Citation Nr: 21002916 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-23 116 DATE: January 19, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected back disability with associated radiculopathy, for the period from January 1, 2013, to June 6, 2016, is granted. Entitlement to a TDIU due to any service-connected disabilities for the periods prior to January 1, 2013, on a schedular basis, and referral for consideration of a TDIU on an extraschedular basis, is denied. FINDINGS OF FACT 1. Throughout the period from January 1, 2013, to June 6, 2016, the Veteran’s service-connected back disability and associated radiculopathy, impairments from a common etiology with a combined rating of 60 percent, have caused essentially the same level of impairment that they have caused from June 6, 2016, onward; that level of impairment has already been established to have rendered the Veteran unable to secure or follow a substantially gainful occupation due to these service-connected disabilities, and the Veteran was not actually gainfully employed from January 1, 2013, onward. 2. For the periods prior to January 1, 2013, the evidence does not support a finding that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation; the Veteran was actually employed and has not responded to VA requests for earned income data or otherwise provided information indicating that his employment during the period was marginal. CONCLUSIONS OF LAW 1. For the period from January 1, 2013, to June 6, 2016, the criteria for entitlement to a TDIU based upon the Veteran’s service-connected back disability and associated radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. For the period prior to January 1, 2013, the criteria for entitlement to a TDIU based upon any service-connected disabilities on a schedular basis, or referral for consideration of a TDIU on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1964 to September 1968. In May 2020, the Board issued a decision in this appeal that resolved portions of a lumbar spine / back disability rating issue, including with ratings awarded for associated lower extremity radiculopathies. The May 2020 Board decision, and then also a September 2020 Board decision, recognized two forms of TDIU claim as part of the appeal, and both forms of TDIU were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. Both versions of TDIU claim on appeal have now returned to the Board and are the subject of this latest decision at this time. The relevant lumbar spine / back disability rating issue was brought before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. An August 2014 RO rating decision denied entitlement to a TDIU, and that TDIU issue has also been appealed to the Board. The TDIU claim on appeal from the August 2014 RO rating decision was, by the rating decision’s own stated terms, an adjudication of the Veteran’s April 2014 claim of entitlement to a TDIU. However, the Veteran’s April 2014 VA Form 21-8940 application for a TDIU included his specific identification of his back disability alone as the service-connected disability that prevents him from securing or following any substantially gainful occupation. The AOJ had essentially developed and adjudicated the Veteran’s TDIU claim as a traditional TDIU (contemplating all service-connected disabilities). However, the Veteran claimed entitlement to TDIU due specifically to his back disability during the pendency of his claim of entitlement to an increased rating for the same back disability. The Veteran’s TDIU claim thus includes a form of TDIU claim known as a Rice TDIU, because it was raised during the administrative appeal of the Veteran’s claim for increased ratings for particular service-connected disabilities and it is, therefore, a component of that claim for benefits related solely to those disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the above-discussed procedural history, the Veteran’s Rice TDIU was a part of the Veteran’s appeal for higher compensation for his service-connected back disability, and the Rice TDIU associated with the back disability compensation issue remains in appellate status before the Board at this time. Prior to the May 2020 Board decision and remand, this case was previously before the Board in April 2018, when the Board denied a claim of entitlement to an earlier effective date for the grant of service connection for the Veteran’s back disability, and the Board remanded the remaining back disability rating and TDIU issues on appeal to the AOJ. During the processing of that Board remand, the AOJ issued a new rating decision in February 2020 that granted new separate 20 percent ratings for radiculopathy of the right lower extremity and the left lower extremity, effective from June 6, 2016. That decision additionally granted entitlement to a TDIU, effective from June 6, 2016. The radiculopathy issues were raised as part of the appeal for increased disability compensation for the back disability, and were part of the basis for the Board’s April 2018 remand of this appeal. In May 2020, the Board granted earlier effective dates for the pertinent radiculopathy ratings, and remanded the TDIU claim for AOJ readjudication of the matter in light of the newly revised effective dates for the relevant intertwined radiculopathy ratings. The Board observes that the AOJ determined that the back rating issue (and its encompassed TDIU issue) on appeal arose from a November 2011 rating decision (as cited in the April 2015 statement of the case), and that rating decision was deemed an adjudication of “a claim for increased evaluation that was received on June 23, 2010.” However, the Board notes that the cited June 2010 claim includes the Veteran’s written testimony that his “back disability has become worse since my last C&P exam.” This is significant because the testimony was presented by the Veteran within the one year appeal period following the May 2010 RO rating decision that granted service connection for the back disability, assigning the initial back disability rating determination; the testimony constitutes new and material evidence pertaining to that back disability rating determination (including by asserting that the Veteran’s back disability was worse at the time of the May 2010 adjudication than it had been when assessed in a VA examination in February 2010). This prevented the May 2010 RO rating decision from becoming final prior to the readjudication of the issue that led to the current appeal. 38 C.F.R. § 3.156(b). Accordingly, the Rice back disability TDIU issue on appeal arises from the May 2010 RO rating decision, and the rating period for consideration in that matter begins with the effective date of the grant of service connection: November 23, 2009. In January 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding is of record. The Board notes that the Veteran initiated a separate appeal on an issue of entitlement to an increased rating for bilateral hearing loss, and a statement of the case was issued on that matter in July 2016. However, that matter was not timely perfected for appellate review and is not before the Board at this time. 1. Entitlement to a TDIU due to service-connected back disability with associated radiculopathy, for the period from January 1, 2013, to June 6, 2016, is granted. 2. Entitlement to a TDIU due to service-connected disabilities for the period prior to January 1, 2013, is denied. The Veteran appeals for a TDIU for the claim periods prior to June 6, 2016. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is unable, by reason of his service-connected disabilities, to secure or follow a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of identifying one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology will be considered as one disability. However, even where the Veteran does not meet these schedular requirements, 38 C.F.R. § 4.16(b) codifies VA’s policy under which all veterans who are unable to secure a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, if a Veteran fails to meet the schedular requirements above, an extraschedular rating is for consideration where the Veteran is nonetheless unemployable due to service connected disability. Id.; see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board may not grant a TDIU on an extraschedular basis in the first instance. Rather, the matter must be referred to the Director of the Compensation and Pension Service (Director) for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. 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. The non-economic component includes consideration of: 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. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). In a February 2020 rating decision, the RO granted entitlement to service connection for right and left lower extremity radiculopathies, assigning each an initial rating of 20 percent. In the February 2020 rating decision, the RO additionally granted entitlement to a TDIU. Those awards were all made effective from June 6, 2016. The Veteran’s service-connected disabilities at the time of that award of TDIU were: (1) lumbar strain with degenerative changes rated 40 percent disabling, (2) right lower extremity radiculopathy rated 20 percent disabling, (3) left lower extremity radiculopathy rated 20 percent disabling, (3) tinnitus rated 10 percent disabling, and (4) bilateral hearing loss rated noncompensably disabling. Notably, however, the February 2020 rating decision makes clear that the award of TDIU was primarily based upon the lumbar spine disability and associated radiculopathies: “Since your service-connected back disability and radiculopathy can reasonably be expected to preclude employment in occupations you are experienced to perform, total compensation benefits are granted on the basis of unemployability.” The grant of TDIU was a grant of the Rice TDIU based specifically upon the back disability (with associated radiculopathy). The Board notes that the scope of the Rice TDIU in this case begins with consideration of the disabilities associated with the single etiology of the Veteran’s back disability and lower bilateral extremity radiculopathy; that disability-set, arising from a common etiology, now has a combined rating of 60 percent effective from June 3, 2011, meeting the criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a) for that period. See 38 C.F.R. § 4.25. The RO’s grant of the TDIU was based substantially upon the predicate of a simultaneous grant of the new pair of 20 percent disability ratings for the lower extremity radiculopathies, with the RO essentially finding that the resulting increased combined disability rating met the criteria for a TDIU as of the effective date of the award of the new radiculopathy ratings: “These [TDIU] benefits will be made effective June 6, 2016, which represents the date on which you met the disability percentage requirements for unemployability consideration/the date the evidence shows a worsening of your condition.” After the February 2020 grant of TDIU, a May 2020 Board decision (effectuated by a June 2020 RO rating decision) granted revisions of the rating assignments for the lower extremity radiculopathies. The May 2020 Board decision found that the 20 percent rating for the right lower extremity radiculopathy and the 20 percent rating for the left lower extremity radiculopathy were both warranted from the earlier effective date of June 3, 2011. (The Board furthermore awarded lower ratings for both lower extremity radiculopathies prior to that date.) In light of the Board’s May 2020 grant of entitlement to the pair of 20 percent radiculopathy ratings from June 3, 2011, to June 6, 2016, the threshold eligibility requirements for schedular TDIU are met for that period. Accordingly, the Board’s analysis of this case will consider entitlement to an award of TDIU for that period. The Board observes that the identical nature of the VA disability ratings in June 2011 and June 2016 suggest that the severities of impairments from the Veteran’s pertinent service-connected disabilities in June 2011 may have been similar to those impairments that warranted an award of TDIU as of June 6, 2016. Thus, the Board’s attention is directed to consideration of the Veteran’s employment history pertinent to these periods. The Veteran’s April 2014 filing of a VA Form 21-8940 shows that he participated in a degree of employment for part of the pertinent period for consideration: the Veteran reported that he was self-employed for many years before becoming unemployed at the end of December 2013. Although the Veteran indicated that he became “too disabled to work” in “12/2013,” the context of the Veteran’s report of maintaining a diminished degree of self-employment until that time strongly suggests that he was indicating that December 2013 was when he became too disabled to continue -any- manner of work, whereas analysis of entitlement to a TDIU is more concerned with when the Veteran became too disabled to perform substantially gainful work. To arrive at a determination regarding the Veteran’s entitlement to a TDIU for pertinent periods in this case, the Board must determine whether and when the Veteran’s self-employment was substantially gainful. Unfortunately, however, the information provided by the Veteran on the April 2014 VA Form 21-8940 does not contain all of the information necessary to make the necessary determination under the particular circumstances of this case. The Veteran adequately completed the VA Form 21-8940 as instructed, and responded to all pertinent questions asked of him. Significantly, the information he provided suggests that his income was in the near-vicinity of the poverty threshold for one person in 2011, 2012, and 2013, because the Veteran reported that his “Highest Gross Earnings Per Month” as “$1,000,” and his “Total Earned Income for the Past 12 Months” as “$11,645.00.” The Board interprets the Veteran’s report of $11,645.00 as his income in the final 12 months of his recently-concluded self-employment, rather than strictly interpreting the figure as his earnings in the 12 months immediately preceding the April 2014 filing. This appears to be the most reasonable understanding of the Veteran’s response, as there would otherwise exist a mathematical contradiction with his report of maximum monthly earnings and the final month of earnings. Mathematically, the Veteran’s report of earning no more than $1,000 per month, together with his report of ceasing work in December 2013, makes it impossible for him to have earned $11,645.00 in the 12-months preceding the April 2014 filing (signed by the Veteran at the end of March 2014). However, the Veteran’s report of $11,645.00 of earned income corresponds well with the other information if the Board reasonably understands that he was reporting his income for the last 12 months prior to his recent onset of unemployment. The earned income for 2013 reported in the Veteran’s VA Form 21-8940 suggests that his self-employment was not substantially gainful employment for at least some of the pertinent years for consideration. An annual income of $11,645.00 is beneath the generic poverty threshold for one person ($11,888) for the year 2013. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The generic poverty threshold for one person was lower in prior years. Although the Veteran provided all of the pertinent information requested by the VA Form 21-8940, the form did not ask him to provide his total annual income for the year 2012 or the year 2011 (and it did not ask for other information from which an effective inference can be drawn regarding whether or not the Veteran’s earned income was below the poverty threshold during those years). The Board observes that the pertinent Rice TDIU component of this appeal has resulted in a situation where VA must consider entitlement to a TDIU for a period of several years prior to the Veteran’s actual April 2014 filing of the VA Form 21-8940, whereas the VA Form 21-8940 is primarily designed to serve as an Application to establish current entitlement to the benefit without being optimized for the significant retroactive consideration this case now requires. Accordingly, the Board’s September 2020 remand directed that the AOJ request from the Veteran a statement presenting (a) his earned income for the year 2011, (b) his earned income for the year 2012, (c) his earned income for the year 2013 (to pursue clarity on this figure), and (d) any other information the AOJ may find necessary to determine whether the Veteran’s self-employment earnings were beneath the applicable poverty thresholds or otherwise constituted less than substantially gainful employment during the periods pertinent to this appeal. In September 2020, in accordance with the Board’s remand directives from earlier in that month, the AOJ sent a letter to the Veteran requesting the pertinent information from him. The Veteran has not responded or provided the requested information. The evidentiary record continues to lack evidence clearly showing whether the Veteran’s self-employment prior to 2013 was marginal. From January 2014, onward, the evidence indicates that the Veteran was unemployed and was impaired by the same service-connected disabilities at the same rating-levels as those that serve as the basis of the existing award of TDIU effective from June 6, 2016. The Board finds that the Veteran was entitled to a TDIU from January 2014 on the same basis as that for the existing award of TDIU from June 2016; this TDIU can be awarded on the basis of the Veteran’s back disability and associated impairments (in the same manner as is the case for the already-established period of TDIU from June 6, 2016). Furthermore, the Board finds that the Veteran’s April 2014 VA Form 21-8940 indicates that the Veteran’s total income for the year 2013 of $11,645.00 (interpreting the Veteran’s reported income on that form as accounting for his income during his last 12 months of self-employment, for reasons explained above) was beneath the generic poverty threshold for one person ($11,888) for the year 2013. Resolving reasonable doubt in the Veteran’s favor, the Board can conclude that the Veteran’s self-employment was marginal, and not gainful, from January 2013 through the conclusion of his self-employment. Accordingly, from January 2013, onward, the evidence reasonably indicates that the Veteran was not gainfully employed and was impaired by the same service-connected disabilities at the same rating-levels as those that serve as the basis of the existing award of TDIU effective from June 6, 2016. Based on detailed review of the foregoing, resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected back disability (with associated radiculopathy) has precluded him from all forms of substantially gainful employment consistent with his educational background and occupational experience from January 1, 2013 (earlier than the previously established June 6, 2016, effective date for the award of TDIU). The Board finds that the evidence reasonably supports entitlement to a TDIU from January 1, 2013; this TDIU can be awarded on the basis of the Veteran’s back disability and associated radiculopathy impairments (in the same manner as is the case for the already-established period of TDIU from June 6, 2016). To this extent, the appeal is granted. What remains for consideration in this case is the rating period prior to January 1, 2013. On the Veteran’s April 2014 VA Form 21-8940, the Veteran reported that he was self-employed throughout this earlier rating period. Notably, in Foust v. West, 13 Vet. App. 342 (2000), the Court held that where the claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, actual employability for the purposes of 38 C.F.R. § 3.343(c)(1). In September 2020, the AOJ asked the Veteran for earnings details for pertinent years of the rating period prior to January 2013. However, the Veteran has not responded or provided the requested information. Because the Veteran did not provide evidence documenting or reporting his annual income prior to January 1, 2013, VA is unable to determine his actual annual earned income during the earlier years. Thus, the record does not contain the evidence necessary to determine whether the Veteran’s earned annual income exceeded the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person, which is for consideration when determining whether employment is marginal. See 38 C.F.R. § 4.16(a). The Veteran has not otherwise submitted evidence indicating his annual income during that earliest appeal period. The claimant bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107(a); see Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Based on detailed review of the foregoing, the Board finds that the Veteran’s service-connected disabilities are -not- shown to have rendered him incapable of obtaining and maintaining gainful employment prior to January 1, 2013. As such, the preponderance of the evidence is against the claim of entitlement to a TDIU rating on any basis at any time prior to January 1, 2013. Although the Veteran met the schedular thresholds for some portion of the period prior to January 1, 2013, award of a TDIU is not warranted for any portion of the period prior to January 1, 2013. The preponderance of the evidence is against the claim of entitlement to a TDIU rating due any combination of service-connected disabilities at any time during the appeal period prior to January 1, 2013. According to his own testimony, the Veteran was actually employed for all periods on appeal prior to January 1, 2013. Therefore, award of a schedular TDIU is not warranted for any period prior to January 1, 2013. Referral to the Director of Compensation for consideration of a TDIU on an extraschedular basis is not warranted. The Veteran and his representative have not raised any other issues in connection with the issues on appeal, nor have any other issues been reasonably raised by the record in connection with these matters. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.