Citation Nr: 0709298 Decision Date: 03/29/07 Archive Date: 04/16/07 DOCKET NO. 06-32 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether termination of the veteran's total disability rating based upon individual employability as a result of service- connected disabilities (TDIU) was proper. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and B.W. ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from July 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The veteran testified at Travel Board hearing before the undersigned Veterans Law Judge in November 2006. The veteran's made a motion to advance his on the docket in at the time of his Travel Board hearing in November 2006. The motion was granted in December 2006. FINDINGS OF FACT 1. The veteran was employed by the Postal Service from 1969 to 1979. There is no evidence of record to show any other employment prior to 1998. 2. The veteran was granted entitlement to a TDIU rating in January 1994, effective from October 19, 1993. The veteran's combined service-connected disability rating was 80 percent and all originated from the same incident in service. The veteran also received special monthly compensation for the loss of use of his left hand. 3. The veteran was elected as a county commissioner in 1998. He continues to serve in that capacity and has received income for that service since 1998. 4. The evidence of record does not establish that the veteran was no longer unemployable or able to obtain and maintain substantially gainful employment at the time his TDIU rating was terminated in June 2006. CONCLUSION OF LAW The termination of TDIU was not proper, and TDIU thus should be restored. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.340, 3.341, 3.343, 4.16 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The veteran served on active duty from July 1965 to August 1968. He suffered a number of shrapnel fragment wounds (SFW) to his head and body while serving in combat in the Republic of Vietnam in June 1967. The veteran required several months of treatment to recover from his wounds. He was retired from the military, by reason of physical disability, in August 1968. The veteran submitted his claim for VA disability compensation benefits in September 1968. The veteran was granted service connection for SFWs of the left arm and hand, with a fracture of the distal ulna, rated as 50 percent disabling, residuals of a SFW of the scalp, residuals of SFWs of the left shoulder and armpit, both lower extremities, and buttocks, and a burn scar on the dorsal aspect of the right hand, all rated at a noncompensable level in February 1969. His combined disability rating was 50 percent. The veteran submitted a claim for increased ratings, service connection, and nonservice-connected disability pension in April 1980. He reported that he had last work for the Postal Service in October 1979. He also reported that he had had multiple shrapnel fragments removed over the past year. The Postal Service was contacted for information on the veteran's employment. A response indicated that the veteran was removed because of unavailability for work. The veteran's disability for multiple SFWs of the left upper extremity, with ulnar nerve neuropathy and left claw hand, was increased to 60 percent in December 1980. He was also awarded special monthly compensation for the loss of use of his left hand and entitlement to an automobile allowance. His combined service-connected disability rating was now 60 percent. The veteran's representative submitted copies of records from the Postal Service in 1981. They documented the personnel action involving the veteran. In particular the records show that the veteran was off from work, due to illness, on a significant number of occasions between February and June 1979. The exact nature of the illness was not specified. The veteran was granted service connection for an additional disability related to his original injury in June 1981. The award was for a SFW of the left calf and the veteran was assigned a 10 percent disability rating. His combined disability rating remained at 60 percent. The Board issued a decision that denied a claim for a TDIU rating but also increased the veteran's disability rating for SFWs of his left arm and SFWs of the left buttock in March 1982. The veteran was found to meet the criteria for a 20 percent rating for each of those disabilities. The RO issued a rating decision that implemented the Board decision in March 1982. The veteran's combined disability rating was now 80 percent. The veteran submitted a formal claim for a TDIU rating in October 1984. He reported that he had last worked for the Postal Service in October 1979. He had worked for the Postal Service from January 1969 to October 1979. The claim was denied in November 1984. The veteran testified at a Central Office hearing, in regard to other issues, in April 1989. At that time he noted that the Postal Service had given him a disability retirement based on disabilities of the back and lower extremities. The veteran's rating for his SFW of the scalp was increased to 10 percent in January 1990. His combined disability rating remained at 80 percent. Associated with the claims folder are VA counseling and vocational rehabilitation folders for the veteran. The folders show that the veteran had an initial psychological screening in December 1980. However, no formal report was provided. He also sought counseling in 1991. He was unable to attend a counseling appointment due to a conflict with a medical appointment. No additional entries were made in regard to counseling or a vocational rehabilitation determination. The veteran submitted a new claim for a TDIU rating in October 1993. His last employment was still reported as being with the Postal Service in October 1979. The veteran also reported that he had three years of college. The RO granted the veteran's claim for a TDIU rating in January 1994, effective from the date of claim of October 19, 1993. No examination was conducted. The decision was based on the evidence of record at that time. The veteran submitted confirmation of his unemployed status by way of completing a VA Form 21-4140, Employment Questionnaire, in March 1995, March 1996, March 1997, and March 1998. The veteran's yearly report differed when he reported that he was an elected public official in March 1999. The veteran informed the RO that he was a county commissioner and had taken the oath of office for a two year term in December 1998. He reported that he attended meetings for approximately 7-10 hours per month. He was paid a gross monthly salary of $1,217.33 (approximately $14,608 per year). The veteran further reported that he had contacted the RO prior to accepting the position and that he was advised that serving as an elected official would not affect his unemployability status. The RO issued a rating decision, continuing the veteran's entitlement to a TDIU rating, in April 1999. The rating decision noted that the veteran's position was largely ceremonial, requiring primarily voting and meetings, and that the duties generally required 7-10 hours per month. Further it was determined that employment "in such a flexible protected, and elected capacity at such limited hours is clearly not representative or marginal employment or demonstrative of regained ability to perform marginal employment on a sustained basis." The rating decision cited to the version of 38 C.F.R. § 4.16 (1995) in effect at the time and M21-1, Part VI, section 7.09. (Manual used by the Veterans Benefits Administration (VBA) in developing, and deciding claims for benefits). The RO wrote to the veteran, as opposed to sending him forms to return, in March 2000, March 2002, March 2003, and March 2004. The letters advised that the veteran was receiving disability compensation at the 100 percent rate because the evidence showed that he was unable to work because of his service-connected disabilities. The veteran was further advised that he was to notify VA immediately if he began working or became self-employed. Such a change in status might result in a decrease in his rate of disability compensation. Finally, the veteran was informed that VA conducted a computer match each year with the Internal Revenue Service (IRS) and Social Security Administration (SSA) in order to determine if the veteran is in receipt of wages or income from self-employment. The RO also wrote to the veteran in October 2004. The letter referenced a letter from February 2004 wherein the RO said it had informed the veteran that it was discovered that he had income during 2000. The February 2004 letter is not of record. The current letter went on to say that, based on a review of the file and evidence provided by the veteran, it was determined that the income would not effect his VA benefits. It is not clear what evidence was provided by the veteran as there is no material associated with this letter. Nor is the amount of income noted. The RO also wrote to the veteran in March 2005. The letter was identical to those from 2000 to 2004 in advising the veteran to report income or wages. In October 2005, the RO wrote to the veteran and advised that evidence had been received to show that the veteran had income in 2002. The amount was listed as $24,499 and the source of information was the county finance department for the veteran's county. The veteran was informed that he had to verify the accuracy of the reported earnings. The veteran was advised that he would be informed of any future proposal to reduce his benefits. The veteran responded in November 2005. He said that he received income from the county because he was a county commissioner. The veteran did not specify the amount but he did not dispute the amount reported by the RO. The RO issued a rating decision in March 2006 and proposed to terminate the veteran's TDIU rating based on his being able to secure and follow a gainful occupation. The RO noted that evidence showed the veteran had been a county commissioner since 2002 and that this was evidence of gainful employment. Notice of the proposed reduction was provided that same month. The veteran was advised of his procedural rights as to when a reduction would take place, his right to challenge the reduction, and to have a hearing in the matter. The veteran wrote to the RO in April 2006. He explained how he had contacted the RO prior to running for office and that it was determined that his position as a county commissioner would not be deemed gainful employment. He said it was also decided that his payment was in excess of that for marginal employment but that his duties did not constitute evidence of his ability to maintain gainful employment. He said that his duties had essentially remained the same, as well as his compensation, although he had received cost of living raises. He had served as a county commissioner since 1998. The Board notes that VA treatment records for the period from November 1998 to February 2006 have been associated with the claims folder. In addition, the veteran underwent a VA examination in May 2006 to assess several of his disabilities. None of the medical evidence added to the claims folder demonstrates any improvement in his service- connected disabilities. Moreover, the veteran was not examined during that period for a determination as to whether his service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment. The RO issued a rating decision that, inter alia, terminated the veteran's TDIU rating in June 2006. The effective date of the termination was established as September 1, 2006. The rating decision also terminated the veteran's entitlement to Dependents' Educational Assistance (DEA) as those benefits were predicated on the TDIU rating. The rating decision found that the veteran had maintained his occupation as a county commissioner for a period of 12 consecutive months and actually since 2002. Notice of the termination of the TDIU rating and entitlement to DEA benefits was provided on June 29, 2006. The veteran expressed his disagreement with the decision. The RO issued a statement of the case (SOC) in October 2006. The SOC provided an extended discussion of marginal employment and how it is determined. The RO noted that the veteran's income as a county commissioner exceeded the yearly amount established by the U. S. Department of Commerce, U. S. Census Bureau, as the poverty threshold for one person. In particular the veteran's income was approximately $25,000 and the poverty threshold was listed as $10,600. The RO also cited to the United States Court of Appeals for Veterans Claims (Court) decision of Faust v. West, 13 Vet. App. 342 (2000). In that decision the Court looked at the definition of substantially gainful activity used by the SSA for reference. Ultimately, the Court said that where an individual was employed at an occupation that provided an annual income that exceeded the poverty threshold for one person, irrespective of the number of hours or days that the person actually worked and without regard to the person's earned income prior to receipt of a 100 percent rating, based on TDIU, such employment constituted, as a matter of law, a substantially gainful occupation and "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1). Faust, 13 Vet. App. at 356. The veteran and B.W. provided testimony at a Travel Board hearing in November 2006. The veteran's representative began by citing to the 1999 rating decision that had determined the veteran's employment as a county commissioner was flexible, protected employment and that the veteran's limited hours were not representative of marginal employment or demonstrative of regained ability to perform marginal employment on a sustained basis. The representative also noted that the Court in Faust had relied heavily on a SSA definition of employability because there was no applicable definition in VA law. The representative further noted that the VBA Adjudication Manual, M21-1, had been rewritten to include what he said was a definition of substantially gainful employment, and cited to M21-1 Rewrite (R), Part 4, Subpart 2, Chapter 2, Section F, Paragraph D (M21-1R, Part 4, Subpart ii, 2.F.D.4), dated in December 2005. The veteran testified regarding his duties and obligations as a county commissioner. He noted the various ceremonial functions he would perform as well as the ministerial duties required such as serving on various committees, being present for hearings, and voting on issues. He said that he did not receive any additional compensation for being on the several committees; such tasking came with his job. The veteran said the number of hours spent on the job varied, to include whether it was the budget cycle or scheduled meetings. He said it could range from no hours to six hours a day and even several days in a row with no activity. He said the current compensation was approximately $25,000 per year. He had been a county commissioner since winning his first election in 1998 and was currently up for reelection. The veteran further testified that were times when he was unable to perform his duties, either due to doctor's appointments or as a result of problems from his disabilities. He had excused himself from meetings or left early because of pain and problems with his legs. The veteran's witness, B.W. testified that he was involved with veterans' issues and had known the veteran for some time. He also had a lot of interaction with the veteran on veterans' issues and at county and committee meetings. He testified that he had personally observed the veteran have to excuse himself from meetings because of pain from his injuries. The veteran provided information regarding the geographical means test (GMT) that is used by the Veterans Health Administration (VHA) in making determinations on enrollment of veterans in the VHA healthcare system. The GMT for the veteran's county, for a family of four, was given as $41,000. It was argued that this was considered by VA to be a standard for determining marginal employment. The veteran provided further testimony regarding his duties and his availability to constituents. He said his availability was mostly by telephone as he really did not have an office he was required to report to on a daily basis. He did have an office but he was not limited to the office in order to conduct his affairs. The veteran also said that, generally, there were two advertised meetings of the commissioners per month. He also attended committee meetings for various committees, none of which were on an established regular basis. The general commissioner meetings lasted between 4-5 hours per meeting, and the other committee meetings could last an hour or a little more depending on the agenda. Finally, it was noted that the RO had information regarding the veteran's income in 1999 and again in 2004 and still continued his TDIU rating. II. Analysis At the outset, the Board notes that the procedural requirements for notice of reduction/termination of a disability rating were met in this case. See 38 C.F.R. § 3.105(e) (2006). Regulations provide that a total disability rating based on individual unemployability is warranted when the evidence shows the veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2006). Total disability may or may not be permanent. Permanence of total disability exists when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. 38 C.F.R. § 3.340 (2006). Marginal employment is not considered to be substantially gainful employment. 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. 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. 38 C.F.R. § 4.16(a) (2006). The veteran's TDIU rating was in effect for almost 13 years at the time it was terminated, effective from September 1, 2006. The requirements for a reduction in the evaluation for disabilities in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which require that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). In addition, 38 C.F.R. § 3.344(c)(1) (2006) provides that actual employability be established by clear and convincing evidence. The veteran's case is unique in that there was no reduction of any of the veteran's separate ratings for his several service-connected disabilities. Thus there was no reduction in the combined disability rating of 80 percent. Further, there is no medical evidence of record to show that there has been any improvement of the veteran's service-connected disabilities. Rather, the veteran's case turns on the issue of whether his serving as a county commissioner and receiving income of approximately $25,000 per year constitutes evidence that the veteran was no longer unemployable and capable of substantially gainful employment. The Board notes that the RO relied heavily on the definition of a substantially gainful occupation promulgated by the Court in Faust. However, a further reading of the decision notes that the facts of that case are dissimilar from the current case. The veteran in Faust was self-employed and making a substantial income. His original grant of TDIU was based mostly on non-medical evidence, namely evidence of his lack of earnings, rather than on an assessment of his being unable to obtain and maintain substantially gainful employment. Faust, 13 Vet. App. at 349. The veteran had a single disability, post-traumatic stress disorder (PTSD). The Court held that it was appropriate for the RO to also rely on non-medical evidence, i.e. income, in determining "improvement" in the veteran's service-connected PTSD, his only disability. The Court also said that any decision to reduce a rating must be based on a review of the entire record. Id. at 350. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In Faust, the veteran had been employed in the same profession for a number of years. The only changes were his level of income from that employment. He also said that he was capable of earning more than twice his current income but for symptoms of his disability. In the current case, the veteran was employed with the Postal Service from 1969 to 1979, when he was retired by reason of disability. There is no evidence of record of his having engaged in any other employment, substantial or otherwise, at any time from 1979 until he was elected to the county commission in 1998. The veteran has not alleged that he is capable of even greater earnings. Moreover, unlike the Faust case, there is no reduction of any disability rating in the current case, to include the veteran's loss of use of his left hand in addition to his combined 80 percent disability rating. The only similarity is that Faust was employed as was the veteran in this case. The evidence in this case shows that the veteran was employed as a county commissioner since 1998. However, as the Court in Faust noted, for the purposes of the reduction of a TDIU rating, actual employment is not synonymous with actual employability. Id. at 354 (noting that 38 C.F.R. § 4.16 considers more than simply whether the claimant can or cannot work at all). There must be a finding that the veteran is no longer unemployable. The Board notes that the Federal Circuit has held that a veteran does not have to demonstrate 100 percent unemployability in order to prove that he cannot follow a substantially gainful occupation. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Further, M21-1R has been amended to define substantially gainful employment "as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." M21-1R, Part 4, Subpart ii, 2.F.4.D. The veteran's income does exceed the standard for showing marginal employment. However, his income does not exceed the Geographic-based Means Test (GMT) promulgated by VHA for assessing the income levels for the veteran's county. Information from the VHA website shows a median income of $61,800 for a family of 4 in 2005 in the veteran's county. In assessing a veteran's eligibility for enrollment the VHA has established $41,000 as the limit for a veteran and one dependent. A veteran with two dependents has an income level of $46,150 for the same consideration. In addition, VHA Financial Income Thresholds for VA health Care Benefits was established as $31,013 for a veteran with one dependent in 2005. According to the VHA website, that income level would entitle noncompensable rated veterans and nonservice- connected veterans to free VA health care. Such information is cited to show the standards of living in the veteran's community. The Board acknowledges that the VHA determined means tests are not dispositive in evaluating issues involving substantially gainful employment. However, they are illustrative of circumstances pertinent in evaluating a facts found basis for determining a veteran's ability to engage in such employment. The applicable M21-1R definition of substantially gainful employment instructs that such an employment determination requires comparison of earnings in the particular occupation in the community where the veteran resides. Here the comparison can only be to the other commissioners that serve with the veteran. Such a position is a part-time position and other commissioners maintain their outside employment and do not rely, or do not rely solely, on the income derived from their status as a county commissioner. Further, as acknowledged by the RO in the 1999 rating decision, the veteran's employment is in a protected environment. His daily hours are essentially his to set; he does not report to anyone and does not have a minimal number of hours to work. He attends meetings as required if he is able to and misses meetings if his disabilities preclude him from attending or require him to leave early. He lost his job with the Postal Service after 10 years due to his unavailability for work. In his current position, he does not face that threat. The claimant is a severely disabled veteran. He has multiple service-connected disabilities stemming from his being wounded in combat. This includes the loss of use of his left hand. He has found a means to be a part of his community and to contribute to the welfare of that community, to include other veterans, by his service as a county commissioner. He represents the embodiment of the soldier-citizen through his service. After conducting a thorough review of the entire record, the Board finds that the veteran's employment as a county commissioner does not demonstrate that he is employable. Further, the evidence of record does not demonstrate that the veteran was capable of substantially gainful employment at the time his TDIU rating was terminated in June 2006. The veteran's status as a county commissioner, while paying him more than that used to determine marginal employment, does not constitute marginal employment on a facts found basis. Accordingly, because he was not employable and not able to engage in substantially gainful employment because of his work as a county commissioner, the termination of his TDIU rating was not proper and the rating is restored. ORDER The termination of TDIU was not proper, and TDIU is restored. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs