Citation Nr: 21000600 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 12-05 963 DATE: January 5, 2021 REMANDED Entitlement to a total disability rating based upon unemployability (TDIU) for the period from August 1, 2011 to August 9, 2011 is remanded for referral to the VA Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). REASONS FOR REMAND The Veteran served on active duty in Army from March 1980 to March 1984, from September 1998 to May 1999, from April 2002 to June 2002, and from December 2003 to April 2005. The Veteran’s claim was most recently before the Board of Veterans’ Appeals (Board) in May 2020 wherein it was remanded for additional development by the agency of original jurisdiction (AOJ). While this development was partially completed, the Veteran is not fully satisfied with the resolution of his claim. See December 2020 Brief. Therefore, the matter remains on appeal as it has not been granted in full. Entitlement to a TDIU for the period from August 1, 2011 to August 9, 2011 is remanded. The Board remanded the Veteran’s claim in May 2020 because the Veteran asserted that he was eligible for a TDIU from August 1, 2011 due to his service-connected disabilities. At the time of the prior remand, the Veteran did not meet the schedular criteria for a TDIU. Thus, the Board found that a referral to the VA Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b) was warranted to consider whether the Veteran was entitled to a TDIU on an extraschedular basis. Pursuant to a July 2020 rating decision, the Veteran was granted an increased 70 percent rating for PTSD, effective August 9, 2011 (raised by his application for a TDIU) and granted TDIU effective the same date. The AOJ did not find that either PTSD or TDIU was warranted effective August 1, 2011 because the evidence showed that the Veteran stopped working August 8, 2011. Thus, because TDIU can only be awarded when a person is not able to engage in substantial gainful employment and the Veteran was working until August 8, 2011, the AOJ determined that a referral to the VA Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b) was not warranted. However, the Board finds that while the Veteran officially stopped working August 10, 2011, the evidence establishes that the Veteran’s service-connected disabilities affected his ability to maintain employment prior to that time. In a letter dated August 2010, the Veteran’s employer informed him that his excessive absences were affecting his ability to maintain employment. He had taken 64 hours of sick leave and 206 hours of leave without pay equating to 34 days or approximately one day per week (assuming 8 hour work day days). See document labeled Third Party correspondence, received February 24, 2011. Further, the Veteran’s employer verified that while the Veteran’s last day of employment was August 8, 2011, he had taken 10 weeks of leave due to disability from March 2011 to May 2011. See VA 21-4192 Request for Employment Information in Connection with Claim for Disability, received April 27, 2012. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Factors to be considered in determining whether unemployability exists are the Veteran’s education, employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board finds that while the Veteran resigned August 8, 2011, his work between August 1, 2011 and August 8, 2011 was marginal and thus not substantial gainful employment. Given this, and that the Veteran’s representative has continued to argue for an August 1, 2011 start date for TDIU, a referral to the VA Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b) is still required to consider whether the Veteran is entitled to a TDIU on an extraschedular basis for the period between August 1, 2011 and August 8, 2011. (CONTINUED ON NEXT PAGE) The matter is REMANDED for the following action: The AOJ must refer the issue of entitlement to a TDIU from August 1, 2011 and August 8, 2011 to the VA undersecretary for benefits or the VA Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b). The AOJ should note in its referral that the Board has found that the Veteran was not engaging in substantial gainful employment during this period. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.