Citation Nr: 18160510
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 08-01 742
DATE:	December 26, 2018
ORDER
A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 10, 2001, is denied.
FINDING OF FACT
Prior to May 10, 2001, Veteran’s service-connected disabilities did not render her unable to secure or follow a substantially gainful occupation consistent with her educational and occupational background.
CONCLUSION OF LAW
The criteria for a TDIU prior to May 10, 2001, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active military service from February 1986 to October 1994.  This matter comes before the Board of Veterans’ Appeals (Board) from a June 2006 and August 2006 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted a TDIU as of June 29, 2005, and granted service connection for an acquired psychiatric disorder as of July 12, 1996, respectively.  In this regard, the Board previously found that the Veteran’s claim for a TDIU prior to June 29, 2005, was part and parcel of her claim for a higher initial rating for her acquired psychiatric disorder.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).
During the course of the appeal, a 100 percent rating for the Veteran’s acquired psychiatric disorder and entitlement to special monthly compensation (SMC) at the housebound rate was awarded as of May 10, 2001, thereby rendering the claim for a TDIU as of such date moot.  However, entitlement to a TDIU prior to such date remained viable on appeal.
In May 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the Agency of Original Jurisdiction (AOJ) and, in April 2012, she testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.  In July 2012 and June 2015, the Board remanded the issue for further development.
In an April 2017 decision, the Board denied an entitlement to a TDIU prior to May 10, 2001.  The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court).  In July 2018, the Court granted a Joint Motion for Remand (JMR) that vacated the April 2017 Board decision as to such issue.  The matter now returns for further appellate review.
The Board notes that, following the issuance of the January 2016 supplemental statement of the case pertinent to the Veteran’s TDIU claim, additional evidence, to include Vocational Rehabilitation Records (VRE), Social Security Administration (SSA) records, and service treatment records (STRs), have been received.  However, as such includes information that is duplicative of that previously considered by the AOJ and/or does not pertain to the relevant time period on appeal, no prejudice results to the Veteran in proceeding with a decision at the present time.  See 38 C.F.R. § 20.1304(c). 
Entitlement to a TDIU prior to May 10, 2001.
As the Veteran’s TDIU claim stems from her claim for a higher initial rating for her service-connected acquired psychiatric disorder, the issue before the Board is entitlement to a TDIU from July 12, 1996, the date service connection for such disability was established, to May 10, 2001, the date SMC at the housebound rate was awarded. 
Under the applicable criteria, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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).  Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  See 38 C.F.R. § 4.16(b).
Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16.
Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App.447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor).
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 the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
“Substantially gainful employment” is considered “work that involves doing significant productive physical or mental duties and is done for pay or profit” even if the work “is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before.” In other words, a “substantially gainful occupation” is “one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income” prior to when he was last employed.  See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations).
Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a).  Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  Id.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 
In this case, from July 12, 1996, to May 10, 2001, the Veteran was service-connected for an acquired psychiatric disorder, evaluated as 30 percent disabling; headaches, evaluated as 10 percent disabling; status-post bunionectomy with k-wire fixation of the left 1st metatarsal phalangeal joint and arthroplasty of 2nd proximal interphalangeal joint with neuritis of toes 1 and 2 (left foot disorder), evaluated as 30 percent disabling; status-post bunionectomy with k-wire fixation of the right 1st metatarsal phalangeal joint and arthroplasty of 2nd proximal interphalangeal joint (right foot disorder), evaluated as 20 percent disabling; neuritis of toes 1 and 2 (toe disorder), evaluated as 10 percent disabling; degenerative arthritis changes in the medial compartments and femorotibial joint of the right knee (right knee disorder), evaluated as 30 percent disabling; degenerative arthritis changes in the medial compartments and femorotibial joint of the left knee (left knee disorder), evaluated as 20 percent disabling; and tympanic membrane perforation on the right (right ear drum disorder), evaluated as noncompensably disabling.  As the Veteran’s left foot, right foot, right knee, and left knee disorders are all orthopedic in nature, they may be considered one disability for TDIU purposes, which results in a rating of 60 percent.  Furthermore, her combined rating from July 12, 1996, to May 10, 2001, was 90 percent.  Accordingly, she meets the schedular criteria for a TDIU.
However, the Board finds that the Veteran’s service-connected disabilities did not render her unable to secure and follow a substantially gainful occupation consistent with her educational and occupational background prior to May 10, 2001.
