Citation Nr: 18131286
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 16-32 590
DATE:	August 31, 2018
Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.
The Veteran’s service-connected disabilities do not preclude substantially gainful employment.
The criteria for a TDIU have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. 3.340, 3.341, 4.15, 4.16 (2017).
In a February 2018 brief, the Veteran’s representative asserted that the RO should have made efforts to determine whether the Veteran’s employment was full time, gainful, or sheltered.  In November 2010, the Veteran was sent a letter informing him of the elements needed to substantiate his TDIU claim, including that his service connected disabilities must prevent “substantially gainful employment.”  Neither the Veteran nor his representative have provided any evidence or indication that the Veteran’s employment is not full time, not gainful, is marginal, or is sheltered other than to suggest that the RO should have made the inquiry on its own.  While VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (the Veteran cannot passively wait for help from VA). 
The Veteran has not raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  
It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled.  Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration.  The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered.  See 38 C.F.R. § 4.16(b).
The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The Board will not consider his or her age or impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).
The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question, however, is whether a veteran can perform the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose, 4 Vet. App. at 363.
Prior to March 12, 2017 
The Veteran filed a TDIU claim in August 2010.  The Board acknowledges during the appeal period the Veteran has met the schedular requirements for TDIU.  The Veteran’s combined schedular rating has been above 60 percent, and he had a disability rated over 40 percent.  
The Board notes the Veteran has received multiple VA examinations for his disabilities.  At each VA examination, the examiner concluded the Veteran’s disability did not preclude him from gaining or maintaining employment.  There are two examiners who noted that the Veteran’s service connected disabilities impacted his ability to work.  In February 2017, the VA examiner noted that the Veteran should not work from unprotected heights or solo work environments due to risk of hypoglycemia.  Additionally, he needed to be able to take meal and snack breaks and be permitted to test his blood sugar.  Lastly, he should not work in an environment with extremes of temperature and activity.  Though the May 2015 examiner stated his right shoulder condition could impact the Veteran’s job if he had to “…fight with a resident,” because it would cause severe pain.  However the Veteran remained employed at the Maryland Department of Health and Juvenile Services.  While the Veteran was terminated from his job as a resident associate, his termination had nothing to do with his service-connected disabilities.  Instead, he stated that he was terminated because he reported an assault of a resident.  
Furthermore, the Veteran began working another job at the Department of Mental Health as the Director of Care.  
The Board finds the preponderance of evidence is against the Veteran’s claim that he is unemployable.  The record shows the Veteran has been able to maintain employment despite his service-connected disabilities.  Moreover, there is no evidence is the record to suggest his service-connected disabilities preclude employment as the VA examiners continually concluded his disabilities had no impact on his ability to work.  Accordingly, the Board finds the Veteran’s TDIU claim should be denied.     
From March 13, 2017 
From March 13, 2017, the Veteran’s combined rating was 100 percent.  However, a grant of a 100 percent disability does not always render the issue of TDIU moot.  VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).  A TDIU satisfies the total (100 percent) rating requirement for establishing special monthly compensation (SMC) if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more.  See Bradley v Peake, 22 Vet. App. 280 (2008).  The Board notes the Veteran does not have a single disability rated at 60 percent.  
The Board acknowledges the Veteran’s more recent VA examinations showed some of the Veteran’s disabilities impacted his ability to work.  At a May 2017 VA examination, the examiner noted the Veteran’s peripheral neuropathy caused him to have decreased sensation and feeling in his lower extremities which predisposed him to ulcers, gangrene, and injuries.  Additionally, the August 2017 VA examiner noted the Veteran’s chronic diarrhea has impacted his ability to work because he needs to be near a restroom.  The August 2017 VA examiner also concluded the Veteran’s psychiatric condition caused occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks.  Nevertheless, the Board notes the Veteran remained employed as the Director of Care and noted at his August 2017 VA examination that his job was going “okay.”   
Thus, the Board finds the Veteran was not unemployable.  The Board acknowledges the Veteran’s disabilities have some impact on his employment.  However, the Veteran continues to work and there is nothing in the record to suggest he is no longer able to work due to a singular disability.  A TDIU beginning March 13, 2017 is denied.  

D. Martz Ames
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Brunot, Associate Counsel  

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