Citation Nr: 21070036 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-15 849A DATE: November 22, 2021 ORDER An effective date for a total disability rating due to individual unemployability (TDIU) prior to April 1, 2017 is denied. FINDING OF FACT The Veteran maintained substantially gainful employment for the year prior to her claim for TDIU in March 2017. CONCLUSION OF LAW The criteria for entitlement to an effective date for TDIU prior to April 1, 2017 are not met. 38 U.S.C. §§ 5110(a), 5107(b); 38 C.F.R. §§ 3.400, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1981 to July 1984. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Effective Date Entitlement to an effective date for TDIU prior to April 1, 2017 is denied. The Veteran seeks entitlement to an earlier effective date for her rating of TDIU. TDIU has been assigned from April 1, 2017, and the Veteran also receives special monthly compensation (SMC) under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) on account of posttraumatic stress disorder claimed as chronic depression as a single disability upon which TDIU is based, and additional service-connected disabilities independently ratable at 60 percent or more, effective the same date. Specifically, the Veteran seeks a TDIU assignment date of as early as April 30, 2013, which is the date she first reached the schedular rating criteria for TDIU, based upon her 70 percent disability rating for PTSD. See August 2021 VA Form 21-4138 Statement In Support of Claim; June 2019 VA Form 9. In other correspondence, she has requested assignment of dates more recent than April 2013. See January 2021 VA Form 21-4138 Statement In Support of Claim; January 2021 Correspondence. Although the Veteran was employed for most of the interim period from 2013 to 2017, the Veteran argues she was only working a few hours per month because of her disabilities, and thus her employment was not substantially gainful. Id.; see January 2019 Notice of Disagreement. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether 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) rev'd on other grounds, 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). As a general rule, the effective date of an award of VA disability compensation, including TDIU, "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); 38 C.F.R. § 3.400. A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Thus, the effective date for an award of an increased rating (including a TDIU) will be the date of receipt of the claim or the date the entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was factually ascertainable. If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C. § 51110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2). TDIU awards serve an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring). The Veteran filed a claim for TDIU in March 2017. See March 2017 VA Form 21-526EZ, Fully Developed Claim (Compensation). Therefore, the Board must review the record to ascertain whether it is factually ascertainable that the Veteran became eligible for TDIU within one year prior to the receipt of the claim for TDIU in March 2017. 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. Faust v. West, 13 Vet. App. 342 (2000). According to the Census Bureau, the poverty threshold for a single person in 2016 was $12,486. In 2017, the poverty threshold for a single person was $12,752. See United States Census Bureau Poverty Thresholds, available at: https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last visited Nov. 17, 2021). The record shows the Veteran's most recent employment as an Advance Medical Support Assistant began in April 2015 and ended on March 31, 2017. See 5/4/2017 VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability. The Veteran had generally worked a regular schedule of 8 hours daily for 40 hours a week, and during the previous 12 months her total earnings before deductions were $28,322.03. Id. Leave and Earnings Statements (LESs) show that the Veteran earned a total of $29,737.54 during 2016. Before her termination of employment in March 2017, she had earned $5957.04 during the first three months of that year. See April 2017 Correspondence. The claim file contains additional information regarding disputes between the Veteran and her employer during the last year or so of her employment. Specifically, the Veteran argues that she had been granted leave for her medical disabilities, but the grant of leave was not honored, and she was fired from her job after taking too much time off. Records show the Veteran had applied for leave under the Family and Medical Leave Act (FMLA) in March 2016, to care for her child. In August 2016, she applied for additional leave under FMLA due to her own medical conditions. See April 2017 Correspondence. Although the record shows substantial debate over whether the Veteran had properly taken leave during this period, or whether she was absent without leave, there is no indication that these arguments had any impact whatsoever on her actual gross pay during the same time. The Veteran's LESs show that her FMLA leave (including leave without pay) was considered in the calculations of her total pay. See April 2017 Correspondence. That is, the Veteran's adjusted basic pay in 2016 would have been $40,860, but because of her unpaid FMLA leave, her gross pay that year was actually $29,737.54. Id. The record reflects that the Veteran did not have any dependents in 2016. See April and November 2016 Notification Letters. Thus, the Board finds that the disputes between the Veteran and her employer over her unpaid leave during the final year of her employment do not change the amount of actual pay the Veteran received during that time. The Board accordingly finds that the Veteran's pay in the year prior to her claim for TDIU in March 2017, exceeded the poverty thresholds established by the U.S. Department of Commerce, Bureau of Census. 38 C.F.R. § 4.16(a); Faust v. West, 13 Vet. App. 342 (2000). As such, the Veteran maintained substantially gainful employment during that time. TDIU is presently assigned from April 1, 2017, which is the day after the Veteran's last day of employment. Although the Veteran met the schedular criteria for TDIU based on her 70 percent disability rating for PTSD prior to that time, the Veteran was not eligible for TDIU because the record does not show that she was unable to secure or follow substantially gainful employment. Thus, the presently assigned date is the earliest possible date that TDIU may be granted. As the preponderance of evidence goes against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b). The claim for an earlier effective date for TDIU is denied. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.