Citation Nr: 18150370 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-06 853A DATE: November 15, 2018 ORDER Entitlement to a total rating based on individual unemployability (TDIU) prior to June 3, 2015, is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran was rendered unemployable due to his service-connected bipolar disorder prior to June 3, 2015. CONCLUSION OF LAW The criteria for an award of a TDIU prior to June 3, 2015 are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1983 to December 1988. In February 2017, as pertinent here, the Board remanded the claims for initial rating higher than 70 percent for bipolar disorder and entitlement to a TDIU for further development, to include providing the Veteran with a new VA examination. Thereafter, in October 2017, the Board denied initial rating higher than 70 percent for bipolar disorder and granted a TDIU, effective June 3, 2015, but not earlier. In November 2017, the Veteran appealed the Board’s October 2017 decision to the Court of Appeals for Veteran’s Claims (Court), and by a May 2018 Order, the Court granted an amended Joint Motion for Partial Remand (JMPR), finding that the Board’s reasoning in denying entitlement to a TDIU prior to June 3, 2015, was insufficient. Specifically, the JMPR agreed that the Board’s findings were contradictory by finding that the Veteran had full-time, non-marginal employment, while also noting that it was unclear whether he worked full-time between June 2009 and August 2013, and noting that he had odd jobs off-and-on between 2010 and 2012. The Court did not disturb the Board’s grant of entitlement to a TDIU from June 3, 2015, forward, and noted that the Veteran abandoned his appeal for initial rating higher than 70 percent for bipolar disorder. Entitlement to a TDIU – Rating Criteria A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow 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, providing 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. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In Moore, the Court noted that it is clear that the claimant need not be a total “basket case” before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). The Board resultantly need only determine whether his service-connected disabilities, in and of themselves, render him unemployable - again, meaning unable to obtain or maintain employment that could be considered substantially gainful versus just marginal in comparison. 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). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Discussion The Veteran is seeking entitlement to a TDIU from October 7, 2010, asserting that he is precluded from obtaining or maintaining substantially gainful employment, specifically as a result of his service-connected bipolar disorder. During the period on appeal, beginning October 7, 2010, the Veteran met the schedular requirements for TDIU, based on a grant of service connection for bipolar affective disorder with an assigned 70 percent disability rating. As aforementioned, the Board previously granted entitlement to a TDIU, effective June 3, 2015. As such, the only issue now before the Board is whether entitlement to a TDIU is warranted prior to June 3, 2015. On his March 2011 formal claim for a TDIU, the Veteran indicated he last worked full-time on June 1, 2009, but that his disability affected his full-time employment beginning in 1999. The Veteran additionally listed jobs as restaurant host, security officer, and sales representative in 2011, for which he applied but was not hired. In March 2016, the Veteran filed an additional formal TDIU claim, in which he noted he last worked full-time in June 2015, but he became too disabled to work in June 2009. He reported working full-time for Comcast in sales from November 2014 to June 2015, where he earned $3,000 per month. Prior to that he worked as a sales manager at Mattress Firm from August 2013 to September 2014, where he earned $2,000 per month. He stated that he was unemployed from May 2009 to August 2013, but previously worked as an investigator for the Florida Department of Children and Families from June 2008 to April 2009. He also noted that he had a total earned income of $45,000 in the previous 12-months. He included an addendum statement that he was unable to follow substantially gainful employment due to his bipolar disorder, and that he was unemployed from 2009 to 2013. He felt that in 2009 he “truly became too disabled to work.” A review of records from the Social Security Administration (SSA) indicates that he worked as a security guard from October to November 2010, had a short-term disability that ended on October 1, 2011, and the Veteran reported working the “night shift” at Walgreens in November 2011, prior to his psychiatric hospitalization. An April 2012 record showed that he worked at Walgreens and Honey Baked Ham Corporation at the same time, but no dates were reported. The evidence further showed that, after his discharge from the hospital, he was unemployed in an in-patient rehabilitation program, and after his release, worked for his cousin’s company doing a “variety” of work. In April 2016, the Veteran’s attorney submitted a brief in support of claim along with a March 2016 opinion written by a vocational specialist regarding the Veteran’s employability. The attorney noted that the Veteran’s 70 percent rating for his bipolar disorder met the schedular criteria for entitlement to TDIU from October 7, 2010. The vocational specialist indicated that a telephone interview was conducted, at which time the Veteran reported that he was not employed from 1996 to 1998 due to worsening depressive