Citation Nr: 20005012 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 10-08 898 DATE: January 22, 2020 ORDER Entitlement to a total disability based upon individual unemployability (TDIU), prior to October 2, 2009, is denied. FINDING OF FACT Except for the period during which the Veteran was assigned a temporary total disability rating based on the treatment of a service-connected disability requiring convalescence (March 31, 2008 to May 1, 2009), the Veteran’s service-connected disabilities did not render him unable to follow substantially gainful employment prior to October 2, 2009. CONCLUSION OF LAW Prior to October 2, 2009, the criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to November 1977. The Agency of Original Jurisdiction (AOJ) granted a TDIU rating in May 2015, assigning an initial effective date of February 21, 2013. As the Board noted in its November 2017 decision and remand, the relevant appeal period in this case goes back to 2006. Accordingly, the Board remanded the issue for the AOJ to decide whether the Veteran was eligible for a TDIU rating prior to February 21, 2013 and to determine if special monthly compensation (SMC) was warranted under 38 U.S.C. § 1114(s). In a January 2018 decision, the AOJ partially granted the claim by moving forward the effective date of the Veteran’s TDIU rating to October 2, 2009 and granted the claim for SMC under 38 U.S.C. § 1114(s). Since the maximum benefits were granted, TDIU is moot for the period beginning October 2, 2009. The only remaining issue is whether the Veteran was entitled to a TDIU before October 2, 2009. Entitlement to a TDIU prior to October 2, 2009. VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran's earned annual income is below the poverty threshold and in other limited circumstances. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, (2019), the Court defined the terms “substantially gainful employment” as having two components: one economic and one noneconomic. Id. at 73. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Board has reviewed the evidence and finds that the Veteran is not eligible for a TDIU rating prior to October 2, 2009. For the relevant period, the Veteran was service-connected for a right knee disability evaluated at 10 percent disabling, effective July 25, 2003; left hip replacement evaluated at 30 percent disabling, effective March 11, 2008; right hip strain, evaluated at 100 percent disabling between March 31, 2008 and May 1, 2009, and 30 percent thereafter; left knee arthritis evaluated at 10 percent disabling, effective February 28, 2002; left knee status post arthroscopy evaluated at 10 percent disabling, effective July 1, 2002; and lumbar spine disability evaluated at 10 percent disabling, effective March 11, 2008. The Veteran had a combined evaluation of 70 percent, effective March 11, 2008; thus, the Veteran has met the schedular requirements of TDIU since then. In his application for TDIU (VA Form 21-8940), the Veteran reported that, between November 1980 and October 2009, he worked for the United States Postal Service (USPS). According to the application, his highest gross earnings per month was $3,100.00. He also reported that, during his employment with USPS, he missed approximately 600 days of work due to his disabilities. If the Veteran regularly earned $3,100 per month prior to October 2009, his annual income would exceed the poverty threshold for one person, which at the time was $10,956.00. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. In a letter dated February 2013, the Veteran reported that he worked for the USPS for 37 years before he was forced to retire. The strongest evidence of unemployability in the record consist of documents submitted by the Veteran indicating that, even before October 2009, he frequently missed work and, as a result, earned significantly less than $3,100 per month for extended periods. In a June 2008 written statement, he reported that he had to take a lot of time off from work and that he has been on light duty. According to a note from the Veteran’s employer, dated July 2008, the Veteran was given a light duty assignment with a reduced schedule between July 15, 2008 and August 1, 2008. Documents from the USPS indicate several periods of absence from work pursuant to the Family Medical Leave Act (FMLA) after surgical procedures related to his service-connected knees and right hip. According to an October 2008 email message from an FMLA coordinator, the Veteran exhausted his FMLA leave for that year and would not be eligible for FMLA protection until after January 3, 2009. The Veteran submitted pay stubs indicating that he received no pay in the first pay period of July 2008 and gross pay of only $487 for the second pay period of the same month. For one pay period in June 2008, he apparently received gross pay of only $98.17. In December 2008, however, the AOJ granted the Veteran a temporary total disability rating for the period between March 31, 2008 and May 1, 2009 based on the need for a period of convalescence following surgery related to his service-connected right hip disability. In explaining this ruling, the AOJ wrote, that, “your right hip, previously evaluated as 10 percent disabling, has been increased to 100 percent disabling due to your recent right hip replacement effective March 31, 2008. A 30 percent rating is assigned effective May 1, 2009.” As the Board explained in its November 2017 decision and remand, the issue of TDIU does not necessarily become moot when the Veteran has a combined 100 percent disability rating because of the further possibility of qualifying for special monthly compensation under 38 U.S.C. § 1114(s), which is available when a Veteran has one disability rated at 100 percent disabling and additional disabilities combined at 60 percent or more. See Bradley v. Peake, 22 Vet. App. 280, 293, 2008). But in Herlehy v. Principi, 15 Vet. App. 33, 35 (2001), the Court dismissed a TDIU claim as moot when the Veteran received a 100 percent schedular rating for heart disease. The Board finds that the issue of TDIU was moot between March 31, 2008 and May 1, 2009 because the temporary total rating assigned for this period was assigned for a single disability – service-connected right hip strain, later rated as status post total knee replacement. This rating more closely resembles the total schedular rating in Herlehy than the combined total rating in Bradley. The pay stubs, light duty assignments, and FMLA documents suggest that the Veteran’s period of reduced earnings coincided with his period of convalescence and recovery from his service-connected hip surgery. In his TDIU application, he indicated that, before he retired, he missed approximately 600 hours of work due to his service-connected disabilities. His application indicated that he usually worked a 40-hour workweek, suggesting that he missed approximately 75 days of work. Because there were approximately 274 business days during the period of the Veteran’s temporary total disability rating, it is reasonable to conclude that all of the periods of decreased income resulting from missed work days occurred during the period when he was receiving a 100 percent rating for his right hip. With the exception of the period for which the issue of TDIU is moot (March 31, 2008 and May 1, 2009), the Board finds that, prior to October 2, 2009, the Veteran’s earned income exceeded the poverty threshold for one person and the preponderance of the evidence is against a finding that the service-connected disabilities precluded him from securing and following substantial gainful employment during the relevant period. As such, the claim for TDIU prior to October 2, 2009 is denied. Michael Nye Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.