Citation Nr: 18143459 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 17-15 714 DATE: October 19, 2018 ORDER The portion of the July 2018 Board decision which denied the claim for entitlement to TDIU is vacated. Entitlement to TDIU is granted. FINDINGS OF FACT 1. A July 2018 Board decision denied the Veteran’s claim for TDIU. 2. The Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability prior to promulgation of the July 2018 Board decision. 3. Due process requires that the Board vacate the portion of the July 2018 Board decision which denied entitlement to a TDIU. 4. The evidence is in relative equipoise that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for vacating the portion of the July 2018 Board decision which denied the claim for entitlement to a TDIU are met. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103(a), 5107(b) (2012); 38 C.F.R. §§ 3.341, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1958 to January 1962. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claim file. This matter was previously before the Board in October 2017 and February 2018, at which time it was remanded for further evidentiary development. A July 2018 Board decision denied entitlement to a TDIU. 1. Vacatur The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. A July 2018 Board decision denied the Veteran’s claim for TDIU, denied service connection for a skin disorder, to include as secondary to Camp Lejeune Contaminated Water exposure, and denied an initial rating in excess of 50 percent from October 25, 2013, and in excess of 70 percent from February 28, 2017, for psychiatric disability. The claim for TDIU was denied, in part, because there was no VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, on file providing the Veteran’s employment history. However, the record now shows the Veteran submitted a VA Form 21-8940 prior to the Board decision, it just had not been uploaded to his claim file. As he timely submitted the form, the Board’s failure to consider it as evidence in support of the claim constitutes a denial of the Veteran’s due process rights. Accordingly, the Board finds that vacatur of its July 2018 decision with regard to entitlement to a TDIU is warranted. There is no indication that the Veteran’s due process rights were denied with regard to the other issues determined in the decision; as such, those determinations are not disturbed. 2. TDIU A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19 (2016); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The Veteran’s service-connected disabilities met the threshold for a schedular TDIU on February 28, 2017. He is service connected for a psychiatric disability evaluated as 70 percent disabling and a left knee disability, which has a combined evaluation of 20 percent. He was awarded Social Security Administration (SSA) disability benefits due to his nonservice-connected prostate cancer and has stated that he is not currently employed. At the June 2017 hearing, he last reported working in 2000 painting signs. He described a work history including as a stock clerk, washing cars, doing landscaping, working in a fish market, and driving a taxi cab. Several records indicated that the Veteran is an artist and has worked as such in the past. SSA records have been destroyed with that agency advising this would have been accomplished 7 years after an allowance. As they indicated the Veteran was awarded those benefits effective from 1996, that would have been many years ago. (The Veteran was born in 1940, such that his eligibility for SSA benefits based on age alone occurred many years ago.) A December 2015 VA examination of the Veteran’s left knee disability found that the functional effect of his condition was that it would impact prolonged standing, as he is an artist. A March 2016 VA examination determined that his condition overall mildly to moderately impaired sedentary work and moderately to severely impaired physical work. May 2015 and November 2016 VA examinations found the Veteran’s adjustment disorder caused occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The November 2016 examiner determined that the Veteran’s irritability, suspiciousness, apathy, anhedonia, and detachment impaired his ability to work cooperatively and effectively with supervisors, co-workers, and the public to a moderate extent. The examiner also found that his difficulty concentrating impeded the encoding of information into memory and slowed down problem-solving, impairing his ability to retain, understand and follow instructions, to communicate effectively in writing, and to solve technical or mechanical problems to a mild extent. Finally, she determined that his apathy and anhedonia decreased his motivation and fatigued him, impairing his ability to maintain task persistence and pace, to arrive to work on time, and to work a regular schedule to a moderate extent. An April 2018 VA examination found his symptoms had worsened and his disability manifested in occupational impairment with deficiencies in most areas. VA and private medical records confirm that the Veteran has several disabling conditions that are not service connected, notably severe chronic obstructive pulmonary disease, carcinoma of the lungs, prostate cancer, and lower back degenerative joint disease. In the Veteran’s VA Form 21-8940, he reported no employment history, an education history of high school equivalency, that he qualified for SSA disability benefits in 1996 based on his nonservice-connected prostate cancer, that he had his left lung removed in 2003, that he was currently being treated for right lung cancer, and that he has had constant depression. In August 2018, the Veteran submitted a statement from his treating psychologist, which noted “It is my opinion that from a psychological standpoint, Mr. [redacted] is not capable of maintaining meaningful employment due to significant problems with work performance, reliability, and interpersonal relations he would have related to his Chronic Major Depressive Disorder.” The Board finds that the evidence is at least in relative equipoise that he is unable to maintain substantially gainful employment due to his service-connected psychiatric disability. Although he has considerable nonservice-connected disabilities that affect his ability to work, the findings of the VA examiners and the Veteran’s treating psychologist suggest that his ability to maintain employment is significantly impaired by his service-connected psychiatric disability. Accordingly, entitlement to a TDIU is established. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel