Citation Nr: 18131205
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-45 553
DATE:	August 31, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied.
FINDING OF FACT
The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment.
CONCLUSION OF LAW
The criteria for entitlement to a TDIU have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active duty service in the United States Air Force from May 2010 to February 2014.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs.
1. Entitlement to a TDIU is denied. 
The Veteran seeks entitlement to a TDIU.  To establish entitlement to a TDIU, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.  The central inquiry in any TDIU determination is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.  38 C.F.R. § 3.340; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating is itself recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the appellant is capable of performing the physical and mental acts required by employment, not whether the appellant can find employment.  38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 
“Substantially gainful employment” is 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, 358 (1991).  “Marginal employment shall not be considered substantially gainful employment.”  38 C.F.R. § 4.16(a).  Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363.  The ultimate question of whether a Veteran is capable of substantially gainful employment is for the adjudicator.  See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).
Where the schedular rating is less than total, a total disability rating may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements.  The schedular requirements are met if there is only one service-connected disability and the disability is rated at 60 percent or more; or, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  38 C.F.R. § 4.16(a).
A VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, was received on March 26, 2015.  As such, the relevant period for consideration on appeal for entitlement to a TDIU is from one year prior to the date of receipt of the claim, namely March 25, 2014.  From March 25, 2014, through February 29, 2016 (leap year), the Veteran’s service-connected disabilities were adjustment disorder with insomnia disorder and mixed anxiety and depressed mood (rated 70 percent), and residuals from aseptic spinal meningitis, post-traumatic lumbar puncture (rated 20 percent).  The combined service-connected disability rating was 80 percent during this period.  Effective March 1, 2016, the Veteran’s rating for adjustment disorder with insomnia disorder and mixed anxiety and depressed mood was reduced from 70 percent to 50 percent.  His combined service-connected disability rating then became 60 percent.  Therefore, the Veteran met the schedular criteria for a TDIU from March 26, 2014 through February 29, 2016, but not thereafter.  
After careful consideration, the Board finds the Veteran’s service-connected disabilities have not prevented him from securing and following substantially gainful employment.  As such, referral for consideration of entitlement to a TDIU on an extraschedular basis for the period from March 1, 2016, is also not warranted under 38 C.F.R. § 4.16(b).
After separating from active duty service in February 2014, the Veteran began taking classes at Oakland County Community College.  In the VA Form 21-8940, he reported working full-time as an analyst for the Dake Group from August 2014 to April 3, 2015.  He claimed that he became too disabled to work as of April 3, 2015, due to his service-connected adjustment disorder with insomnia disorder and mixed anxiety and depressed mood.  He did not mention his service-connected aseptic spinal meningitis as contributing or causing his alleged unemployability.  
During the period of gainful employment with the Dake Group, the Veteran received valuable training, skills, and experience that would likely qualify him for sedentary and non-sedentary work.  Further, the Veteran has a high school eduction with at least two years of college education that would likely qualify him for sedentary and non-sedentary work.  These considerations factor into the Board’s decision.
While the Veteran said he voluntarily resigned after a work meeting due to a panic/anxiety attack, see VA 21-8940, the Board is mindful of his report that it was the first time he did not respond appropriately to that type of situation.  See id. (“this was the first time I could not cope by excusing myself from the room.”).  Moreover, information received from the Dake Group shows that he resigned voluntarily and did not miss any time from work due to any disability or indicate that he was unable to perform the work.  VA 21-4192, Request for Emp’t Info. in Connection with Claim for Disability Benefits (Apr. 28, 2015).
Furthermore, the medical evidence shows that his mental disorder improved during this period and resulted in a rating reduction for his service-connected adjustment disorder with insomnia disorder and mixed anxiety and depressed mood.  See December 2015 Rating Decision (decreasing rating from 70 percent to 50 percent); July 2015 Rating Decision (proposing reduction to 50 percent).  Additionally, he was not seeking or receiving any mental health treatment at that time.  A month after voluntarily resigning from his job, the Veteran underwent a VA examination to assess his mental disorder.  See May 2015 VAX.  The examiner remarked that the Veteran can function in an occupational environment with psychiatric treatment.  Id.  The examiner also described his mental condition as resulting in 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.  See also December 2014 VAX (describing Veteran’s mental condition as resulting in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication).  
By regulation, the VA is authorized to take into account the ameliorative effects of medication when evaluating a mental disorder under the General Rating Formula for Mental Disorders which governs his current rating.  See 38 C.F.R. § 4.130, DC 9440 (providing a noncompensable evaluation when “symptoms are not severe enough... to require continuous medication” and a 10 percent evaluation when “symptoms [are] controlled by continuous medication”).  Considering the examiners’ assessments and the ameliorative effects of medication, the Board finds that his mental disorder has not been shown, at any time during the rating period on appeal, to be so severe as to prevent him from securing or following substantially gainful employment.  While he submitted a letter from therapist C.Y. indicating he began therapy for his mental disorder, the letter does not contradict the examiners’ conclusions as the Veteran’s level of functioning or ability to function in a work environment with proper treatment. 
Likewise, his service-connected residuals from aseptic spinal meningitis, post-traumatic lumbar puncture, have not been shown to prevent substantially gainful employment.  See January 2015 VAX (noting that the Veteran can sit for 5-6 hours and stand for 2-3 hours in an 8-hour work day).  Significantly, the Veteran did not even mention this service connected condition on his application for a TDIU as a cause of his unemployability.  See Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (holding that the Board may consider many factors when assessing the credibility and weight of lay evidence, including self-interest or bias, internal consistency, and consistency with other evidence). 
In sum, the Veteran has failed to meet his burden of presenting and supporting a claim for a TDIU.  See 38 U.S.C. § 5107(a) (providing that it is the appellant’s burden “to present and support a claim for benefits under laws administered by the Secretary.”).  When considering only his service-connected disabilities, the preponderance of the evidence is against a finding that they alone were so severe as to prevent him from following sedentary or non-sedentary employment.   As such, the benefit of the doubt rule is inapplicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Accordingly, entitlement to a TDIU is denied for the entire rating period on appeal. 
 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Kutrolli, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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