Citation Nr: 1802700 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 07-38 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) for the period prior to August 29, 2016. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran had active air service from March 1967 to February 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Offices. The Regional Office (RO) in Houston, Texas, had initial jurisdiction of the claim and jurisdiction was subsequently transferred to the VA RO in Waco, Texas. The August 2006 rating decision, in relevant part, denied entitlement to a higher disability rating for the service-connected spondylosis of the lumbar spine and TDIU. The Veteran did not perfect an appeal of the TDIU claim. In May 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO for the issue of entitlement to a higher disability rating for the lumbar spine disability. A transcript of that hearing is included in the claims file. The Veteran filed a formal claim for TDIU in June 2012 and asserted that his back disability affected his full time employment in June 2010. The June 2013 rating decision denied entitlement to TDIU. The TDIU issue became part of the increased rating for a lumbar spine appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (when a TDIU issue is raised by the evidence of record, the Board must adjudicate the issue as part of the claim for an increased rating). A September 2016 rating decision granted TDIU from August 29, 2016. In July 2017, the Board remanded the issue of TDIU prior to August 29, 2016 to the agency of original jurisdiction (AOJ) for additional development. The Board finds that there has been substantial compliance with the Board's Remand. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). In November 2017, the Veteran submitted a waiver of AOJ consideration of new evidence pursuant to 38 C.F.R. § 20.1304 (2017). FINDINGS OF FACT 1. The Veteran's service-connected disabilities consist of spondylosis with degenerative disc disease of the lumbar spine (rated as 10 percent disabling from March 31, 2005, 20 percent disabling from February 25, 2009, and 40 percent disabling from August 29, 2016); radiculopathy of the left lower extremity (rated as 10 percent disabling from February 25, 2009 and 20 percent disabling from October 18, 2013); radiculopathy of the right lower extremity (rated as 10 percent disabling from October 18, 2013); degenerative disc disease of the cervical spine (rated as 10 percent disabling from February 25, 2009); fracture of the right little finger (rated as zero percent disabling); tinea versicolor of the chest and thighs (rated as zero percent disabling); and radiculopathy of the left upper extremity (rated as zero percent disabling); with a combined total schedular rating of 10 percent from March 31, 2005; 40 percent from February 25, 2009; 50 percent from October 18, 2013; and 60 percent from August 29, 2016. 2. The Veteran has a college education and work experience as a nuclear medicine technologist/technician since 1998. 3. Prior to August 29, 2016, the service-connected disabilities are not shown to have precluded the Veteran from either securing and/or following all forms of substantially gainful employment consistent with his educational and work background; he was able to perform substantially gainful employment consistent with his educational and work background; he received earned income in excess of the poverty threshold for one person; and he was not employed in a sheltered workshop or family business; nor did his employment resemble employment in a sheltered workshop or family business. CONCLUSION OF LAW Prior to August 29, 2016, the criteria for entitlement to a total rating based on individual unemployability by reason of service-connected disabilities to include on an extraschedular basis are not met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in June 2005, December 2012, and May 2014. Therefore, additional notice is not required. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. 2. Entitlement to TDIU Prior to August 29, 2016 As noted in the Introduction, a September 2016 rating decision granted entitlement to TDIU from August 29, 2016. The Veteran asserts that he is entitled to TDIU prior to August 29, 2016. In a June 2012 TDIU application, the Veteran asserted that he stopped working in January 2010, that he worked as a technician for a cardiology association, and that he earned $75,000 annually. All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 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. See 38 C.F.R. § 4.16(a). "Marginal employment," for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). 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 the veteran actually works and without regard to the veteran's earned annual income..." Other factors to be considered in determining whether a veteran is unemployable are his level of education, his employment history, and his vocational attainment. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). However, advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether the veteran currently is unemployable. 38 C.F.R. § 4.16 (a). Additionally, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. The Veteran's service-connected disabilities consist of spondylosis with degenerative disc disease of the lumbar spine (rated as 10 percent disabling from March 31, 2005, 20 percent disabling from February 25, 2009, and 40 percent disabling from August 29, 2016); radiculopathy of the left lower extremity (rated as 10 percent disabling from February 25, 2009 and 20 percent disabling from October 18, 2013); radiculopathy of the right lower extremity (rated as 10 percent disabling from October 18, 2013); degenerative disc disease of the cervical spine (rated as 10 percent disabling from February 25, 2009); fracture of the right little finger (rated as zero percent disabling); tinea versicolor of the chest and thighs (rated as zero percent disabling); and radiculopathy of the left upper extremity (rated as zero percent disabling). The Veteran has a combined total disability rating of 10 percent from March 31, 2005; 40 percent from February 25, 2009; 50 percent from October 18, 2013; and 60 percent from August 29, 2016. The Veteran does not meet the minimum rating requirements of § 4.16(a) for a TDIU rating prior to August 29, 2016. Where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16(b). Factors to be considered in determining whether a veteran is unemployable are his or her level of education, employment history, and vocational attainment. See Hyder, supra. