Citation Nr: 21066535 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 11-08 416 DATE: November 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 5, 2009, and from October 1, 2009, to October 6, 2013, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) from January 5, to September 30, 2009, and as of October 7, 2013, is denied. FINDINGS OF FACT 1. Prior to January 5, 2009, and from October 1, 2009, to October 6, 2013, the Veteran's service-connected disabilities at least as likely as not prevented him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him. 2. From January 5, to September 30, 2009, and as of October 7, 2013, the Veteran worked full-time. CONCLUSIONS OF LAW 1. Prior to January 5, 2009, and from October 1, 2009, to October 6, 2013, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. 2. From January 5, to September 30, 2009, and as of October 7, 2013, the criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1988 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2014, the Board denied the Veteran's claim to TDIU. That decision was vacated by the Court of Appeals for Veterans Claims (Court) in a June 2016 memorandum decision, and the claim was returned to the Board for adjudication. This matter was previously remanded by the Board in August 2017, February 2019, September 2020, and May 2021. The case has been returned to the Board at this time for further appellate review. In May 2021, the Board remanded this matter to obtain addendum opinions regarding the Veteran's TDIU claim. In this regard, the examiner was directed to comment on an April 2017 Employability Evaluation from R.B. Addendum opinions were obtained in July 2021, as amended in August 2021. However, the VA clinician who provided an opinion regarding the Veteran's service-connected cervical spine, lumbar spine, migraine headaches, and bilateral lower extremity radiculopathy did not address the April 2017 Employability Evaluation. Although there has not been substantial compliance with the prior remand directives, the Board finds that this is not prejudicial to the Veteran for the following reasons. First, the Veteran has limited the issue on appeal to entitlement to TDIU from 2008 to 2013, as discussed in further detail below. Second, the Board has granted TDIU for the entire time period on appeal except for the periods during which the Veteran was substantially gainfully employed. Because remand for a VA clinician to address the April 2017 Employability Evaluation would not change the fact that the Veteran was substantially gainfully employed during certain portions of the time period on appeal, as further addressed below, the Board's finds that there is no prejudice to the Veteran in determining the issue on appeal on the merits at this time. 1. Entitlement to TDIU prior to January 5, 2009, and from October 1, 2009, to October 6, 2013, is granted. 2. Entitlement to TDIU from January 5, to September 30, 2009, and as of October 7, 2013, is denied. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, 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. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Here, the Board determined that the Veteran first raised the issue of entitlement to TDIU as part of his appeal of a November 2009 rating decision regarding the rating assigned to his service-connected cervical and lumbar disabilities, as well as his service-connected depression. The issue of entitlement to TDIU has remained on appeal since. However, a claimant may limit the scope of an appeal stream by clearly expressing an intent to exclude certain issues from appellate consideration. See 38 C.F.R. § 20.202; see also AB v. Brown, 6 Vet. App. 35, 39 (1993). Here, the Veteran's representative has repeatedly and clearly expressed that the Veteran seeks entitlement to TDIU from 2008 to 2013. See Representative's Briefs dated June 2017, March 2018, August 2020, April 2021, and September 2021. Thus, the Board finds that the issue on appeal has been limited to entitlement to TDIU from 2008 to 2013. From April 28, 2006, to December 14, 2009, the Veteran's combined evaluation was 60 percent. Specifically, the Veteran was rated for cervical strain and lumbosacral strain, both resulting from the same motor vehicle accident, as well as depression associated with lumbosacral strain. Thus, the Veteran's disabilities resulted from a single accident and are considered as one disability for purposes of TDIU. As of December 15, 2009, the Veteran had a combined evaluation of 70 percent with at least one disability, for purposes of TDIU as stated previously, having a combined rating of 40 percent or more. Thus, the Veteran meets the schedular criteria for the entire time period on appeal. The record reflects that the Veteran was employed during part of the year 2008. Although the specific dates of employment are not completely clear based on the evidence of record, it appears to the Board that any employment during the year 2008 was marginal on an income basis. The Veteran's Social Security Earnings Record establish that he earned $6563 during the year 2008. The poverty threshold for one person in 2008 was $10,991. See U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited Oct. 25, 2021). Thus, the Veteran's income fell below the poverty threshold in 2008 and is considered marginal. In addition, the April 2017 Employability Evaluation from R.B. reflects that, in 2008, the Veteran's back pain was becoming unbearable, and the limited employment he had in 2008 involved long distance driving and prolonged sitting, both of which exacerbated his service-connected disabilities. The evaluation notes that Veteran was experiencing constant back pain, which caused difficulty concentrating and focusing on work related tasks, flare-ups of his service-connected disabilities once every two weeks, on average, and his walking was limited to 30 minutes at a time. The evaluator determined that these symptoms exacerbated his service-connected depression, and he became increasingly irritable and isolative. From January 5, to September 30, 2009, the Veteran worked full time as a case manager. The record reflects that the Veteran earned $17,326 during the year 2009. In 2009, the poverty threshold for one person was $10,956. See U.S. Census Bureau, Poverty Thresholds, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited Oct. 25, 2021). Thus, the Board finds that the Veteran's income as reported in 2009 exceeded the poverty threshold for one person, and thus, the evidence supports a finding that the Veteran's employment from January 5, to September 30, 2009, was not marginal, based on his income. In addition, there is no evidence that the Veteran's employment from January 5, to September 30, 2009, was marginal on a facts found basis. Thus, the Board finds that the Veteran was engaged in substantially gainful employment from during this time period. From October 1, 2009, to October 7, 2013, the Veteran was not substantially gainfully employed. In fact, at most, the Veteran participated in a work study program during this time period, however, this was marginal employment as the Veteran's Social Security Earning Report reflects that the Veteran did not have taxable income from 2010 to 2012. An April 2017 Employability Evaluation from R.B. notes that the Veteran's employment during 2009 again exacerbated his service-connected disabilities such that he had to resign, and that the Veteran's service-connected disabilities would have rendered him incapable of performing any work in the national economy during the period between 2008 through 2013, at which point he returned to work after obtaining additional skills through the VR&E program. An August 2010 VR&E narrative report reflects that the Veteran (1) was limited in lifting, carrying, pushing, pulling, reaching, overhead work, and grasping, (2) reported limited movement of the neck and other physical activities which could have precluded employment in jobs with a high physical demand, (3) was unable to work in jobs that required prolonged sitting, and (4) did not have a degree that would qualify him for suitable employment and he could not return to previous jobs due the work not being suitable. For these reasons, as well as the fact that the Veteran's unemployment was outside his control, the VR&E counselor determined that the Veteran had a serious employment handicap based on his service-connected disabilities, with the following as contributing factors: withdrawal from society, unstable work history, chronic pain (impairing the Veteran's ability to concentrate, focus, and stay active), extent and complexity of needed rehabilitation services, and difficulty communicating. Thus, in light of the Veteran's education and work experience, the Board finds that, from October 1, 2009, to October 6, 2013, he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. (Continued on the next page) The record establishes that the Veteran began full-time employment again on October 7, 2013, as an admissions representative. There is no evidence that this employment was marginal on either an income or facts-found basis, and the Veteran and his representative do not argue otherwise. Thus, the Board finds that the Veteran was substantially gainfully employed as of October 7, 2013. In sum, the Board finds that, from 2008 to 2013, the Veteran's service-connected disabilities prevented him from engaging in substantially gainful employment prior to January 5, 2009, and from October 1, 2009, to October 6, 2013. To that extent, the appeal is granted. However, the Board finds that, because the preponderance of evidence establishes the Veteran was engaged in substantially gainful employment from January 5, to September 30, 2009, and as of October 7, 2013, the requirements of TDIU have not been met during these time periods, and to that extent, the appeal is denied. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.