Citation Nr: 21063822 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 10-30 529 DATE: October 18, 2021 ORDER Entitlement to effective date prior to February 1, 2006 for the award of a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence does not include an indication of an informal claim for a TDIU prior to February 1, 2006. 2. The Veteran's employment with the WeGroup architectural company was not a sheltered work environment. 3. The Veteran's self-employment subsequent to his employment with WeGroup was not marginal employment. 4. The Veteran's service-connected disabilities did not render him unable to secure or maintain substantially gainful employment prior to February 1, 2006. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to February 1, 2006 for the award of entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107, 5110, 7105; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1977 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim that an effective date prior to July 12, 2006 is warranted for the award of a TDIU. By way of history, the Veteran was awarded a TDIU in a March 2008 rating decision and an effective date of July 12, 2006 was assigned. The RO explained in this decision that this was the date the Veteran met the schedular requirements for a TDIU and the RO also noted the Veteran had successfully continued the claims process since the March 2007 rating decision, which had deferred the TDIU matter. This March 2007 decision was in response to the Veteran's July 12, 2006 claim for an increased rating for his service-connected headaches. In a July 2015 decision, the Board denied an effective date for TDIU earlier than July 12, 2006. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In March 2016, the Court granted the parties' Joint Motion for Remand (JMR) and remanded the issue back to the Board finding that the Board had failed to consider a July 2006 letter from the Veteran's physician as a claim. Because the Veteran did not meet the schedular requirement for a TDIU prior to July 12, 2006, the Board remanded the issue in September 2016 for referral to the Director, Compensation Service, for extraschedular consideration. In a May 2019 decision, the Board awarded the current effective date of February 1, 2006 for the Veteran's TDIU. At this time, the Board recognized the Veteran's July 2006 claim and noted that the appropriate period for review was one year prior to that claim for increase. 38 C.F.R. § 3.400(o). The February 1, 2006 effective date was assigned based upon the Veteran's report that he had last worked in February 2006. The Veteran again appealed the Board's decision to the Court, and the Court then granted another JMR in January 2020, finding that the Board did not provide adequate reasons and bases as to whether the employment prior to February 2006 was marginal in nature. In September 2020, the Board issued a decision finding that an effective date prior to February 1, 2006 is not warranted for the Veteran's TDIU. The Board found the Veteran's self-employment prior to February 1, 2006 was not marginal and also found the Veteran's service-connected disabilities did not render him unemployable prior to February 1, 2006. The Veteran again appealed the decision to the Court and, in May 2021, the Court granted another JMR. The matter is now again before the Board for adjudication. Entitlement to Effective Date Prior to February 1, 2006 for TDIU As noted above, the Board recognizes the Veteran's TDIU claim stems from the July 2006 increased rating claim, such that the appropriate period for review is one year prior to July 2006. 38 C.F.R. § 3.400(o). As the Veteran's TDIU is currently assigned effective February 1, 2006, the question is whether the Veteran's service-connected disabilities rendered him unemployable between July 2005 and February 1, 2006. The Board recognizes the Veteran's contention, by way of his representative's June 2020 statement, that he is entitled to TDIU rating prior to February 1, 2006, namely "May 1, 1984 or at minimum July 5, 2005." The Veteran's representative argued that, for the period prior to 1993, the Veteran's headaches precluded his ability to maintain substantially gainful employment. Alternatively, from 1993 to February 2006, the Veteran contends that his employment should be considered marginal because he worked in a protected environment with the WeGroup firm that "made special accommodations for him" and later when he was self-employed. Lastly, at a minimum, the Veteran contends that he is entitled to an effective date beginning July 2005 as the Board may assign an effective date up to the year prior to receipt of a claim. The Board also recognizes the most recent JMR findings. The parties indicated the Board failed to discuss March 2015 Board testimony as evidence of marginal employment dating back to November 2005. The parties also indicated the Board failed to adequately discuss a July 2006 statement by R.C., M.D. Finally, the parties indicated the Board failed to adequately discuss the Veteran's employment with WeGroup from March 1993 to March 2002 and whether this employment was in a protected and/or sheltered work environment. The parties pointed out February 2001 and April 2002 statements from WeGroup showing he was provided with special concessions for time, schedule and workload and that the company provided him with flexibility to maintain a schedule that worked around his disability. The Board will discuss each of these things, in turn, below. While the timespan under consideration for an earlier effective date based upon the date of the claim is between July 2005 and February 1, 2006, the Board recognizes the JMR is referring to records from years earlier and the Board will consider whether any of these records represented an informal claim for TDIU such that an earlier effective date could be assigned on that basis. Determining whether a TDIU is appropriate is predicated on whether a claimant can obtain or maintain substantially gainful employment. Substantially gainful employment does not include marginal employment, which is deemed to exist when a claimant's annual income does not exceed the poverty threshold for one person. 38 C.F.R. § 4.16(a). The Board recognizes that marginal employment may also be held to exist on a facts found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. Moore v. Derwinski, 1 Vet. App. 356 (1991). In the July 2007 formal application for TDIU benefits, the Veteran reported that he attended college from September 1986 to January 1992 and earned a degree in architecture. Regarding employment, the Veteran reported working 34 hours per week for the WeGroup architectural firm from March 1993 to October 2002 earning $3400 monthly. Thereafter, the Veteran began his own firm, working 15 hours weekly as an "architect and draftsman" from February 2003 to February 2006, when his highest earnings per month was reported as $2500. Pre-1993 As an initial matter, the Board again notes that schedular requirements for TDIU are not met until July 2006 when the combined overall disability picture meets the minimal threshold. However, as there has already been initial consideration of an extraschedular TDIU by the RO, and a grant of an effective date from February 1, 2006, this concern is effectively moot. This analysis will solely focus on the Veteran's ability to gain and maintain employment that is not merely marginal. The Veteran suggested interpretation that he is entitled to TDIU prior to 1993 is difficult to reconcile with the principle that disability ratings which are less than total necessarily reflect some degree of interference with employment. "A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment." Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Board acknowledges that the record includes numerous lay statements submitted between 1983 and 2001 suggesting the impact of the Veteran's headaches on his ability to work. Moreover, the Board recognizes R.C., D.C.'s July 2006 statement indicating the Veteran was receiving treatment for chronic debilitating headaches that have plagued him over a period of twenty-eight years and that the headaches make employment impossible. This private treatment record was not received until 2006; thus, it cannot be used as a basis for an earlier effective date, as it was not of record at any time prior to the current effective date for the Veteran's TDIU. Further, this person did not indicate unemployability for the entire twenty-eight-year span of his treatment. The other evidence of record also is without an indication the Veteran was unemployable due to his headaches. The impact on his ability to work during the period between 1984 and 1993 is recognized by the 50 percent disability evaluation assigned since May 1, 1984. Moreover, the Board finds it significant that the Veteran was able to attend school and earn a degree in architecture between 1986 and 1992. See July 2007 VA Form 21-8940. The Board finds that the successful pursuit of an advanced degree bespeaks strongly against the inability to successfully secure and maintain gainful employment; thus, a preponderance of the evidence is against finding an effective date for TDIU prior to 1993. 1993 to 2006 The evidence shows the Veteran was employed and receiving compensation from the WeGroup architectural firm between March 1993 and 2002. The Veteran contends that this employment was a "protected environment." The most recent JMR suggests a discussion is needed as to whether the employment was sheltered such that it warrants a determination that it was marginal employment. The Board again notes that this evidence would have to establish that the Veteran was unemployable due to service-connected disabilities between July 2005 and February 1, 2006, or that an informal claim was being made for TDIU benefits prior to July 2005. The Veteran does not contend, nor does the evidence show that he received an income less than the poverty threshold limit during the majority of the time he was employed at WeGroup. See i.e. June 2020 SSA Earnings Record; see also June 2020 Oregon Department of Veterans Services brief ("[Veteran] income exceeded the federal poverty threshold from 1993 to 2001.") Rather the Veteran alleges that the accommodations provided by the employer characterizes the working environment as "sheltered." See i.e. February 2001 WeGroup correspondence; see also June 2020 Oregon Department of Veterans Services brief ("made special accommodations for him during his employment, including flexibility"). To the extent that the evidence corroborates the Veteran's absenteeism and flexible schedule as support for a finding of marginal employment, the theory that employment is necessarily marginal because the Veteran does not have a normal full-time work schedule conflicts with the Court's decision in Foust v. West, 13 Vet. App. 342 (2000). In Foust, where, as here, "the veteran became employed, as shown by clear and convincing evidence, at a substantially gainful occupation- i.e., one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income prior to his having been awarded a 100 percent rating based on individual unemployability- such employment constitutes, as a matter of law, a substantially gainful occupation...." See Foust v. West, 13 Vet. App. 342, 350 (2000). The Board recognizes the findings in Moore v. Derwinski, 1 Vet. App. 356; however, in this case, the facts do not show the accommodations made for the Veteran at WeGroup amounted to the work being marginal in nature. By the Veteran's own account, he earned more than the poverty threshold, and the SSA earning records additionally demonstrate that his earnings increased with his subsequent years of employment, despite claimed accommodations affecting performance. The Board also notes that, while he was accommodated, We Group eventually determined that he was physically unable to perform the duties of his job description with or without reasonable accommodations, which weighs against a finding that he was employed in a protected environment. Rather, it shows that some accommodations were made for a time so that the Veteran could work for the company, but after a time, no further accommodations would be made. The Veteran's April 2002 statement indicates he was terminated once his effectiveness and proficiency declined. The Board indeed recognizes that during his employment with WeGroup, the company made some accommodations for his disability. This fact, alone, does not give rise to a finding that his work was in a sheltered environment. The evidence shows this was not a sheltered environment and that the Veteran's employment ceased once his performance declined. Concerning the Veteran's period of self-employment between 2002 and 2006, he contends that his headache disability relegated him to part-time hours and an income below the poverty level. See April 2015 Board hearing testimony; also see June 2020 Oregon Department of Veterans Services. At his Board hearing, he reported that after his job at WeGroup ended in March 2002, he was self-employed and worked fifteen to twenty hours per week until November 2005, after which he was barely able to make rent. The Board indeed recognizes his April 2015 testimony related to the earlier period of time. However, there is no evidence in the record received by VA in November 2005 that indicated any informal claim for a TDIU at that time. Further, this hearing testimony is inconsistent with the Veteran's 2007 TDIU claim form, which reflects the Veteran reported he was unable to work from March 1, 2006. And, both dates the Veteran gave are inconsistent with a February 2007 SSA Field Office Disability report, which shows the Veteran reported he last worked March 20, 2006. In a June 2020 statement, the Veteran again suggested he was unable to work since November 2005; yet, in the same statement he reported he went to the trouble to formally merge his business with that of his wife's on January 31, 2006, reflecting a perceived capacity to work at least as of that date. Such inconsistent reports lead the Board to find the Veteran's statements to lack credibility. Further, at the time of the hearing, the Veteran and his representative recognized the fact that there was not an active claim pending at the earlier time in question. The Veteran's representative suggested they believed that had VA taken a closer look at the evidence at a much earlier date, they would have determined that an extraschedular rating for the Veteran's headaches would have been warranted. This suggests the Veteran was claiming some level of error in a prior determination by the RO. This would require a claim for clear and unmistakable error (CUE) in a specific prior RO determination. No such claim has been made in this case. Following a review of the record, the Board finds the evidence does not support the Veteran's claim that due to his headache disability, his period of self-employment between 2002 and February 2006 was marginal and therefore would serve as a basis for an earlier effective date for TDIU. Moreover, there was no indication in any of the records during this timeframe that an informal claim was being raised for a TDIU. In coming to this determination, the Board finds that the Veteran's reports of employment ability and his salary following his departure from WeGroup are not credible and therefore are not probative and ultimately undermine the other evidence in support of his position. Beginning with his departure from WeGroup, the statements and evidence associated with the record fail to paint a consistent picture of how and exactly when the Veteran's employment with the firm ceased, and when the Veteran was unable to work. April 2002 correspondence indicates the Veteran was terminated from employment as of March 27, 2002, yet his 2007 VA Form 21-8940, indicates he stopped working for the architecture firm in October 2002. Similarly, the Veteran has not provided a consistent report of his income. While the SSA Earnings record reflects the Veteran only earning between zero and nine thousand dollars during the interval from 2002 and 2006, the February 2007 SSA Field Office Disability Report shows the Veteran reported earning nine thousand dollars yearly between March 1993 and March 2006; and on the July 2007 VA Form 21-8940, he reported at least the capacity to earn $2500 per month ($30,000 annually). Given the varying reports of income and capacity to work in the context of self-employment during the 2002-2006 interval, the Board does not find it credibly established that prior to February 1, 2006, the Veteran's headache disability rendered him capable of only marginal employment, or that he was unable to secure or follow a substantially gainful occupation as a result of service connected disability. Moreover, the evidence of record during this time period does not include any evidence suggesting an informal claim for a TDIU was being raised. Accordingly, this claim for an effective date prior to February 1, 2006 for the award of TDIU benefits must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.