Citation Nr: 21002923 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-15 989 DATE: January 19, 2021 ORDER A total disability rating based on individual unemployability due to service connected disability (TDIU) for the rating period on appeal prior to January 10, 2017, is denied. The appeal seeking to establish entitlement to a TDIU for the period from January 10, 2017, is dismissed. FINDINGS OF FACT 1. Prior to January 10, 2017, the Veteran was engaged in substantial gainful employment. 2. The Veteran is now in receipt of a 100 percent disability rating for service-connected disabilities and to special monthly compensation (SMC) at the housebound rate for the period from January 10, 2017, onward, granting the full benefits sought for this period without need of establishing entitlement through the alternative route of a TDIU; there remains no case or controversy concerning whether the Veteran is entitled to a TDIU from January 10, 2017, onward. CONCLUSIONS OF LAW 1. Prior to January 10, 2017, the criteria for assignment of a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.155, 3.340, 3.341, 3.400, 4.16. 2. There is no longer any question of law or fact regarding entitlement to benefits on the basis of TDIU for the period from January 10, 2017, onward, in this case; the appeal concerning entitlement to TDIU for the period from January 10, 2017, onward, is moot. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to December 1998. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a TDIU, on the basis of a combination of service-connected disabilities, is before the Board following the Veteran’s appeal of a February 2017 RO rating decision denying the claim. This appeal was previously before the Board in September 2019, when the Board resolved other issues on appeal. The September 2019 decision remanded issues concerning sleep apnea and TDIU. In August 2020, those issues returned to the Board for further appellate review, and the Board again remanded them for additional development. During the processing of the Board’s August 2020 remand, the RO / Agency of Original Jurisdiction (AOJ) issued a rating decision in November 2020 that granted entitlement to service connection for sleep apnea, fully resolving that issue and removing it from appellate status. The November 2020 rating decision resulted in a 100 percent disability rating effective from January 10, 2017. A December 2020 rating decision established that the Veteran is furthermore entitled to SMC at the housebound rate effective from January 10, 2017. The remaining issue in this appeal is entitlement to a TDIU, and that issue on appeal has been returned to the Board in its entirety for further appellate review. The AOJ’s November 2020 supplemental statement of the case considers and discusses the issue throughout the entirety of the rating period on appeal. As the Board is again tasked with appellate review of the issue of entitlement to a TDIU for the complete rating period, it must consider entitlement for the portion of the period prior to January 10, 2017, and for the period thereafter. As explained below, the Board’s analysis results in a denial of the TDIU claim on the merits for the earlier period, and a dismissal of the issue as moot for the later period. As noted in the Board’s prior remand of this appeal in August 2020, the Veteran’s previously-appointed representative withdrew and indicated that the Veteran had been notified of this withdrawal in July 2020 correspondence. 1. A TDIU for the rating period on appeal prior to January 10, 2017, is denied. 2. The appeal seeking to establish entitlement to a TDIU for the period from January 10, 2017, is dismissed. The Veteran’s claim of entitlement to a TDIU was adjudicated by the AOJ’s February 2017 rating decision that identified the matter as arising from the Veteran’s claim filed in September 2016. The Board observes that an April 2016 letter from the AOJ to the Veteran refers to receiving an “intent to file on April 13, 2016.” Following the recent November and December 2020 AOJ rating decisions, the Veteran is now in receipt of a 100 percent schedular rating plus SMC at the housebound rate for the period from January 10, 2017. This reflects a grant of the benefits sought by the Veteran, for the period from January 10, 2017, that would have otherwise been sought alternatively through the Veteran’s pursuit of a TDIU on appeal for the same period. The portion of the appeal seeking a TDIU for the period from January 10, 2017, onward, has been rendered moot by the AOJ’s grant of the benefits sought on different grounds: the 100 percent rating and SMC at the housebound rate granted by the AOJ’s November 2020 and December 2020 rating decisions. Accordingly, this portion of the TDIU claim on appeal must be dismissed. The procedural history of this appeal is such that the claim of entitlement to a TDIU currently before the Board covers a period that begins earlier than the January 10, 2017, effective date of the Veteran’s now-established entitlement to a combined schedular 100 percent rating with SMC at the housebound rate. The Board now considers whether the Veteran is entitled to TDIU for the period prior to January 10, 2017. 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). The Board preliminarily notes that the Veteran’s combination of rating assignments for service-connected disabilities meet the criteria for consideration of a schedular TDIU under 38 C.F.R. § 4.16(a) from June 4, 2015. Thus, the Veteran meets the schedular threshold for a TDIU throughout the rating period prior to January 10, 2017. Significantly, in November 2016, the Veteran submitted a VA Form 21-8940 “Veteran’s Application for Increased Compensation Based on Unemployability.” On this submission, the Veteran stated that he was currently employed at that time, with full-time employment in “Inside Sales” with a telecommunications company, and he reported “$5,007” as his “currently monthly earned income.” The Veteran reported that he had previously earned a high of “$3,800” in a month as his previously highest gross monthly earnings in that employment. The Veteran reported that his “Total Earned Income for the Past 12 Months” was “$14,000.” In March 2019, the Veteran submitted another VA Form 21-8940 that confirms that the Veteran maintained his employment until April 2017. The Board notes that the Veteran’s March 2019 report contradicts the salary information presented in the Veteran’s more contemporaneous November 2016 report. In the March 2019 report, the Veteran indicates that he earned no more than $2,000 per month in the telecommunications company employment from September 2016 to April 2017, which is contradicted by his more contemporaneous report that he had already earned “$3,800” in a month on that job as of November 2016, and that he was earning a salary of “$5,007” per month in November 2016. The Board notes that the Veteran’s report of salary history in the March 2019 report furthermore revises downward other salary history data relative to his November 2016 report, without explanation. However, the Board finds that the discrepancies do not significantly affect the determinative findings in this analysis. 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). TDIU will not be warranted for a period in which the Veteran actually participated in substantially gainful employment. For TDIU entitlement, it must be noted that substantially gainful employment is any form of employment which provides an income above the poverty threshold for an individual. In 2016, the generic poverty threshold for one person was $12,228. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The Veteran’s November 2016 report, contemporaneous to the period for consideration, shows that he reported that his “Total Earned Income for the Past 12 Months” was “$14,000,” and that he was in November 2016 employed in a position paying “$5,007” per month. The Veteran’s March 2019 submission indicates that he stayed in that position until April 2017. Although the March 2019 submission suggests that the Veteran revised his report of salary downward to a maximum of “$2,000” per month in that employment, the Board finds that the evidence does not indicate that the Veteran’s rate of income in this employment was below the applicable poverty threshold for an individual during the pertinent period prior to January 10, 2017. Additionally, the Board finds that the Veteran’s own contemporaneous report of his income during the time of the pertinent employment in 2016 is the most probative evidence on this point. Based on detailed review of the foregoing, the Board finds that the Veteran’s service-connected disabilities did not preclude him from all forms of substantially gainful employment consistent with his educational background and occupational experience during the period prior to January 10, 2017. The Veteran is shown to have been capable of obtaining and maintaining employment for the period prior to January 10, 2017. As such, the preponderance of the evidence at this time is against the claim of entitlement to a TDIU rating prior to January 10, 2017. The Veteran and his representative have not raised any other issues in connection with this 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.