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). After a review of the evidence of record, the Board finds that a remand for referral of the Veteran's claim for consideration of a TDIU prior to August 29, 2016 on an extraschedular basis is not warranted. The weight of the competent and credible evidence establishes that the service-connected disabilities do not cause unemployability prior to August 29, 2016. The competent and credible evidence shows that the Veteran reported employment as a nuclear medicine technician; he reported this occupation in the 2017 TDIU formal application. The evidence shows that the service-connected disabilities, at times, interfere with work and the Veteran missed work several days a year. However, the weight of the competent and credible evidence shows that the service-connected disabilities did not prevent the Veteran from securing and maintaining substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage") for the time period in question. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board finds that the weight of the evidence of record shows that the service-connected disabilities did not prevent the Veteran from securing and following all forms of substantially gainful employment consistent with his work and educational background prior to August 29, 2016. The weight of the evidence shows that the Veteran was engaged in substantially gainful employment prior to August 29, 2016. Regarding his work and educational background, the evidence shows that he has a college education and a Bachelor's of Science degree in Radiation Sciences. He has worked as a nuclear medicine technician since 1998. See the October 2017 TDIU application form. He provided competent and credible evidence as to his earnings for the time period of this appeal and the salaries as reported by him meet the requirement of substantially gainful employment and exceed the poverty threshold. In the October 2017 TDIU application, the Veteran indicated that from 1998 to 2001, he earned $9,750.00 a month. From 2010 to 2012, he earned $5,900.00 a month. From 2012 to 2016, he earned $6,800.00 a month. He reported that the most he ever earned was $120,000.00 in 2000 and the occupation was nuclear cardiology technologist. He reported working 40 hours a week and the date he last worked full time was July 20, 2016. His employment as a nuclear medicine technician/technologist does not resemble employment in a family business or sheltered workshop. The Veteran reported working at a cardiology center and at a medical clinic. According to the U.S. Census Bureau Housing and Household Economics Statistic Division, the poverty thresholds (for one person) were $9,973 for 2005; $10,294 for 2006; $10,590 for 2007; $10,956 for 2009; $11,139 for 2010; $11,484 for 2011; $11,720 for 2012; $11,888 for 2013; $12,071 for 2014; $12,082 for 2015; and $12,228 for 2016. See https://www.census.gov/hhes/www/poverty/data/threshld. The weight of the evidence shows that prior, to August 29, 2016, the Veteran's annual income exceeds the poverty threshold. Thus, the Board finds that the Veteran was able to maintain substantially gainful employment for the time period prior to August 29, 2016. The Veteran has reported that he missed 90 days of work from 2012 to 2016 due to his service-connected disabilities. See the October 2017 TDIU application. However, the Board notes that the Veteran was still able to maintain his employment. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. The record shows that the Veteran was incarcerated in state prison from August 2002 to September 2007, when he was paroled. Under 38 C.F.R. § 3.341(b), a rating for a TDIU which would first become effective while a veteran is incarcerated in a Federal, State or local penal institution for conviction of a felony, shall not be assigned during such period of incarceration. See 38 U.S.C. § 5313 (c) (West 2012). This phrase has been interpreted to prohibit adjudication of a TDIU if that TDIU rating would begin during a period in which a Veteran is incarcerated for conviction of a felony. See VAOPGCPREC 13-97 (Apr. 7, 1997). Accordingly, entitlement to a TDIU must be denied as a matter of law if the TDIU rating would commence during such a period of incarceration. For the reasons discussed above, the Board finds that a TDIU is not warranted during this time period and prior to August 29, 2016. In conclusion, the Board finds that a remand for referral of the Veteran's claim for consideration of TDIU prior to August 29, 2016 on an extraschedular basis is not warranted. The weight of the competent and credible evidence establishes that the Veteran was not precluded from all forms of substantially gainful employment due to his service-connected disabilities as he was able to work in employment consistent with his work experience and education prior to August 29, 2016. The preponderance of the evidence is against the claim for TDIU prior to August 29, 2016, and the claim for TDIU prior to August 29, 2016 must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A total rating based on individual unemployability by reason of service-connected disabilities prior to August 29, 2016 is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs