Citation Nr: 21004138 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 06-17 178 DATE: January 26, 2021 ORDER An effective date earlier than June 22, 2007 for the award of a total disability rating based on individual unemployability based on service-connected disability (TDIU) is denied. FINDING OF FACT Prior to June 22, 2007, the Veteran was employed full-time as a medical assistant and his service-connected disabilities, singularly or in combination, were not of such severity as to preclude substantially gainful employment. CONCLUSION OF LAW The criteria for an effective date earlier than June 22, 2007 for the assignment of a TDIU have not been met. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from December 1993 to January 1999. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which, in part, denied a TDIU. Significantly, during the course of this appeal, by rating decision dated in June 2010, the RO granted service connection for schizophrenia, assigning a 30 percent disability rating effective May 25, 2006 and a 50 percent disability rating effective September 17, 2007. Subsequently, by rating decision dated in October 2012, the RO increased the Veteran’s disability rating for schizophrenia to 100 percent disabling effective November 25, 2009. In September 2011, April 2014, August 2015, and May 2017, the Board remanded the TDIU claim to the Agency of Original Jurisdiction (AOJ) for further development. Pursuant to the May 2017 remand, the TDIU issue was referred to the Director of Compensation Service, Veterans Health Administration (“Director of Compensation Service” or “Director”) for extra-schedular consideration. Significantly, in December 2017, the Director granted an extra-schedular TDIU effective September 17, 2007, based on the Veteran’s service-connected schizophrenia, which was effectuated by rating decision dated in February 2018. In May 2018, the Board granted an even earlier effective date for the award of a TDIU to June 22, 2007. Thereafter, the Veteran appealed the May 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Memorandum Decision, the Court vacated the May 2018 decision. The case was remanded by the Board again March 2020 pursuant to the August 2019 Memorandum Decision. With regard to representation, the Veteran was previously represented by Disabled American Veterans but revoked this representation in December 2020 correspondence. As such, the Veteran is currently unrepresented. An effective date earlier than June 22, 2007 for the assignment of a TDIU is denied. By way of history, the Veteran submitted an initial claim for service connection for a psychiatric disability in May 2006. Significantly, in connection with this claim, the Veteran wrote that he was working with the public but had difficulty concentrating on his job duties. A December 2006 VA treatment record shows that, while the Veteran was currently employed as a medical assistant, working two different jobs 12 hours per day, he had problems with concentration while working. Also, in January 2007 correspondence, the Veteran wrote that he was currently working but that he had had difficulty maintaining steady employment since his discharge from military service in 1998. By rating decision dated in January 2008, the RO denied a TDIU, finding that the Veteran did not meet the schedular criteria for a TDIU. The Veteran disagreed with this decision and perfected an appeal. Subsequently, by rating decision dated in June 2010, the RO granted service connection for schizophrenia, assigning a 30 percent disability rating effective May 25, 2006 and a 50 percent disability rating effective September 17, 2007. Thereafter, by rating decision dated in October 2012, the RO awarded a 100 percent rating for the Veteran’s service-connected schizophrenia effective November 25, 2009. In April 2014, the Board took jurisdiction of the issue of entitlement to a TDIU prior to November 25, 2009 pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the issue for additional development. As above, in December 2017, an extra-schedular TDIU was granted effective September 17, 2007, based on the Veteran’s service-connected schizophrenia. In May 2018, the Board granted an even earlier effective date for the award of a TDIU to June 22, 2007, finding that this was the last time the Veteran was substantially and gainfully employed. Specifically, this decision notes that the Veteran was working full-time as a medical assistant until June 21, 2007 and was in receipt of Social Security Disability benefits beginning June 22, 2007. This decision also noted that, while the Veteran has worked since June 22, 2007, such employment has not been substantially gainful and, at best, qualifies as marginal employment only based on the number of hours worked and/or the amount of money the Veteran earned. On his March 2020 formal claim for a TDIU, the Veteran wrote that he became too disabled to work in June 2004 but last worked full-time as a crossing guard in February 2019 and had been working part-time as a substitute teacher since December 2019. More recently, on his May 2020 