Citation Nr: 18144088 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 06-03 695A DATE: October 23, 2018 ORDER Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) from May 13, 2003, to January 29, 2011, and from December 1, 2011, to February 19, 2013, is granted. REMANDED The matter of entitlement to TDIU prior to May 13, 2003, and from January 30, 2011, to August 15, 2011, is remanded. FINDINGS OF FACT 1. For the period from May 13, 2003, to January 29, 2011, and from December 1, 2011, to February 19, 2013, there was a service connected disability rated as 60 percent and a combined service connected disability rating of at least 70 percent. 2. For the period from May 13, 2003, to January 29, 2011, and from December 1, 2011, to February 19, 2013, the Veteran was unable to secure or follow a substantially gainful occupation due to her service connected disabilities. CONCLUSIONS OF LAW The criteria for TDIU have been met from May 13, 2003, to January 29, 2011, and from December 1, 2011, to February 19, 2013. 38 U.S.C. §§ 5103A, 5107, 5110(a) (2012); 38 C.F.R. 3.102, 3.400, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially with respect to some matters that are not on appeal, the attention of the Agency of Original Jurisdiction (AOJ) is directed to argument submitted by the Veteran’s attorney in an August 29, 2017, letter—after the appeal was certified to the Board of Veterans’ Appeals (Board)—expressing disagreement with certain matters addressed in an October 2016 rating decision and a July 2017 “special review” of this decision by the AOJ. Additional argument with respect to these matters by the Veteran’s attorney is contained in a letter dated in June 4, 2018, received after the October 2017 Board remand. A May 24, 2018, letter from the Veteran’s attorney raised additional matters, a request for waiver of an overpayment of dependency benefits of $497.43 that also questioned the validity of this debt. As such, and to the extent that the AOJ has not already done so, the AOJ is directed to conduct the appropriate development of these matters raised by the Veteran’s attorney. It is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to 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, and consideration is given to the Veteran’s background including her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether Unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Substantially gainful employment is “that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests “a living wage.” Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further 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.” Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16 (a) (“marginal employment shall not be considered substantially gainful employment”). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to her service-connected disabilities but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). Discussion Service connection is in effect for multiple disabilities, to include a weak bladder associated with fibroids, status post myomectomy, rated as 60 disabling effective from January 5, 2012; painful scars status post breast reduction surgery and hysterectomy, rated as 40 percent disabling effective from August 16, 2011; lumbar sprain, rated as 40 percent disabling effective from February 20, 2013; supra-cervical hysterectomy, rated as 100 percent disabling effective from August 16, 2011; and lupus, rated as 10 percent disabling from September 5, 2002. The combined service connected disability ratings, for the period relevant to this appeal, are as follows: 60% from 09/05/2002 70% from 05/13/2003 60% from 01/30/2011 100% from 08/16/2011 80% from 12/01/2011 90% from 01/05/2012 100% from 02/20/2013 Given the ratings set forth above, the objective criteria for TDIU under 4.16(b) are met for the period from May 13, 2003, to January 29, 2011, and from December 1, 2011, to February 19, 2003. In her VA Form 21-8940 (Veteran’s Application for Increased Compensation based on Unemployability) received in October February 2018, the Veteran stated she had last worked full time in December 1999. She reported educational experience therein through 4 years of college and work experience as a cashier and in administrative support. In an addendum to this application, the Veteran indicated that she was constantly reprimanded due to the number of breaks she had to take due to her service-connected disabilities, and that she was terminated in December 2008 due to her lack of productivity. The Veteran’s attorney argued in a June 2018 statement that the Veteran should be awarded TDIU from “at least” 2002. Supporting this argument was an attached opinion from a vocational specialist indicating the Veteran was precluded from securing and following substantially gainful employment since at least September 2002. Additional evidence of record supporting entitlement to TDIU is an April 2017 statement submitted by a private physician indicating the it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment due to her service connected lupus since 2003. As such, and after resolving all reasonable doubt in this regard in favor of the Veteran, the Board finds that the criteria for TDIU are met from May 13, 2003, to January 29, 2011, and from December 1, 2011, to February 19, 2013, which are periods in which the objective criteria under 38 C.F.R. § 4.16(a) were met and a 100 percent combined service connected disability rating was not in effect. The matter of entitlement to TDIU on an extraschedular basis for the periods of time that the objective criteria under 38 C.F.R. § 4.16(a) were not met is addressed below. REASONS FOR REMAND The combined service connected disability ratings, as set forth above, do not meet the objective criteria under 38 C.F.R. § 4.16(a) for the periods prior to May 13, 2003, and from January 30, 2011, to August 15, 2011. As such, and given the   evidence of unemployability set forth above, the undersigned finds that this case must be referred to the Director of the VA Compensation and Pension Service (Director) for consideration of entitlement to TDIU on an extraschedular basis for the periods prior to May 13, 2003, and from January 30, 2011, to August 15, 2011. For the reasons stated above, this case is REMANDED for the following action: 1. Ask the Veteran to provide IRS tax returns from 2002 through 2003, and for 2011 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2002-2003, and for 2011 and submit them to VA. Tell the Veteran that if she does not have copies of his tax returns for the requested years, she may use the IRS form cited to above. 2. Submit the matter of entitlement to TDIU on an extraschedular basis for the periods prior to May 13, 2003, and from January 30, 2011, to August 15, 2011, to the Director for extraschedular consideration under 38 C.F.R. § 4.16(b). To the extent favorable to the Veteran, the determination of the Director should be implemented. 3. If the determination by the Director does not result in an award of all benefits sought in connection with the claim for TDIU, the Veteran and her attorney must be provided with a supplemental statement of the case.   After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review to the extent desired by the Veteran. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel