Citation Nr: 1702341 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 05-00 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from November 1, 2005 to December 16, 2006, to include whether the severance of TDIU was proper as of November 1, 2005 was proper. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active service from February 1981 to March 1981, and May 1981 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which discontinued the Veteran's TDIU, effective November 1, 2005. The Board remanded this case for additional development in May 2010. During the course of the remand, a rating decision dated in January 2015 granted entitlement to a TDIU, effective December 16, 2006 to May 23, 2008 (at which point the Veteran's combined disability rating for his service-connected disabilities is 100 percent). The Veteran did not appeal the January 2015 rating decision. Thus, the remaining issue for appellate consideration is whether the Veteran was entitled to a TDIU from November 1, 2005 to December 16, 2006, to include whether the severance of TDIU, effective November 1, 2005, was proper, as noted on the first page of this decision. The Veteran testified before a Veterans Law Judge at Board hearing in May 2009. The Veteran requested to testify at another Board hearing, after receiving notice that the Veterans Law Judge who proceeded over his hearing was no longer employed at the Board. However, he did not appear before the Board hearing that was scheduled in August 2016; nor did he offer any reason for missing the hearing. Therefore, the Veteran's hearing request is considered withdrawn and the Board will proceed with a decision on appeal. FINDINGS OF FACT 1. In an August 2005 rating decision, the RO discontinued the Veteran's TDIU, effective November 1, 2005; the TDIU had been in effect since November 13, 2000, less than five years. 2. The evidence of record clearly and convincingly demonstrates that the Veteran's employment during the period from November 1, 2005 to December 16, 2006, constitutes substantially gainful employment and that he engaged in this activity for a period of 12 consecutive months. CONCLUSIONS OF LAW 1. Severance of the TDIU from November 1, 2005 to December 16, 2006 was proper. 38 U.S.C.A. §§ 1155, 5112 (West 2014); 38 C.F.R. § 3.105(e), 3.344(c) (2016). 2. The criteria for entitlement to a TDIU due to service-connected disabilities are not met, effective November 1, 2005 to December 16, 2006. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2016). The Board notes that the regulations pertaining to the reduction of evaluations for employability status contain their own notification and due process requirements. See 38 C.F.R. § 3.105 (e), (i) (2016). For this reason, the Board concludes that the VCAA does not apply to the claim decided herein. When reduction in the evaluation of employability status is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105 (e) (2016). The Board finds that appropriate due process procedures were followed with respect to the TDIU severance. Specifically, in a May 2005 letter, the Veteran was informed of the proposed severance of his TDIU and of his right to a hearing and to submit evidence showing that such change should not be made. Thereafter, an August 2005 rating decision reduced the award prospectively, effective November 1, 2005. Thus, the due process procedures set forth in 38 C.F.R. § 3.105 (e) were met. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that has been associated with the claims file include the Veteran's VA medical records, VA examination reports, Financial Status Reports, and personal statements from the Veteran. The Veteran offered personal testimony at a May 2009 Board hearing. The Board hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); see also Procopio v. Shinseki, 26 Vet. App 76 (2012). The Board also finds there has been substantial compliance with the prior remand, and adjudication of the Veteran's claim may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the above, the Board finds that the duties to notify and assist the Veteran have been satisfied, and the Board will now consider the Veteran's claim on the merits. II. TDIU from November 1, 2005 to December 16, 2006 VA law provides that a total rating for compensation 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. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a) (2016). The Veteran was granted entitlement to a TDIU in a July 2002 rating decision with an effective date of November 13, 2000. This effective date was chosen because it was the Veteran's last date of employment. The Veteran met the schedular criteria for a TDIU, effective in 1999. In May 2005, the RO issued a rating decision in which it proposed to discontinue entitlement to individual unemployability because the RO had received evidence that the Veteran was able to secure and follow a gainful occupation. The RO noted that in December 2014, VA received an Income Verification Report from the St. Paul RO and a VA Form 5655, Financial Status Report, indicating that the Veteran was currently working as a teacher, and had done so since August 17, 2004. The RO also noted that the evidence showed gainful employment for the years 2001, 2002, and 2003, as verified by his employers. The Veteran participated in an informal conference in July 2005 and noted that he was missing so much work as a teacher that he would be fired if he continued to do so. He also noted the high cost of living The August 2005 rating decision in which the RO severed the Veteran's TDIU noted that even though the Veteran's service-connected disabilities affected his attendance at work, he had maintained gainful employment as a school teacher for more than 12 months. The RO also noted that there was no provision in law, which allowed for increased compensation due to various high costs of living. The Veteran's TDIU benefits were severed effective November 1, 2005, based on the RO's determination that the Veteran was engaged in a substantially gainful employment. Under 38 C.F.R. § 3.343 (c)(2), if a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of twelve consecutive months. Temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment. Under 38 C.F.R. § 3.343 (c)(1), in reducing a rating of 100 percent service-connected disability based on individual unemployability, caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. The "clear and convincing" standard requires that capacity for work be proven to a "reasonable certainty" but not necessarily be "undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). The clear and convincing standard of proof is an intermediate standard between preponderance of the evidence and beyond a reasonable doubt. Fagan v. West, 13 Vet. App. 48, 55 (1999); Olson v. Brown, 5 Vet. App. 430, 434 (1993). Under 38 C.F.R. § 4.16 (a), marginal employment shall not be considered substantially gainful employment. For purposes of this section, 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. On a VA Form 5655, Financial Status Report received in December 2004, the Veteran stated that he was working as a teacher since August 2004 and earning a gross monthly salary of $2520. The St. Paul RO also sent verification from the Veteran's employers that he had received gross wages of $49,790 in 2001; $52,128 in 2002; and $56,619 in 2003. An October 5, 2005 VA audiology note indicates that the Veteran was working as a teacher. A November 2008 VA Form 21-8940, "Veteran's Application for Increased Compensation Based on Unemployability," notes that the Veteran worked for 40 hours per week as a teacher from August 2001 to November 2003, earning $6050 highest gross monthly salary; 38.5 hours per week as a teacher from August 2004 to November 2005, earning highest gross monthly salary of $4,000; and 65 hours per week as an assistant principal from November 2005 to December 2006, earning a highest gross monthly salary of $9806. The Veteran testified at the May 2009 Board hearing that he last worked as an assistant principal on December 6, 2006. See May 2009 Board hearing transcript, p. 13. A September 2009 VA joints examination report also notes that the Veteran stopped working in 2006 as an assistant high school principal. On a December 2014 VA Form 21-4192, "Request for Employment Information in Connection with a Claim for Disability Benefits," the high school where the Veteran worked indicated that the Veteran worked from January 3, 2006 to January 3, 2007, supervising high school students and staff, working about 40 hours per week, and earning $75,000 during the 12 months preceding the last date of this employment. As noted above, 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. The Veteran's salary reported from 2001 to 2006 has been well above the poverty threshold. In 2006, for instance, the poverty threshold figure for a single individual under age 65 was $10,488.(See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html.). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a veteran's earned annual income prior to having been awarded the 100 percent rating based on individual unemployability. In addition there is no indication that his employment was in a protected environment, such as a family business or sheltered workshop. While the Veteran's high school/ employer noted on the VA Form 21-4192 in December 2014 that concessions were made for him, such as the use of a golf cart, resting when necessary, and leaving when necessary, this does not constitute a "sheltered working environment." Thus, his employment is not considered marginal employment. See 38 C.F.R. § 4.16(a). Once it is determined that the Veteran has begun to engage in a substantially gainful occupation, "the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months." 38 C.F.R. § 3.343 (c)(2). The Board finds that this requirement has been met in the case at hand. The evidence reflects that the Veteran began his substantially gainful employment no later than in 2001 and that he maintained this employment for at least 5 years, including the entire 12-month period of 2006 through January 3, 2007. VA did not propose severance of the Veteran's TDIU until May 2005, which is approximately four years after the Veteran became gainfully employed. The Veteran's TDIU was not actually severed until November 1, 2005, which means the Veteran was actually paid for his entitlement to TDIU during a period of substantially gainful employment. As it was demonstrated that the Veteran had maintained his occupation for a period of 12 consecutive months, the Board finds that VA followed the proper protocol for severing the Veteran's TDIU under 38 C.F.R. § 3.343 (c)(2). For the reasons discussed above, the Board finds that the above evidence clearly and convincingly shows that the Veteran was substantially gainful employed, and that he engaged in such employment for a period of at least 12 consecutive months including the period from November 1, 2005 to December 16, 2006. Therefore, the severance of the Veteran's TDIU was proper. To the extent the service-connected disabilities affected the Veteran's earning capacity, the assigned schedular ratings for the disabilities compensated the Veteran for such impairment. Thus, entitlement to a TDIU rating is not warranted from November 1, 2005 to December 16, 2006. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a TDIU from November 1, 2005 to December 16, 2006 is denied; severance of TDIU, effective November 1, 2005 was proper. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs