Citation Nr: 21002796 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 09-42 495 DATE: January 15, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted, effective March 1, 2020. FINDINGS OF FACT 1. Prior to March 1, 2020, by his own report, the Veteran was gainfully employed. 2. Since March 1, 2020, the Veteran has not been gainfully employed as a result of his service-connected disabilities, and the evidence supports a finding that he was unable to obtain and maintain substantially gainful employment starting on that date. CONCLUSION OF LAW Effective March 1, 2020, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran honorably served in the United States Army from September 1967 to September 1969. This matter appears before the Board of Veterans’ Appeals (Board) on appeal of February 2009 rating decision of the Regional Office (RO) in Roanoke, Virginia. The Veteran’s claim has been remanded on a few occasions. First, the Veteran’s claim of entitlement to TDIU was remanded in February 2014 as an intertwined issue. Again, in December 2016, the Veteran’s claim was remanded as an intertwined issue. The Veteran’s claim was remanded a third time in December 2017 to allow him to submit an updated VA Form 21-8940. Most recently, the Veteran’s claim was remanded in May 2018. The Board remanded the Veteran’s claim of entitlement to the Agency of Original Jurisdiction (AOJ) to obtain a VA examination to assess the combined impact of the Veteran’s service-connected disabilities. In December 2019, VA requested the examination. The examinations were obtained and associated with the Veteran’s claim in January 2020. The Board finds substantial compliance with the Board’s May 2018 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to a TDIU The Board finds that the preponderance of the evidence is against granting the Veteran’s TDIU claim prior to March 1, 2020. However, since March 1, 2020, the Board finds that the evidence is at least in equipoise to support granting the Veteran’s claim. The Veteran essentially contends that his service-connected disabilities, alone or in combination, preclude him securing or maintaining substantially gainful employment. Specifically, the Veteran reported he is in the process of closing his business as he finishes his current contracts. The record evidence shows that the Veteran was gainfully employed prior to March 1, 2020. A TDIU may be assigned where the schedular rating is less than 100 percent if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The central question is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Employment alone is not a bar to a TDIU if that employment is marginal. Generally, marginal employment shall be 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. 38 C.F.R. § 4.16(b). Alternately, marginal employment may be held to exist on a "facts found basis" even when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(b). The Board notes initially that service connection is in effect for posttraumatic stress disorder (PTSD), evaluated 70 percent disabling effective July 20, 2012; tinea versicolor, upper trunk, arms, and neck, evaluated 60 percent disabling effective April 23, 2013; degenerative joint disease (DJD), lumbar spine, evaluated 20 percent disabling effective February 12, 2008; prostate cancer, evaluated 20 percent disabling effective August 1, 2020; tinnitus associated with bilateral hearing loss, evaluated 10 percent disabling effective January 22, 2014; sciatic nerve associated with DJD, lumbar spine, evaluated 10 percent disabling effective January 23, 2017; bilateral hearing loss, evaluated zero percent disabling effective January 22, 2014; erectile dysfunction associated with prostate cancer, evaluated zero percent disabling effective October 25, 2016. The Veteran’s combined disability evaluation for compensation is 90 percent effective August 1, 2020. Thus, he meets the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a). Also of note, the Veteran’s service-connected prostate cancer was rated 100 percent disabling from December 17, 2015 to July 31, 2020. During this period, as the Board addressed in its previous remands, the issue of TDIU was not moot. Accordingly, the Board will be addressing the entire period on appeal from the initial claim in February 2008. The Veteran has undergone numerous VA examinations throughout the appeal period. The Veteran underwent VA examination in March 2008 for his skin and back disabilities. The Veteran reported that his back greatly interfered with his ability to complete activities of daily living; however, the examiner noted this claim was vague and the Veteran did not provide specifics such as dates he was incapacitated. The examiner did not opine whether the Veteran’s service-connected back or skin disabilities cause functional and occupational impairment. In an April 2013 VA psychiatric disorder examination, the Veteran reported working for his own construction business. The Veteran reported working part-time. The examiner opined that, from solely a mental-health perspective, the Veteran was capable to perform occupational tasks. The examiner did indicate that the Veteran suffered significant medical problems but that a determination on how they affected his occupational functioning was beyond his purview as a psychiatrist. In a February 2017 VA opinion, the physician indicated the Veteran was unable to secure and maintain gainful employment based on his service-connected disabilities. The physician noted that this opinion was specifically in regard to the Veteran’s spine disability because his skin disability had no impact on his occupational function. In January 2020, the Veteran underwent VA examination to determine the severity of his service-connected PTSD. The Veteran reported that he was not working, but also that he was self-employed in the construction business. He reported that he was getting ready to close his business as a result of his back and prostate. The January 2020 VA examiner indicated the Veteran’s service-connected disabilities have a negative effect on his ability to function in an occupational environment. The examiner further noted that they were unaware of any position the Veteran can perform and the combined effects of his back pain and PTSD have reduced his stress tolerance and ability to perform sustained tasks. The Veteran underwent a VA examination to determine the severity of his service-connected DJD in his lumbar spine in January 2020 as well. The Veteran reported worsening lower back pain and numbness, tingling, and pain in his left leg. The examiner indicated the Veteran’s service-connected back disability would preclude the Veteran from doing moderate to strenuous work; however, the examiner noted sedentary work would not be precluded. A January 2020 VA skin examination was completed. The Veteran’s service-connect tinea versicolor was noted to be stable, and the examiner indicated it was a non-limiting ailment with no limiting factors on occupational pursuits. A January 2020 VA examination addressing the Veteran’s reproductive system indicated that erectile dysfunction is not a limiting ailment in regard to occupational pursuits. Another January 2020 VA examination, for prostate cancer, indicated that prostate cancer has minimal effect on the ability to function in an occupational environment. The examiner noted that during treatment the Veteran may experience fatigue and residuals, but outside of treatment there is no significant occupational restriction needed. Further, the Veteran underwent VA examination for his bilateral hearing loss and tinnitus. The January 2020 examiner noted that the Veteran is likely to have difficulty in conversation especially if the speaker is far away from him, not directly facing him, talks too fast or with an accent, or if there is background noise. The examiner further explained that the Veteran may misunderstand the speaker or mistake the words that are spoken for other words. The examiner indicated the Veteran reported not being affected by his service-connected hearing loss and tinnitus, but that it was the opinion of the examiner that these disabilities would affect the Veteran’s occupational function. During the appeal period, the Veteran has submitted three completed VA Form 21-8940s. The first was received in October 2009. The Veteran reported being unemployed and last working full time in May 2003. The second was received in July 2012. The Veteran reported he was self-employed in the construction business. He reported working 40 hours a week and making approximately $25,000 annually. However, the Veteran last reported working full time in June 2011. The third completed form was received in September 2020. The Veteran reported he was self-employed with the same construction company and worked 40 hours per week since January 2004. He reported an annual income of $55,000. Further, the Veteran reported completing two years of high school with no other education or training. The Board recognizes that the VA examiners concluded that the Veteran’s service-connected disabilities restrict his ability to work at various levels since the February 2017 examination. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); see also 38 C.F.R. § 4.16. Further, the Board has considered whether the Veteran’s self-employment is consistent with sheltered employment. The Board finds that since March 2020, the evidence of record indicates the Veteran’s employment is marginal, based on his self-report. The Veteran reported that he is closing his business due to his service-connected disabilities. Specifically, the Veteran indicated he was closing out his current contracts, at a slower pace, and not accepting any new clients. The Board finds that the facts and circumstances of the Veteran’s self-employment changed when he decided to close his business due to worsening symptoms. Specifically, the Veteran is taking longer to complete the tasks required of him and has decided not to take new clients. The same employment with a different company would typically not allow the Veteran the freedom to do so. Accordingly, the Board finds that as of March 1, 2020, the date which the Veteran reported was his last day working full-time on his most-recent VA 21-8940, he is entitled to a TDIU. The Board finds that the evidence prior to March 1, 2020 is largely inconsistent. The Veteran reported being unemployed or self-employed to various doctors and VA examiners at various points. Additionally, the Veteran’s most recent VA 21-8940, received in September 2020, appears to be the most reliable source of employment information because it was the most complete form the Veteran submitted. On that form the Veteran reported being self-employed since January 2004. He reported that he worked 40 hours but did not need any time off due to service-connected disabilities. However, he submitted an accompanying statement which explained that he was closing his business and finishing his contracts. Based on the foregoing, the Board finds that the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to March 1, 2020. However, the Board finds that the evidence is at least in equipoise to support granting the Veteran’s entitlement to TDIU since March 1, 2020. Thus, resolving reasonable doubt in the Veteran’s favor, entitlement to TDIU effective March 1, 2020 is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.