Citation Nr: 21066971 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 12-11 437 DATE: November 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 7, 2013 is denied. FINDING OF FACT Prior to January 7, 2013, the Veteran's service-connected disabilities did not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW Prior to January 7, 2013, the criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 4.18, 4.19 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from August 1974 to August 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the Board held by the undersigned in January 2018. A transcript of the hearing is of record. Subsequently, the case was before the Board in May 2018, June 2019, July 2020, and February 2021 when it was remanded for further development. In the August 2021 supplemental statement of the case, the Agency of Original Jurisdiction (AOJ) noted that from January 7, 2013 entitlement to TDIU is moot because the combination of the Veteran's service-connected disabilities is 100 percent disabling and no potential entitlement to an earlier effective date based on TDIU is warranted. The AOJ correctly determined that TDIU is moot from January 7, 2013, when the Veteran's combined disability rating totaled 100 percent, since an award of TDIU from January 7, 2013 would result in duplicate counting of disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008). However, as the Veteran filed his claim for an increased rating for sarcoidosis, the claim for which the current TDIU claim derives from, in April 2009, the issue of entitlement to TDIU prior to January 7, 2013 is not moot and is currently before the Board as TDIU was raised as part of the April 2009 increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). Thus, the Board will adjudicate entitlement to TDIU prior to January 7, 2013 herein. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). Entitlement to TDIU prior to January 7, 2013 is denied. As is noted above, entitlement to TDIU prior to January 7, 2013 is currently before the Board. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Court recently held that "substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component "simply 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." Id. The non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Further, the word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 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). In this case, prior to January 7, 2013, the Veteran met the schedular requirements for TDIU as of July 20, 2009. At that time, the Veteran was service connected for sarcoidosis, evaluated as 50 percent disabling, diabetes associated with sarcoidosis, evaluated as 20 percent disabling, and hepatic sarcoidosis with cirrhosis of the liver associated with sarcoidosis, evaluated as 10 percent disabling. As these disabilities all resulted from a common etiology, they are considered one disability and met the requirements for a 60 percent single disability rating pursuant to § 4.16(a). As such, the schedular requirements for a TDIU rating are met from July 20, 2009. Further, from February 22, 2010 to January 6, 2013, the Veteran's evaluation for hepatic sarcoidosis was changed to be evaluated as gastritis to include hepatic sarcoidosis with cirrhosis of the liver and was evaluated as 60 percent disabling. Additionally, the Veteran was also service connected during this time for hives, evaluated as 60 percent disabling, and hypertension, evaluated as noncompensable. The question remaining is whether the Veteran's service-connected disabilities (alone) rendered him incapable of participating in a substantially gainful occupation. The applicable appeal period here is back to April 2009, the date VA received the Veteran's application for an increased rating for his service-connected sarcoidosis. As noted, the Veteran did not meet the schedular requirements prior to July 20, 2009. During the period prior to July 20, 2009, he was only service connected for sarcoidosis, evaluated as 50 percent disabling. However, although the percentage requirements of § 4.16(a) were not met prior to July 20, 2009, total disability ratings for compensation may be assigned 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, 3.341, 4.16(a). Such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). Here, the evidence of record reflects that the Veteran was working full-time throughout the applicable appeal period, the period prior to January 7, 2013. The Board's February 2021 remand in part sought clarification from the Veteran regarding his employment as a pastor, noting the conflicts between the VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192) and VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) received by VA in August 2020. In May 2021, the Veteran submitted a duplicate of the VA Form 21-4192 that VA initially received in August 2020. In addition, a July 2021 Report of General Information reflects that the Veteran reported that he has submitted all of the information that he has, and he requested VA to proceed with making a decision. The VA Form 21-4192 reflects that the Veteran last worked on November 11, 2013. Furthermore, the VA Form 21-4192 reflects that the date of his last payment was November 11, 2013, the gross amount of the payment was 3,000 dollars, and the payment was not a lump sum payment. In addition, the VA Form 21-4192 reflects that the Veteran earned 60,000 dollars in the preceding 12 months, and the form reflects that the Veteran worked 40 hours per week. The Board acknowledges that there are conflicting reports from the Veteran in the record regarding when he last worked. Of note, the Veteran reported at his January 2018 Board hearing that he last worked around 2011, and he reported that he was working part-time as a pastor. He reported at his November 2018 hypertension VA examination that he was working full-time. In a January 2019 VA Form 21-8940, the Veteran reported he last worked full-time in November 2012 as an instructor, and he reported in a June 2019 VA Form 21-8940 that he last worked full-time in September 2009. Furthermore, in a June 2019 VA Form 21-4138, Statement in Support of Claim, the Veteran reported that he worked 12 hours a week as a pastor since 2003 and earned about 12,000 dollars a year. In the VA Form 21-8940, received in August 2020, he reported that he last worked in August 2020 as a pastor, with highest gross earnings per month of 6,000 dollars. However, following the remand seeking clarification from the Veteran regarding his employment as a pastor, the Veteran submitted the VA Form 21-4192 in May 2021 reflecting that he last worked at a substantially gainful level in November 2013. As the Veteran submitted this information in response to the Board's request for clarification of his employment, the Board places the greatest weight of probative value on this report. This report does not reflect that his employment as a pastor was marginal in any manner and does not reflect that his income was at or below the poverty threshold for one person as determined by the U.S. Department of Commerce or that it constituted employment in a protected environment. The Board acknowledges that a December 2009 private treatment record contains a notation of "[c]hronic liver disease, disabling, without signs of meaningful gainful employment." In addition, at an October 2010 VA examination for hepatitis, the Veteran reported 5 incidents of incapacitating episodes in the preceding year that lasted a total of 30 days. However, as is noted above, the most recent evidence reported by the Veteran after a request for clarification of his dates of employment illustrates that the Veteran was employed at a substantially gainful level until November 2013. Here, despite the Veteran's service-connected disabilities, he continued to demonstrate prior to January 7, 2013 that he not only had the necessary education, skill, and training, but also had the physical and mental ability to engage in employment as a pastor by maintaining the position throughout the pertinent appeal period. Therefore, entitlement to TDIU, on an extraschedular basis prior to July 20, 2009, and on a schedular basis from July 20, 2009 to January 6, 2013 is not warranted, and the claim is denied. 38 C.F.R. § 4.16. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.