Citation Nr: 21067030 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 13-13 244 DATE: November 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 31, 2011, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from September 10, to November 20, 2012, and as of July 3, 2014, is granted. FINDINGS OF FACT 1. Prior to August 31, 2011, the Veteran worked full-time. 2. From September 10, to November 20, 2012, and as of July 3, 2014, 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. CONCLUSIONS OF LAW 1. Prior to August 31, 2011, the criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 2. From September 10, to November 20, 2012, and as of July 3, 2014, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in June 2015, January 2018, February 2020, and February 2021. The case has been returned to the Board at this time for further appellate review. The case was last remanded in order to grant the Veteran the opportunity to clarify certain aspects of his employment history and for referral to the Director of Compensation and Pension Services, for consideration of whether TDIU is warranted on an extraschedular basis. The Veteran has provided the clarifying information and the Director has provided an Advisory Opinion. Accordingly, the Board finds there was substantial compliance with the prior remand directives. 1. Entitlement to TDIU prior to August 31, 2011, is denied. 2. Entitlement to TDIU from September 10, to November 20, 2012, and as of July 3, 2014, is granted. 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). Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). Section 4.16 of VA's regulations does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, as above, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. 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 July 2011 rating decision regarding the rating assigned to his service-connected back condition. The issue of entitlement to TDIU has remained on appeal since. However, in the Board's February 2021 decision, the Board determined that entitlement to TDIU from August 31, 2011, to September 9, 2012, and from November 21, 2012 to July 2, 2014 was not warranted. Thus, the only issues remaining on appeal are entitlement to TDIU prior to August 31, 2011, from September 10 to November 20, 2012, and as of July 3, 2014. The Board notes that, since the February 2021 Board remand, the Veteran's combined rating as of April 12, 2013 has changed. From December 4, 2008, to April 11, 2013, the Veteran's combined evaluation was 40 percent. The Veteran's combined rating as of April 12, 2013 was 80 percent, with at least one disability rated at 40 percent or more. Thus, as before, the Veteran does not meet the schedular criteria prior to April 12, 2013; however, the Veteran now meets the schedular criteria for TDIU as of April 12, 2013. Prior to August 31, 2011 As an initial matter, on June 29, 2011, the Veteran attended a VA examination as part of a periodic re-evaluation of his service-connected lumbar spine disability. A July 2011 rating decision continued the evaluation of the Veteran's service-connected lumbar spine disability as 40 percent disabling. To the extent that the issue of TDIU implicates the provisions of 38 C.F.R. § 3.400(o)(2) as a component of the Veteran's appeal of the July 2011 rating decision, the Board finds there was not a significant change in the Veteran's employment status in the one-year period prior to the July 2011 periodic re-evaluation. The Veteran was unemployed from June 2010 to June 2011. Because this period of unemployment began outside the one-year period prior to the July 2011 periodic re-evaluation, an effective date of TDIU prior to the date of the periodic re-evaluation is not warranted. The Veteran has stated that he began working full time at Sears on June 30, 2011. Thus, for the reasons stated in the Board's February 2021 opinion, entitlement to TDIU prior to August 31, 2011 is denied because the Veteran was substantially gainfully employed. From September 10, to November 20, 2012 As to the period from September 10, to November 20, 2012, the Veteran's April 2021 statement notes that he was working full time in 2012, but that he was placed on leave of absence due to the physical restrictions caused by his service-connected lower back and knee disabilities. This is corroborated by a November 2012 private treatment record which reflects that the Veteran's rheumatoid arthritis prevented him from performing his work functions. A December 2012 Decision on Unemployment Compensation Claim reflects that the Veteran was on a leave of absence from his job at Sears from September 10, to November 20, 2012. The Board notes that, while the Veteran was not granted unemployment compensation during this time period because he eventually returned to work and he did not voluntarily leave his employment, it was determined that he was physically unable to do his job from September 10, to November 20, 2012. Thus, after resolving any benefit of reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment from September 10, to November 20, 2012. The Board notes that the Veteran did not meet the schedular requirements for TDIU during this time period, however, this matter was already referred to the Director for extraschedular consideration. The Board is not bound by an adverse determination by the Director regarding extra-schedular entitlement to TDIU. The Court has determined that the Director's decision is, in essence, a decision by the AOJ and is no different than an RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). As of July 3, 2014 The Board notes that, as stated above, the Veteran's combined rating has changed since the February 2021 Board remand, and he now meets the schedular criteria for TDIU as of April 12, 2013. The Veteran has clarified that, from July 3, 2014, to January 13, 2015, he was on short-term disability and was not paid after October 2014. On July 6, 2014, the Veteran was hospitalized, in part, due to his rheumatoid arthritis. The Veteran was determined to be disabled by the Social Security Administration as of July 6, 2014. In a December 2014 statement, the Veteran noted that work had become impossible for him because his service-connected disabilities, as well as the medications he took for them made him dangerous to be around in the work environment. The Veteran also noted that his physician suggested that he stop working because he could not continue to survive under the same conditions. In April 2015, the Veteran's Vocational Rehabilitation Counselor determined that, because the Veteran's service-connected disabilities had worsened, the significant limitations and restrictions they imposed on his ability to obtain employment rendered him unable to obtain or maintain employment. The Veteran's counselor went on to state that it was not feasible for the Veteran to obtain and maintain employment due to the significant employment limitations and restrictions he was experiencing as a result of his service-connected disabilities and their effect on virtually every aspect of his life. In June 2017, a private vocational expert opined, with a high degree of certainty, that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities without regard to any other conditions, since at least January 13, 2015, when he was last capable of working as the maintenance technician for Sears. A September 2020 VA examination reflects that the Veteran's service-connected bilateral knee condition results in his inability to (1) sit or stand for long periods of time without increased swelling and pain, (2) crouch down without being able to get back up, and (3) lift heavy objects or push and pull them without causing a flare up. A November 2020 VA opinion reflects that the Veteran's service-connected back condition resulted in the Veteran's inability to lift heavier objects without pain or causing flare ups, or bend over and pick things up. The Veteran's back disability also prevented him from bending at the knees and getting up, and it resulted in the Veteran having to take multiple breaks from prolonged sitting or standing to relieve pressure and pain. A December 2020 VA opinion reflects that the Veterans psychiatric disabilities resulted in (1) difficulty maintaining concentration and focus on work over a period of time, tending to skip from one task to another without completing the prior task, and (2) depression such that he has difficulty sustaining energy and motivation to complete assignments at work. (Continued on the next page) An April 2021 VA examination of the Veteran's service-connected arthritis reflects that the Veteran experiences four or more incapacitating exacerbations every year, lasting one to two weeks, and an April 2021 VA examination of the Veteran's knees reflects that he is limited in his ability to stand and walk, and he cannot bend or stoop. A September 2021 Vocational Assessment from F.F. reflects that, in his opinion, and considering the medical records related to the Veteran's service-connected back condition and rheumatoid arthritis with bilateral knee involvement, the Veteran has been unable to secure or follow substantially gainful employment, regardless of skill or exertional level, since at least April 2013. Additionally, F.F. opined that the Veteran has been further precluded from securing or following substantially gainful employment, regardless of skill or exertional level, due to his service-connected acquired psychiatric disorder, since at least June 2017. Thus, the Board finds that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment since July 3, 2014. In sum, the Board finds that, because the preponderance of evidence establishes the Veteran was engaged in substantially gainful employment prior to August 31, 2011, the requirements of TDIU have not been met during this time period, and to that extent, the appeal is denied. However, the Board also finds that, from September 10, to November 20, 2012, and as of July 3, 2014, the Veteran's service-connected disabilities prevented him from engaging in substantially gainful employment. To that extent, the appeal is granted. 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.