In this regard, the Veteran’s DD 214 reflects that she separated from service in October 1994 and her primary specialty had been information management journeyman for the past 8 years, which included performing a variety of administrative tasks.  In a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) submitted in June 2005, the Veteran reported having 3 years of college education.  She reported working 32 hours per week as a waitress in 1995 earning $600 per month.  She also reported working 20 hours per week as a janitor in 1995 earning $600 per month.  She described leaving employment due to anxiety and her physical condition.  In a VA Form 21-8940 received in November 2015, the Veteran reported having only a high school education.  She also indicated that she worked as a waitress for 20 hours a week from June 1995 to December 1995, earning $400 per month, and as a janitor for 20 hours a week from February 1996 to May 1996, earning $600 per month.  In light of such, the Board finds that the Veteran’s employment during such time periods was marginal in nature. 
Further, while the Veteran’s service-connected disabilities resulted in some functional impairment consistent with her combined rating of 90 percent, the probative evidence fails to show that such rendered her unable to unable to secure or follow a substantially gainful occupation consistent with her educational and occupational background prior to May 10, 2001.
In this regard, the Board initially finds that, consistent with her reports and the objective examination reports, the Veteran’s service-connected foot, knee, and toe disorders caused pain and limitation of motion, which resulted in difficulty with physical activity.  The Board does not dispute that these disabilities limited the Veteran’s ability to undertake physically demanding employment.  See, e.g., VA examination (March 1997).
As pertinent to the remainder of her service-connected disabilities, the Veteran reported that her service-connected headache disorder resulted in throbbing pain behind her eyes several times monthly.  See, e.g., VA examination (December 1996).  She also indicated that her right ear drum disorder resulted in ear pain, tinnitus, and dizziness.  See VA examination (May 2007).  The Veteran further alleges that her psychiatric disorder resulted in symptoms of disorganization, an inability to concentrate, fatigue, anxiety, crying spells, depression, forgetfulness, weakness, dizziness, and tremors particularly when under stress.  She described episodes of difficulty arising from bed with variable sleep.  She described feelings of low self-esteem, insecurity, and discomfort with authority figures.  The Veteran’s mother described her as being unable to function since her military discharge with symptomatology of headaches, depression, memory impairment and appearing as if in a daze.  The Veteran was generally described as being in a “very bad” condition.
Also submitted in support of the Veteran’s claim is an October 1996 VA psychologist assessment that indicates that she maintained that she had frequent headaches, memory, impairment, intrusive thoughts about her military experiences and mood swings.  The Veteran further reported that she was not suicidal, but she had frequent crying spells because of her inability to function as she once did and her overall self-esteem was greatly affected.
However, despite the Veteran’s reports of severe functional limitations associated with her service-connected disabilities, such is not supported by the objective evidence of record and is contradicted by the Veteran’s own actions during the appeal period.
Specifically, despite her report of an inability to function, the Veteran was able to work on a part-time basis as a waitress and janitor, and reported spending time taking care of her child, shopping, going to church, eating out, and enjoying her hobbies of travelling and enjoying nature.  Moreover, during this time period, the Veteran demonstrated no impairment of hygiene, speech, orientation, cognition, memory, concentration, thought process, or judgment.  See VA examinations (December 1994 and December 1996); VA clinic records (August 1995 and April 2000).  She denied paranoia, delusions, suicidal ideations, and homicidal ideations.  Id.  Rather, the only significant clinical findings concerned her poor insight (VA examination (December 1994)), hand tremors with stress (VA clinic record (January 1995)), depressed mood (VA clinic records (August 1995 and October 1999)), and labile affect (VA examination (December 1996)).
Overall, the Board affords greater probative weight to the assessments regarding the Veteran’s overall psychological, social, and occupational functioning made by the VA examiners in December 1994 and December 1996 as these examiners based their assessment based upon the entirety of the record, to include review of the claims folder, with specific mental status examination findings supporting their conclusions, and noted throughout her VA treatment records as such assessments were made in connection with treatment where both the patient and provider have a strong motive to accurately report symptoms and limitations.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”).
Consequently, for the time period from July 12, 1996, to May 10, 2001, the Board finds by a preponderance of the probative evidence that the Veteran’s acquired psychiatric disorder was primarily manifested by disturbance of mood, impairment of insight, hand tremors with stress, labile effect and pre-occupation with personal problems which resulted in no more than definite impairment in the ability to establish or maintain effective and wholesome relationships with people with psychoneurotic symptoms resulting in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce no more than definite industrial impairment.
Moreover, in February 2013, a VA examiner concluded that objective evidence from repeated evaluations in the Veteran’s record showed contradictory evidence as to her assertion that her service-connected disabilities rendered her unemployable prior to May 10, 2001.  As rationale, the examiner explained that the objective evidence in the service treatment records shows that the Veteran, from her service-connected disabilities, was capable of substantially gainful employment between 1996 to 2001.  The examiner further stated that the Veteran’s physically active employment would have been limited due to occasional flares of her back pain and difficulty with stairs/stooping due to both her back and knee disabilities; however, she could have still worked in positions consistent with her prior administrative job experience.
Based on the foregoing, the Board finds that the Veteran’s service-connected disabilities did not render her incapable of securing and maintaining substantially gainful employment from July 12, 1996, to May 10, 2001.  In this regard, while the February 2013 VA examiner noted that the Veteran’s service-connected disabilities would impact her employability by resulting in some physical limitations, those described would not prevent or prohibit employment consistent with the Veteran’s educational and occupational background.  Specifically, while the VA examiner noted that the Veteran’s physically active employment would have been limited due to occasional flares of her back pain and difficulty with stairs/stooping due to both her back and knee disabilities, the examiner also indicated that the Veteran could have still worked in positions consistent with her prior administrative job experience.  
In this regard, the Board affords great probative weight to the February 2013 VA examiner’s opinion as such is supported by the contemporaneous objective evidence of record as discussed previously.  Furthermore, it is clear from the record that the Veteran had the educational background, i.e., a high school degree with 3 years of college, and developed the administrative skills necessary to be successful in a similar position to that which she held in the military, i.e., information management journeyman.  
Moreover, the contemporaneous evidence reflects that the Veteran was capable of the physical and mental acts necessary to secure and follow a substantially gainful occupation.  In this regard, while the Veteran’s employment during the appeal period was marginal in nature, she was nonetheless able to carry out the duties associated with being waitress, to include interacting with customers, co-workers, and managers, performing basic math in computing bills and change, maintaining cognitive awareness of customers’ orders, and remaining on her feet, and being a janitor, to include performing the physical acts necessary to clean, and ensuring completion of her assigned tasks.  To be clear, the Board is not relying on the fact that the Veteran held such positions to demonstrate that such was evidence of substantially gainful employment, rather only that she was capable of performing the duties associated with such positions, which may then be able to be utilized in securing and following a substantially gainful occupation.  
Additionally, during the appeal period, the Veteran reported taking care of her child, shopping, going to church, eating out, and enjoying her hobbies of travelling and enjoying nature.  In this regard, the Board notes that, as a mother, the Veteran cared for her children, to include providing for their physical needs, purchasing groceries, and managing her finances.  While the Board is not relying on the fact that the Veteran was raising her children to demonstrate that such is akin to a substantially gainful employment, it is significant to note that, by performing her parental duties, she demonstrated skills that would be transferable to a substantially gainful occupation, to include the ability to interact with her children and other members of the community to the extent necessary to provide for their needs, and perform basic math in purchasing goods and maintaining financial solvency.  If she were truly as disabled by her acquired psychiatric disorder as she claims, she would be unable to perform such tasks.  Nonetheless, even excluding such evidence from consideration, the Board finds that, as discussed previously, the most probative evidence of record demonstrates that the Veteran, despite the limitations associated with her service-connected disabilities, was capable of performing the physical and mental acts necessary to secure or follow a substantially gainful occupation consistent with her educational and occupational background. 
In reaching such determination, the Board acknowledges that the SSA found the Veteran to be totally and permanently disabled under Social Security Laws and Regulations due to a primary disability of affective/mood disorders and a secondary disabilities of muscle ligament and fascia disorders as of June 1996.  In this regard, the Board is not bound by SSA’s findings.  See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993).  In this regard, while SSA found that the Veteran’s psychiatric disability and physical disabilities rendered her unemployable, the Board finds that such determination is in direct conflict with the determination made by the February 2013 VA examiner, and contemporaneous VA examination reports dated December 1994 and December 1996, and VA clinic mental health records dated throughout the appeal period, to specifically include those in May 1995 and June 1999.  Furthermore, a review of SSA’s administrative decision reflects that the SSA examiner construed portions of the AOJ’s February 2006 decision as purportedly “declaring the [c]laimant disabled.”  The AOJ’s decision, however, assigned an initial 30 percent rating for the Veteran’s acquired psychiatric disorder.  Therefore, the Board accords greater probative weight to the February 2013 VA examiner’s opinion, as well as the contemporaneous VA examination reports and VA clinic records, than the determination rendered by SSA under a different set of regulations. 
Based on the foregoing, the Board finds that the Veteran’s service-connected disabilities did not render her unable to secure or follow a substantially gainful occupation consistent with her educational and occupational background prior to May 10, 2001.  In this regard, while she does have some limitations associated with her acquired psychiatric disorder, headaches, bilateral foot disorder, toe disorder, bilateral knee disorder, and right ear drum disorder, which is reflected by the assignment of a combined 90 percent rating, the probative evidence does not demonstrate that such disabilities, alone or in combination, are of sufficient severity to produce unemployability.  As such, a TDIU prior to May 10, 2001, is not warranted.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied.  
 
A. JAEGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Brennae L. Brooks, Associate Counsel 

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