formal claim for a TDIU, the Veteran wrote that he became too disabled to work in May 2000 but last worked full-time in June 2004 and was currently working part-time as a substitute teacher. The Veteran seeks an effective date earlier than June 22, 2007 for his award of a TDIU and contends that he was unable to maintain substantially gainful employment prior to this date. Specifically, he contends that his schizophrenia has affected his ability to maintain full-time employment since at least May 12, 2000. TDIU ratings for compensation may be assigned, where the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran has been in receipt of a 10 percent disability rating since January 10, 1998, a 30 percent disability rating since January 29, 2001, a 50 percent disability rating since May 25, 2006, a 60 percent disability rating since September 17, 2007, and a 100 percent disability rating since November 25, 2009. As such, the Veteran did not meet the schedular criteria for a TDIU until November 25, 2009. Nonetheless, when a Veteran is found to be unemployable and the schedular criteria are not met under 38 C.F.R. § 4.16 (a), an extraschedular TDIU is possible under 38 C.F.R. § 4.16 (b). As such, the Veteran’s award of a TDIU effective June 22, 2007 is on an extraschedular basis. The effective date of an award based on a claim for increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). VA regulations provide that the effective date for increases shall be the “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(o)(1). Under this rule, an effective date for an increased rating may be assigned later than the date of receipt of the claim -- if the evidence shows that the increase in disability actually occurred after the claim was filed -- but never earlier than the date of receipt of the claim. The law provides one exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). The regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of doubt is afforded the claimant. 38 U.S.C. § 5107(b). Former regulations provide that a claim is “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.” 38 C.F.R. § 3.1(p). A report of examination or hospitalization which meets certain requirements will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a). Once a formal claim for compensation has been allowed, receipt of a report of examination or hospitalization by uniformed services will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157(a), (b). When the following reports relate to examination or treatment of a disability for which service connection has previously been established, the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of claim and the date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. 38 C.F.R. § 3.157(b)(1). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned 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 in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17 (a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Pursuant to the March 2020 Board remand, development was sought concerning the Veteran’s employment as a medical assistant prior to June 22, 2007 and whether this employment was substantially gainful and/or in a protected environment. In response to this development, in July 2020 correspondence, the Veteran’s prior employer noted that the Veteran’s previous employment as a medical assistant was terminated in September 2007 as the Veteran did not return from a leave of absence. Significantly, the Veteran’s prior employer did not list any concessions made to the Veteran by reason of disability. The Veteran’s prior employer also submitted tax returns showing that the Veteran had an adjusted gross income of $17,888 in 2006 and an adjusted gross income of $9,734 in 2007. Upon review of the above, the Board finds that the evidence is against a finding that the Veteran’s service-connected disabilities prevented obtaining or maintaining substantially gainful employment prior to June 22, 2007. The undisputed evidence demonstrates that the Veteran was substantially gainfully employed prior to June 22, 2007 and was earning income above the poverty threshold. Significantly, the total amount earned by the Veteran in 2006 was more than the poverty threshold for 2006 and the total amount earned by the Veteran in 2007 was only slightly below the poverty threshold for 2007. For 2006, the Census Bureau’s poverty threshold for one person was $9,800; for 2007, it was $10,210. As above, the Veteran had an adjusted gross income of $17,888 in 2006 and an adjusted gross income of $9,734 in 2007. Furthermore, the Veteran is in receipt of a TDIU for half of 2007. Thus, the Veteran’s employment during the appellate period was not marginal. See 38 C.F.R. § 4.16 (b). While the claims file shows that the Veteran had difficulty maintaining employment prior to June 22, 2007, the Veteran did, in fact, maintain substantial gainful employment in a nonprotected environment prior to June 22, 2007. As such, an effective date earlier than June 22, 2007 for the assignment of a TDIU is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.