symptoms. Thereafter, in 1998, he worked for as an apartment guide, showing and renting apartments; however, he “became disillusioned by the employer, resulting in stress” and he terminated this job in 2000. He then attempted to start an internet-based company, but the business never successfully launched. He also worked with a chiropractor to market a treatment tool, but the tool did not pass FDA scrutiny, and by 2001, he was again unemployed. In 2002, he started self-employment as a residential granite fabricator, receiving referrals from two large retailers, and was able to continue this employment “through 2008.” He reported worsening bipolar symptoms during this employment, with mental health hospitalizations in 2005 and by 2008 he felt that his symptoms prevented him from sustaining the business. Later in 2008, the Veteran stated that in 2008 he was “feeling better and secured a job as a child services investigator for his State;” however, the line of worked increased his stress, and he left this employment “less than a year later.” Thereafter, it was noted that from 2009 to 2015, the Veteran “struggled to sustain work, noting multiple short-lived jobs to include car sales, outside sales of uniforms, retail sales at a drug store and security, which ended in 2011 with another hospitalization.” Following his 2011 hospitalization, he was employed as a manager of four mattress stores and maintained this employment through 2014, but again, he related that he became disillusioned with this company and quit his job. In 2015, he attempted to work in sales at a fitness facility, shortly followed by outside sales of communication equipment. The vocational specialist stated, “He explains that by this time, he was doing all that he could to survive and that his employer noted his disability difficulties and prior job performance. He left his last position after about 8 months,” and was not able to return to work thereafter. The vocational specialist noted that the Veteran had a “long history of attempting to sustain employment following his discharge from the Navy in 1988, continuing until, he reports, he could no longer secure and follow substantial gainful employment in 2015.” It was noted that from 1988 to 2015 the Veteran had periods of work and periods of unemployment which he attributed to worsening bipolar symptoms. He also had multiple hospital admissions: 1995, 2005, 2011, and 2012. The Veteran’s education history included a bachelor’s degree in psychology and sociology and a master’s degree in human resources management. For the period on appeal, the vocational specialist noted the Veteran was employed as an investigator from 2008 to 2009, was the manager of four mattress stores from 2013 to 2014, and worked in fitness sales and sales of communication equipment from 2014 to 2015. The Specific Vocational Preparation (SVP) for his last two jobs as an investigator and store manager were higher (7) than his prior employment levels (ranging from 3 to 5). The vocational specialist then opined that the Veteran was prevented from securing and following substantially gainful employment since 2010. The vocational specialist indicated that while the Veteran was “able to secure employment since 2010, he has been unable to maintain any of these positions because of symptoms from his service-connected bipolar disorder.” The vocational specialist further noted that the opinion was consistent with the December 2010 “Mental Residual Functional Capacity Assessment” (MRFCA) and a February 2011 MRFCA, which noted moderately limited abilities in the same categories and included moderately limited ability to set realistic goals or make plans independently of others. The vocational specialist further stated that it appeared the Veteran left all of the above-mentioned jobs of his own accord, which he related, was due to symptoms of his bipolar disorder. “Therefore, while he was able to secure employment from 2010, it is [the vocational specialist’s] opinion that the evidence shows he was unable to maintain the employment.” He noted that the Veteran’s disability symptoms were “cyclic” and he had periods where he was able to function “fairly well and during these periods, he says, he reinvents himself and is able to return to work.” He had a “variety of vocational skills to consider a variety of occupations” but his bipolar symptoms “begin to worsen until he can no longer sustain the reliability and production demands of substantial and gainful employment.” Lastly, the vocational specialist felt that the 2011 VA examiner’s opinion regarding the Veteran’s employability was wrong, and noted that the Veteran “did experience stress” as a result of his clerk position at a pharmacy “which led to a short duration on the job followed by a 2011 psychiatric hospitalization.” In support of this conclusion, the vocational specialist cited a book (The Stress Solution) which noted that stress level severity of a job is based on “self-perception.” In August 2016, the Veteran submitted an affidavit regarding his employment history. He stated he had not been “gainfully employed since approximately 2015.” He stated he worked for Comcast from November 2014 to June 2015, and had “short-term disability” through Comcast from July 2015 to December 2015. He stated that this was the last time he worked. His prior work history included working for the Department of Children and Families from June 2008 to April 2009, which he left because the stress was negatively impacting his bipolar symptoms. He stated that from 2009 to 2013 he worked various odds-and-ends jobs which were “short-lived and sporadic,” and he felt he did not “maintain