged in work-study from January 2010 to April 2010. As such, it is unclear whether the Veteran received income from her work-study during this period. See for example VA medical records for March 2010. Further, the Veteran was granted a TDIU effective April 6, 2010, which in effect indicates she did not engage in substantially gainful employment in 2010. Consequently, in view of the above, the Board will proceed to consider the noneconomic components of the TDIU analysis, to ascertain whether a TDIU on an extraschedular basis is warranted at any time during the remaining period prior to April 6, 2010.

The non-economic component of the TDIU analysis includes consideration of the Veteran's education, training, work history and other factors pertinent to the question of whether the Veteran was physically and mentally capable of substantially gainful employment despite the impact of her service-connected disability during the relevant period.

The record shows that the Veteran completed high school. Additionally, the record shows that she was enrolled in courses of higher-level education during the period for consideration. Specifically, her VR&E records show she enrolled in courses with the goal of obtaining an associate degree in paralegal studies. The VR&E records show the Veteran did not earn a higher-education degree in or prior to April 2010. Rather, the documents indicate that in or around May 2010, she needed to complete at least one more course in addition to an internship to satisfy the graduation requirements. See VR&E documents. 

Her employment history prior to March 2008 included working as a Customer Service Representative at AT&T from March 2006 to March 2008. She also worked on a full-time basis in outbound sales, from 2005 to 2006. See Rehabilitation Needs Inventory, VA Form 28-1900, associated with the claims file in December 2007. Her work-study at VA from 2008 to at least December 2009 was as an office assistant or as an administrative assistant and included secretarial duties or responsibilities. See resume associated with the claims file in September 2020; see also VA Form 28-1902b of October 2020; see also VA examinations. 

Per the Veteran's resume, her skills include administrative support, customer service, data entry, document preparation, human resources support, among other skills generally associated with clerical or office work such as typing, records maintenance, and telephone soft skills among others. See resume associated with the claims file in September 2020.

During the relevant period, the Veteran was not service-connected for any physical disability- a disability impacting any body part or system. Rather, the documents in the claims file show that the Veteran was only service connected for a psychiatric disability during the relevant period. 

The contemporaneous documents in the claims file include information as to the symptoms and manifestations of her psychiatric service-connected disability, as well as the impact such had on the Veteran's ability to work. 

For example, in her August 2007 NOD, the Veteran reported that her psychiatric disability was impacting her ability to perform her work due to concentration issues and memory problems. She also asserted that she would be fired from her employment (at the time she was employed by AT&T) if something did not change. See August 2007 NOD.

In February 2008, the Veteran underwent an examination pertaining her psychiatric disability. The report documents the Veteran's symptoms of depression, anxiety, poor sleep, mood swings, and panic feelings that seemed to be improving. She reported her symptoms resulted in decreased concentration and increased absenteeism; and were causing problems at work. At the time of this examination, the Veteran was observed to be oriented as to person, time and place. Her thought process and thought content were unremarkable. In the examiner's assessment, the Veteran understood the outcome of her behavior and understood she had a problem, suggesting her judgment and insight was within normal limits. No issues with memory, hygiene, or activities of daily living were noted in the report. See February 2008 VA examination.

The Veteran reported that her employment with AT&T was terminated on March 27, 2008. See April 2008 VA Form 9. Moreover, she submitted a letter from her employer formally documenting the Veteran's unsatisfactory performance in terms of work attendance which could be grounds for termination. See February 2008 employer letter, associated with the claims file in April 2008. 

The record also shows the Veteran enrolled in education courses in or around April 2008. VR&E documents in the claims file include a letter from one of her professors who noted the Veteran was attentive, a team player and had good grades, while another of her professors considered her an exemplary student in every way and an asset to his class. Other VR&E documents for this period noted the Veteran's enjoyed attending her classes, that her vocational goals were feasible, and that her mental condition did not appear to impact her ability to complete her education. See VR&E documents, including June 2008 progress reports from professors. 

In October 2008, the Veteran underwent another VA examination. At the time of this examination, the Veteran reported that due to her psychiatric disorder, she would get 3 to 4 hours of sleep per night. She attributed her inability to hold a job to her sleep issues, which resulted in her waking up late, and either missing or reporting late to work. She reported her attendance issues as the reason she was fired from AT&T. She also noted that she is tired during the day and has trouble concentrating due to her sleep-issues. At the time of this examination, the Veteran also reported that she was in a vocational rehabilitation program, that she worked daily doing secretarial work. She noted that she had missed about 2 weeks of work and was frequently late. The examiner advised the Veteran to seek a more thorough examination by psychiatry to evaluate her psychiatric disability and how it interfered with her ability work.  See VA examination report of October 2008.

VA medical records for this period of time include information as to the Veteran's psychiatric symptomatology and associated impairment. For example, records from August 2009 note the Veteran's reports of working and attending school and that she was doing well with her everyday life and occupational functioning despite her psychiatric symptomatology (noted as depressive experience and presentation). See VA medical records for August 2009. 

In October 2009 and November 2009, the Veteran reported to her social worker that school and work continued to go well. See social worker note in VA medical records for October 2009 and November 2009. However, the November 2009 notes indicate significant depressive affect. The Veteran was subsequently seen by psychiatry and a new medication was prescribed for her psychiatric symptomatology. See VA medical records for November 2009. 

The Veteran was afforded another VA examination in March 2010. The full write up of the examination report was completed and uploaded to VA systems in May 2010. At this examination, the Veteran reported slight limitations in completing household chores and grooming, as well as moderate limitations in engaging in exercise or other recreational activities, bathing and traveling. Per the examination report, the limitations were associated to the Veteran having very low motivation. Her symptoms included sleep problems, depressed mood and anger. At the time of this examination, the Veteran reported that she had been working at VA doing clerical work but that she had left in December 2009 due to not feeling comfortable. She reported feeling as though others were judging her. She also noted that she had been enrolled in an associate's degree program for paralegal studies and that she had a final exam the date the examination interview took place but that she was not going to take it. The subscriber of the report noted that the Veteran was experiencing an exacerbation of her symptomatology due to social stressors such as financial difficulties, housing issues, marital problems, and others. The subscriber noted that the Veteran did not appear to be able to perform effectively in work, home and school settings given her very low level of motivation and problems in thinking that likely negatively affected her relationships across settings. See March 2010 VA examination. 

VR&E documents also include determinations about the Veteran's vocational rehabilitation potential. In or around 2011, it was determined that the Veteran's vocational goal of completing her paralegal studies to be consistent with her abilities and would not aggravate her psychiatric disability. See February 2011 counseling note in VR&E records. 

A Vocational Assessment, dated August 2022, indicated the Veteran was "more likely than not unable to secure and follow substantially gainful employment, including unskilled sedentary employment" for various periods, including in or around 2008. The report indicates it was prepared with consideration of various documents in the claims file as well as based on an interview with the Veteran wherein she described the impact of her service-connected disability at the time. While the conclusions reached by the subscriber of the report have been considered, the Board emphasizes entitlement to a TDIU is a legal determination, not a medical one. Further, it is noted that the report does not specifically address the period for consideration, but rather addresses the Veteran's ability to work in a general sense and appears to heavily rely on information that post-dates the period for consideration. Consequently, while the report has been considered, it has been afforded limited probative value to determine whether a TDIU is warranted during the period for consideration. 

Here, the totality of the available evidence does not support finding that the Veteran was rendered unable to obtain and follow substantially gainful employment by her service-connected disability, for the period prior to April 6, 2010, to warrant a TDIU on an extraschedular basis. 

As previously noted, "entitlement to TDIU is based on an individual's particular circumstance." Rice, 22 Vet. App. at 452 (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App., at 85-86. As such, in adjudicating a TDIU claim, VA must consider the veteran's history, education, skill, and training and whether the veteran has the physical ability as well as the veteran's mental limitations, if any, to perform the type of activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in and of itself is recognition that the condition results in functional impairment of earning capacity (can interfere with a claimant's ability to perform work). The Board highlights that the existence of some functional impairment resulting from service-connected disabilities is not equivalent to or synonymous with being unemployable as a result of service-connected disabilities. Additionally, the Board emphasizes that the term "substantially gainful employment" does not necessarily mean that the Veteran has the job for which she was trained. Rather, in adjudicating a TDIU, the Board must consider whether the Veteran has the potential to earn more than marginal income in view of her employment history, education, skill, and training. See Ray, supra. 

The record shows the Veteran's completed high school and has additional education in the field of paralegal studies. The record also shows that the Veteran has occupational experience as she has worked as a customer service representative, as well as in secretarial or clerical positions. The record includes the Veteran's consistent reports of how her psychiatric disability interfered with her sleep, which in turn impacted her work attendance. The Veteran also reported that due to her issues with sleep, she also experienced fatigue, concentration issues, and memory issues during the day, which she reported could impact her efficiency at work. 

While the record suggests the Veteran's psychiatric symptomatology may have at times resulted in some interference with her ability to work, the totality of the available evidence does not support finding the impairment rendered the Veteran unable to obtain and follow substantially gainful employment during the period. In other words, the available evidence does not support finding the Veteran's psychiatric disability rendered her unable to perform the physical and mental tasks commonly associated with the types of employment she was qualified to perform involving work in an office setting, clerical work, or secretarial work. 

Indeed, the available evidence suggests that her psychiatric disability resulted in some interference with her attendance as the Veteran reported she would wake up late or miss work due to her sleep issues, and that because of her sleep issues she also experienced fatigue, concentration issues and memory issues. Additionally, the record suggests that the psychiatric disability impacted her motivation and her ability to handle stress at times during the period for consideration. However, the disability rating assigned for her service-connected disability during this period, already recognized and compensated the impact the disability may have had on the Veteran's ability to perform occupational tasks and hence the functional impairment of earning capacity associated with the condition. 

Further, the available evidence for the relevant period suggests that despite the impact of her psychiatric symptomatology, the Veteran generally retained the physical and mental capacity to function satisfactorily socially and occupationally during the period. For example, VR&E documents for the relevant period include information suggesting that despite the psychiatric symptomatology, the Veteran was generally able to attend her classes and completed her courses satisfactorily. See for example VR&E documents including 2008 assessments by her professors.  She was also able to participate of a work-study during the period between 2008 and prior to 2010. Her work-study supervisor at least on one occasion commented how the Veteran was a great work-study. This suggests that despite the impact of her psychiatric symptomatology, the Veteran was able to satisfactorily perform most physical and mental tasks associated with the type of employment she is qualified to perform such as clerical or administrative work in an office setting. The communication with her work-study supervisor also suggests the Veteran remained able to function satisfactorily in social situations in an occupational setting. See VR&E documents, including email from October 2010 regarding file transfer.

Generally, for a claimant to prevail on a claim for TDIU on an extraschedular basis, the record must reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Board has found that a TDIU on an extraschedular basis is not warranted at any time during the period for consideration as the record does not support finding the Veteran was precluded from securing or following substantially gainful employment solely by reason of her service-connected disability or that she was rendered unable to perform the mental and physical acts required by employment due solely to her psychiatric disability during this period, even when assessed in the context of subjective factors such as her occupational background and level of education. 

The Board has considered the Veteran's statements of record as to how her condition rendered her unemployable. While the service connected psychiatric disability may have rendered the Veteran unable to engage in certain types of employment with strict attendance requirements- such as her position at AT&T, the record strongly suggests she possesses occupational skills consistent with other kinds of employment including positions that could allow for some level of accomodation in terms of her attendance to accommodate for the impairment associated with her service-connected disability and that could likely provide more than marginal income. Consequently, while the Veteran's statements as to how she believes her service-connected disability resulted in her unemployability have been carefully considered, the Board finds the totality of the available evidence does not support finding the service-connected disability resulted in such impairment of her mental and/or physical capacity as to produce unemployability to warrant a TDIU on an extraschedular basis during the relevant period for consideration. 

The Board has also considered that some medical professionals indicated the Veteran's psychiatric disability may have interfered with her ability to work during the relevant period or appeared to interfere with her ability to perform effectively at work. See private vocational assessment of 2022; see also 2010 VA examination report. While these assessments have been considered, as noted above the question of whether a TDIU is warranted remains a legal determination. In this case, as addressed above, the economic component for TDIU was not met during most of the period on appeal. Additionally, for the period of 2010, when the record suggests the Veteran may not have participated of her work-study, the Board has found that the totality of the available evidence persuasively weighs against the noneconomic components for a TDIU on an extraschedular basis. 

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In rending the above determinations, the Board acknowledges that the instant issue was referred to the Director for extraschedular consideration as the record raised reasonable possibility that the Veteran may have been rendered unemployable as a result of her service-connected disability. However, the Board must emphasize that the evidentiary threshold for referral of a TDIU for extraschedular consideration is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). This is a lower threshold than the standard applicable to adjudicating the issue on the merits following consideration of the entire record and applicable regulation.

Therefore, for the reasons above discussed, the Board finds the evidence does not support finding the Veteran was unable to secure and follow substantially gainful employment by his service-connected disabilities at any point during the relevant period on appeal and prior to April 6, 2010. Rather, the evidence of record persuasively weighs against the Veteran's claim in so far as it shows the Veteran was substantially and gainfully employed during most of the relevant period and persuasively shows that for the period where she was not (2010), the Veteran retained the physical and mental capacity to perform most tasks generally associated with employment during the relevant period. Consequently, a TDIU for the period prior to April 6, 2010, on an extraschedular basis under 38 C.F.R. § 4.16 (b), is not warranted. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Gonzalez-Maldonado, 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.