Citation Nr: 20007643 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 10-04 301 DATE: January 29, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to January 4, 2012, is denied. FINDING OF FACT The Veteran was gainfully employed during the period prior to January 4, 2012. CONCLUSION OF LAW The criteria for a TDIU rating for the period prior to January 4, 2012, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1985 to January 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in April 2016. A transcript of the hearing is associated with the Veteran’s claims folder. This case was previously before the Board in July 2016 and August 2017. In July 2016 a claim for a TDIU was remanded for additional development. In August 2017 the Board granted entitlement to a TDIU effective August 21, 2012, and remanded a claim for entitlement to a TDIU for the period prior to August 21, 2012. In a March 2018 rating decision, the RO granted entitlement to a TDIU effective January 4, 2012, which is the day following the last day the Veteran worked. The RO indicated that this grant represented a full and final determination of the issue on appeal. However, the Board concludes that granting TDIU effective the day after the Veteran’s last day of employment does not represent a full grant of a TDIU, as a veteran who is employed may still be entitled to a TDIU if evidence of record demonstrates that their employment was not substantially gainful. Therefore, the Board must determine whether the Veteran’s employment for the period prior to January 4, 2012, was substantially gainful. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to January 4, 2012. A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107. Substantially gainful employment does not include marginal employment, which is generally deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on a fact found basis, including but is not limited to employment in a protected environment such as family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). It should additionally be noted that employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Based on a review of the record, the Board finds that the Veteran was gainfully employed during the period prior to January 4, 2012. In the Veteran’s application for a TDIU he indicated that he was employed at Aerotek as an instructor from 2006 to 2012. (5/2/2016, Veterans Application for Increased Compensation Based on Unemployability, p. 1). For the period prior to January 4, 2012, service connection was in effect for left knee osteoarthritis (10 percent from February 1, 2006, 100 percent from January 19, 2010, and 10 percent from April 1, 2010), low back strain (10 percent from February 1, 2006, and 20 percent from October 1, 2010), left shoulder impingement (10 percent from February 1, 2006, and 20 percent from November 26, 2008), left lower extremity radiculopathy (10 percent from November 26, 2008), right lower extremity radiculopathy (10 percent from November 26, 2008), pseudofolliculitis barbae (10 percent from November 26, 2008), right knee osteoarthritis (10 percent from February 1, 2006), residuals of a right middle finger surgery (10 percent from February 1, 2006, and zero percent from April 1, 2008), bilateral plantar fasciitis (zero percent from February 1, 2006), left knee scar (zero percent from February 1, 2006), and bilateral dermatophytosis of nails (zero percent from February 1, 2006). For the period of November 26, 2008, to January 19, 2010, his combined rating was 60 percent. For the period of January 19, 2010, to April 1, 2010, his combined rating was 100 percent. Finally, for the period of April 1, 2010, to August 21, 2012, his combined rating was 60 percent. In a March 2018 rating decision, the RO concluded that the Veteran’s disabilities of the back and lower extremities combine to 60 percent and affect a single bodily system. As such, the RO concluded that the Veteran meets the threshold criteria set forth under 38 C.F.R. § 4.16(a)(2) for the period prior to August 21, 2012. (3/2/2018, Rating Decision, p. 3-4). As the Veteran meets the schedular percentage threshold to be eligible for a TDIU, but was employed prior to January 4, 2012, the Board must now determine whether his employment was substantially gainful. In this regard, in the Veteran’s application for a TDIU, he indicated he earned approximately $39,600 a year. (5/2/2016, Veterans Application for Increased Compensation Based on Unemployability, p. 1). The poverty threshold for a single person in 2011 was $11,484. See Poverty Thresholds, United States Census Bureau, last visited January 14, 2020, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. As such, the Board finds that the Veteran’s annual income exceeded the poverty threshold for one person in 2012. Additionally, while the Veteran has provided lay evidence that his back disability impacted his ability to perform his duties as an instructor, he has not indicated that his employment was protected or sheltered. Moreover, he has not indicated that Aerotek afforded him special accommodations due to his disability. Based on the competent and probative evidence of record, the Board concludes that the Veteran was gainfully employed during the period prior to January 4, 2012. Accordingly, the Board finds that a TDIU for the period prior to January 4, 2012, is not warranted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.