substantially gainful income between these four years.” He stated he worked for a friend who owned a warehouse with “menial jobs” that “weren’t very high paying” and so his “earning were so low.” He noted that he had jobs in retail sales, security, and car sales during this period, but that none of the jobs lasted very long or paid very well. He stated he “bounced around from job to job until obtaining full-time employment in approximately August 2013, which also was short-lived.” In July 2017, Comcast Corporation submitted a statement regarding the Veteran’s employment, noting that he was employed from November 2014 to March 2016, with a period of disability from June 20, 2015 to November 11, 2015. The amount he earned in the 12-months prior to his last date of employment was $37,103,78. The Veteran worked 40-hour work-weeks. It was noted he last worked June 3, 2015, and was last paid in December 2015. In September 2017, the Veteran’s attorney submitted an additional statement authored by a vocational specialist regarding the Veteran’s vocational abilities. Regarding the March 2016 vocational assessment, the vocational specialist again noted that the Veteran was more likely than not unable to secure or sustain gainful and substantial employment “since 2010” due to his symptoms of severe depression; constant nervousness; anxiety attacks; inability to deal with stress; feelings of uselessness; poor sleep resulting in fatigue and irritability; poor appetite; mood changes with little motivation; and, an inability to sustain attention/focus/concentration. The vocational specialist cited the statements in the 2017 VA examination which related to maintaining employment, and the indication he would need a flexible work environment. The vocational expert further identified the Veteran’s cyclic, limiting, and worsening mental health symptoms as a result of his service-connected mental health disability, resulting in non-exertional restrictions and limitations, and opined it is more likely than not that he was unable to secure and follow a substantially gainful occupation “since he was forced to stop working gainfully in 2010.” Lastly, it was noted that since 1990, the Veteran had tried to secure the type of employment that was flexible, to include his development of a paced work environment through self-employment, and none were successful. In October 2018 correspondence in support of the Veteran’s claim, his attorney asserted that the Veteran did not participate in continuous employment prior to June 2015. The attorney further discussed the deficiencies noted in the JMPR regarding the Board’s October 2017, specifically the lack of support for the Board’s conclusion that prior to June 2015, the Veteran worked full-time in non-marginal employment between 2010 and 2012, where the evidence shows that he had marginal employment at best. A review of a recent Social Security Taxes Earnings submitted by the Veteran showed that the in the years in question, the Veteran’s earnings was $2,743 in 2010; $3,196 in 2011; $6,115 in 2012; $12,716 in 2013; and, $33,026 in 2014. In addition, dividing his total earning of $45,521 in 2015, prior to June 2015, suggested that his earning was approximately $18,976 prior to June 2015. This information differs drastically from the Board’s calculation based on the Veteran’s lay reports in its October 2017 decision. For example, the Board concluded that the Veteran earned $24,000 between August 2013 and September 2014, based on his lay reports that he worked as a sales manager at Mattress Firm and that time earning $2,000 per month. This is contradicted by the official SSA records submitted by the Veteran, as well as his lay assertions that the jobs were not continuous. The Board also erroneously listed the poverty threshold for 2014 as $11,670, while official records showed a higher amount. In this regard, the Board notes that the poverty threshold for a single person during the years in question was as follows: $11,334 in 2010, $11,702 in 2011, $11,945 in 2012, $12,119 in 2013; $12,316 in 2014; and, $12,331 (for a period of five months prior to June 2015 at approximately $5,132). Based on this information, it is indisputable that the Veteran’s earnings in 2010, 2011, and 2012, were below the poverty threshold for a single person. His earnings in 2013 were slightly higher (by only $597) than the poverty threshold, but significantly higher in 2014 and 2015 prior to June 2015. As such, the Board concludes that for the period on appeal from 2010 to 2014, it is evident that the positions held by the Veteran during these years qualifies as marginal employment at best. Furthermore, while the Board recognizes that the Veteran’s salary was substantially higher in 2014 and 2015, when considering the level of severity of the Veteran’s service-connected bipolar disorder, especially an indication that other than the higher salary, the overall disability picture supports the conclusion that any increase in salary only occurred due to temporary improvement in the Veteran’s condition, but was never sustainable. Significantly, as noted by the vocational specialist, the Veteran was able to secure employment throughout the pendency of the appeal, but was unable to sustain these jobs. Based on the evidence presented here, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran was unable to obtain or maintain substantially gainful employment from the beginning of the claim period, namely, October 7, 2010. Therefore, for the reasons and bases discussed, and giving the benefit-of-the-doubt to the Veteran, entitlement to a TDIU prior to June 3, 2015, must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel