Citation Nr: 1802546 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-31 958 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 1, 2008. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from October 12, 1966, to July 30,1969; February 13, 1974, to July 23, 1980; November 24, 2001, to November 25, 2001; January 12, 2002, to January 13, 2002; and March 10, 2004, to March 20, 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the VA RO in St. Petersburg, Florida. The issue of entitlement to TDIU was remanded by the Board in September 2014 for further development. In February 2015, the Board denied the claim. Subsequently, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2016, the Court vacated the Board decision and remanded the Veteran's claim for action consistent with the directives of a Memorandum Decision. In March 2017, the Board remanded the claim for further development. Subsequently, the RO granted entitlement to TDIU, effective January 1, 2008, in an August 2017 rating decision. The issue of entitlement to TDIU prior to January 1, 2008, has been returned to the Board for further consideration. The Board notes that additional medical evidence was associated with the claims file after the most recent supplemental statement of the case (SSOC) was issued with respect to this appeal without a waiver of review by the Agency of Original Jurisdiction. As this evidence does not relate to the Veteran's employability prior to January 1, 2008, the Board will proceed to adjudicate the claims as done below with no prejudice to the Veteran. FINDING OF FACT Prior to January 1, 2008, the evidence of record does not reflect that the Veteran was rendered unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW Prior to January 1, 2008, the criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340 , 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. In 2017, the Board remanded this case to attempt to obtain VA treatment records and schedule the Veteran for a VA examination. All requested development has been conducted. Neither the Veteran nor his representative has raised any 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). Thus, the Board need not discuss any potential issues in this regard. In April 2014, the Veteran had a hearing before the undersigned. He has not alleged any deficiency with his hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Total disability based on unemployability exists where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. When the schedular rating is less than total, a TDIU may be assigned if the Veteran meets certain schedular criteria under 38 C.F.R. § 4.16 (a) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there are two or more disabilities, at least one disability should be rated at 40 percent or more and the combined evaluation should be 70 percent or more. 38 C.F.R. § 4.16 (a). For the purpose of determining if there is one 60 percent disability, multiple disabilities resulting from a common etiology will be considered as one disability. Id. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341 , 4.16, 4.19. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). For purposes of 38 C.F.R. § 4.16, 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 (Census), as the poverty threshold for one person. Even where earned annual income exceeds the poverty threshold, marginal employment may exist when the Veteran's employment is limited to employment in a protected environment, such as a family business, to self-employment, to odd jobs, or to a sheltered workshop. In this case, the Board notes that the Veteran submitted his claim for entitlement to TDIU on June 8, 2007, and he has been granted TDIU effective January 1, 2008. As discussed in the Board's 2015 decision, although he did work part-time in 2008 (and in some of the subsequent years), his income was below the poverty threshold in 2008. Therefore, the RO granted TDIU beginning January 1, 2008, the year his part-time earnings were marginal in nature. However, since he filed his TDIU claim in 2007, the period of time on appeal includes consideration of his employment status in 2007. On his TDIU claim on June 8, 2007, he stated that he was working as a driver for a transport company 25 hours per week and making approximately $1,800 per month. The Veteran has submitted a Form W-2 Wage and Tax Statement from 2007 noting a yearly compensation of $14,761.24. According to the U.S. Department of Commerce, Census, the poverty threshold in 2007 for two people under 65 years old (the Veteran and his spouse, his sole dependent) was $13, 954. As such, it is clear from the evidence of record that the Veteran's income for the period of time on appeal (which is prior to January 1, 2008) exceeded the amount established by the U.S. Department of Commerce, Census as the poverty threshold and was, in fact, gainful employment. With regard to the whether the Veteran's employment was limited during this time to employment in a protected environment, such as a family business, to self-employment, to odd jobs, or to a sheltered workshop, in an August 2007 employment information form from his employer (a motor transport company), it was confirmed that the Veteran had worked there since January 2006 for 25-40 hours per week. In an October 2009 statement, the Veteran indicated that he had continued to work for this employer for the past 3 and a half years on a part-time basis. Therefore, as the Veteran's 2007 Form W-2 indicated that his income for 2007 exceeded the established poverty threshold, and the evidence of record does not reflect the Veteran's employment during that year was limited to employment in a protected environment, such as a family business, to self-employment, to odd jobs, or to a sheltered workshop, the Board finds that the Veteran engaged in work that was more than marginal employment during the appeal period. As such, the Board finds that prior to January 1, 2008, the Veteran was not rendered unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities, and entitlement to TDIU prior to January 1, 2008, must be denied. The Board acknowledges the representative's argument that as of February 1, 2006, the Veteran met the schedular criteria requirement for entitlement to TDIU. However, simply meeting the schedular criteria does not automatically equate to a grant of TDIU. The pertinent question is whether the service-connected disabilities prevented the Veteran from obtaining or maintaining gainful employment. Here, as noted above, the Veteran specifically reported in the evidence of record that he began his part-time employment at the transport company in January 2006. For the reasons discussed above, this employment is more than marginal based on his earnings. As such, entitlement to TDIU cannot be granted dating back to February 1, 2006. ORDER Entitlement to TDIU prior to January 1, 2008, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs