Citation Nr: 21071488 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-30 948 DATE: November 30, 2021 ORDER From July 18, 2017, a total disability rating based on individual unemployability due to service-connected disability is granted. REMANDED From May 15, 2017, to July 18, 2017, entitlement to a total disability rating based on individual unemployability due to service-connected disability is remanded. FINDING OF FACT From July 18, 2017, the Veteran was unable to secure and follow substantially gainful employment by reason of service-connected disabilities. CONCLUSION OF LAW From July 18, 2017, the criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disability are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1966 until his honorable discharge in April 1969. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a July 2018 decision by a Regional Office of the United States Department of Veterans Affairs (VA). Within that decision, the VA Regional Office denied an increased disability rating for service-connected posttraumatic stress disorder (PTSD). In his August 2018 Notice of Disagreement, the Veteran raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) as part and parcel of his increased-rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In an April 2020 decision, the Board, in relevant part, denied the Veteran's claim for TDIU. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Partial Remand submitted by the parties, the Court entered an order in May 2021 vacating the Board's decision in full as to its denial of entitlement to TDIU and remanding the matter to the Board for readjudication. Evidentiary Standards The personalized nature of TDIU determinations is evident from the title of 38 C.F.R. § 4.16: "Total disability ratings for compensation based on unemployability of the individual." (Emphasis added). In deciding TDIU claims, it is the Board's responsibility to evaluate the entire record on appeal, giving due consideration to all pertinent medical and lay evidence. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. TDIU A request for total disability evaluation based on individual unemployability (TDIU) is "part and parcel" of a claim for an increased disability rating and is not a separate freestanding claim itself but rather an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule. Rice, 22 Vet. App. 45355 (holding TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating). In this case, the Veteran sought an increased disability rating for his service-connected PTSD and presented evidence of unemployability. Therefore, whether the Veteran is entitled to an award of TDIU is properly considered part of his then- claim. See id. at 45455. For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. For a veteran who does not qualify for a schedular 100 percent disability rating, according to 38 C.F.R. § 4.16(a), a veteran is entitled to TDIU if the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disabilities, and: 1. The veteran has one service-connected disability rated at 60 percent or more; or 2. The veteran has two or more service-connected disabilities, at least one of which is rated at 40 percent or more, and the combined rating of all service-connected disabilities is 70 percent or more. See also 38 C.F.R. § 4.25 (combined ratings table). If the veteran meets the foregoing schedular criteria, then the Board will inquire whether the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disability(-ies). 38 C.F.R. § 4.16(a). "Substantially gainful employment" includes two components: a noneconomic component and economic component. The noneconomic component considers whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray v. Wilkie, 31 Vet. App. 58 73 (2019). When determining whether a veteran can "secure and follow substantially gainful employment," the Board, as appropriate, should consider: 1. The veteran's history, education, skill, and training; 2. Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (i.e., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3. Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. (citations omitted). The Board is precluded from considering the Veteran's age, previous unemployability status, and impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.17, 4.19; see Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). The economic component considers the Veteran's ability to earn more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray, 38 Vet. App. at 72; 38 C.F.R. § 4.16(a). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016). "[A] veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his [or her] particular case." Ortiz-Valles, 28 Vet. App. at 71 (emphasis added). Marginal employment on a facts-found basis includes, but is not limited to, employment in a protected environment, such as a family business or sheltered workshop, even when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). "Protected environment" is not defined by statutes or VA regulations, but the Board finds that it generally means a work environment in which the employer makes special and significant accommodations beyond those reasonably required by law and that are reasonably necessary to accommodate the veteran. In this respect, the Board is mindful of the Americans with Disabilities Act (ADA), especially its mandate that employers provide reasonable accommodations for individuals with disabilities such as "job restructuring, part-time or modified work schedules, . . . [and] acquisition or modification of equipment or devices." 42 U.S.C. § 12111(9)(B). Where a veteran's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the veteran to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer. In short, 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, and that the noneconomic component requires the Board to fully explain why it concluded a veteran was capable of such employment. Ray, 31 Vet. App. at 73. The ultimate issue of whether TDIU should be awarded is not a medical issue; rather, it is a determination for the adjudicator based on all individualized facts and circumstances. Id. at 72, 7576. Analysis Schedule Criteria As of July 18, 2017, the Veteran was service connected for the following disabilities with the associated ratings: PTSD 50% Obstructive Sleep Apnea 50% Tinnitus 10% Hypertension 0% Bilateral hearing loss 0% Even though the Veteran did not have a service-connected disability rated as 60 percent disabling, the total combined rating of his disabilities as of July 18, 2017, was 80 percent, and he had at least one disability rated as 40 percent disabling. Therefore, he met the schedular criteria for TDIU as of that date. Substantially Gainful Employment Non-economic component Following remand from the Court, the Veteran submitted a private vocational opinion from J.C., a vocational expert whose qualifications include a Bachelor of Arts, being a member of the American Board of Disability Analysts, having worked in the field of Industrial Rehabilitation for over 30 years, to include performing employer on-site ergonomic evaluations/job analyses, labor market surveys, and offering vocational opinion for legal professionals and the Social Security Administration. She has served as vocational expert in thousands of Social Security Disability hearings. J.C. noted that the Veteran had three-and-half years of high school education and received his G.E.D. following his military service. He attended some college courses but did not receive a degree. He participated in job specific training and certification programs related to his occupational positions over the years. His last training was in 1992. His past work history was extensively documented by J.C. and included serving as a manager in the restaurant business, working as a baker, and more recently building maintenance from 1975 to 2005. In 2005 he experienced an increase in his service-connected disabilities. His sleep apnea and PTSD became severe. Thus, 2005 was the last time he worked full-time. He returned to the workforce from 2014 to 2016 on a part-time basis. Unfortunately, his service-connected disabilities made him leave his positions. J.C. provided a recitation of all of the Veteran's work history and documented the occupational tasks associated with his positions. J.C. then offered a recitation of the relevant VA medical examinations the Veteran received, his medical records, and the lay statements offered by the Veteran and his ex-wife. J.C. identified relevant symptoms associated with the Veteran's service-connected disabilities that affected his occupational functioning. It is sufficient to say that J.C.'s recitation was very thorough. Ultimately, J.C. opined that the symptoms associated with the Veteran's PTSD, sleep apnea, and tinnitus resulted "in the complete inability of [the Veteran] to perform at all physical or skill levels, even the sedentary, unskilled leveled of employment on a sustained basis." J.C. explained that his symptoms prevented him from returning to any of his past highly skilled occupations or using his transferable skills. Particularly, the Veteran's sleep apnea and PTSD symptoms were of utmost concern as they interfered with daily activities, to include sleep, excessive fatigue, and concentration, and interaction with others. J.C. identified relevant facts from the Veteran's VA' claims file, to include VA examiners' reports, medical records, and lay statements in support of her conclusion. She concluded, "[w]hen the effects of [the Veteran's] service-connected impairments are considered together along with the functional limitations that cause, the synergy of the symptoms creates a great impact on his ability to work than when their impairments and limitations are considered individually." The Board finds J.C.'s opinion and supporting rationale the most credible and probative evidence of record as it relates to the Veteran's ability to secure and maintain substantially gainful employment. The Board finds this component weighs in the Veteran's favor. Economic component The Veteran submitted documentation from the Social Security Administration showing that his earnings between 2014 and 2016, when he worked part-time, never rose above $7,319.00. And he had no income thereafter. The poverty threshold for one person, over the age of 65 in 2020 was $12,413.00, the most recently revised threshold. See United States Census Bureau, Poverty Thresholds, 2020, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed Nov. 15, 2021). The poverty thresholds prior to 2020 were less but never fellow below $7,319.00. The Board finds no evidence that the Veteran earned more than the poverty threshold between 2017 to the present. Moreover, the Board finds that the Veteran's service-connected disabilities would likely prevent him from earning more than the poverty threshold during the claim period for the reasons identified by J.C. Therefore, the Board finds this component weighs in the Veteran's favor. Conclusion The Veteran met the schedular requirements for TDIU as of July 18, 2017. The Board concludes that the evidence of record weighs in favor of finding that the Veteran is unable to secure and maintain substantially gainful employment because of his service-connected disabilities as of that date. Accordingly, TDIU is granted as of July 18, 2017. Effective Date The Board now turns to the date for which it has assigned the award of TDIU benefits. Where a claim for TDIU is made after an initial award of compensation for a service-connected disability, such that it is analogous to a claim for increased compensation, the general rule under 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400 is that the effective date shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. Dalton v. Nicholson, 21 Vet. App. 23, 3234 (2007) (applying the rules for increased-rating claims to claims for TDIU after initial compensation). 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." See also 38 C.F.R. § 3.400(o)(2). Thus, a veteran who is awarded TDIU based on an already service-connected condition, which later renders him or her unable to secure or follow substantially gainful employment, is entitled to consideration of whether an effective date should be awarded one year prior to the application for TDIU. 38 C.F.R. § 5110(b)(2); Dalton, 21 Vet. App. at 34. Here, the Veteran filed a claim for an increased disability rating for his PTSD on May 15, 2018, along with other claims for service connection. Thus, the Board is required to consider whether he is entitled to TDIU beginning May 15, 2017, one year prior to receipt of his claim for an increased disability rating for PTSD of which his claim for TDIU is part and parcel. As discussed above, the Board has found that as of July 18, 2017, the Veteran met the schedular requirements for TDIU. Prior to July 18, 2017, the schedular requirements were not met; the Veteran was only service connected for PTSD (50%) and Tinnitus (10%). Thus, he did not have one disability rated as 60 percent disabling and he did not have a combined disability rating of at least 70 percent. REASONS FOR REMAND Even though he did not meet the schedular requirements for TDIU prior to July 18, 2017, his private vocational opinion indicated that the Veteran was unable to secure and follow substantially gainful employment as early as 2010, at which time he was service connected for PTSD (September 3, 2010) and assigned a 50 percent disability rating. When a "rating board" determines that a veteran is unemployable due to his or her service-connected disabilities, but the veteran fails to meet the schedular rating criteria listed in 38 C.F.R. § 4.16(a), the rating board is required to refer the matter to the Director of Compensation and Pension Services (Director) for extraschedular consideration in the first instance. 38 C.F.R. § 4.16(b). The "rating board" includes the Board of Veterans' Appeals. Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (citation omitted). "[T]he initial extraschedular referral decision under [section] 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is [unable to secure and follow a substantially gainful occupation] by reason of his or her service-connected disabilities." Ray, 31 Vet. App. at 66; see Wages, Vet. App. at 236. Whether "the evidence nevertheless shows that a veteran is [unable to secure and follow a substantially gainful occupation] by reason of his or her service-connected disabilities" is the question to answer in the adjudication stage of assigning an extraschedular disability rating. Ray, 31 Vet. App. at 66. Here, the Board's analysis is limited to merely granting or denying the referral for TDIU on an extraschedular basis under section 4.16(b) based on a "reasonable possibility" analysis. Ray, 31 Vet. App. at 66; Anderson v. Shinseki, 22 Vet. App. 423, 42829 (2009). Once a referral for an extraschedular TDIU rating under section 4.16(b) is made by the Board, the Director then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, generally, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns from the Director. Bearing in mind the benefit-of-the-doubt standard, 38 U.S.C. § 5107(b), the Board the Board finds that the Veteran's TDIU claim for the period from May 15, 2017, to July 18, 2017, must be referred to the Director for extraschedular consideration based on the evidence of record, primarily the private vocational opinion that reasons the Veteran may have been unemployable as early as 2010 due to his PTSD. In addition, as part of the parties Joint Motion for Partial Remand at the Court, they stipulated the Board previously erred by not obtaining the Veteran's Social Security Administration records. On remand, these records must be sought. The Board notes that because it has granted TDIU as of July 18, 2017, any outstanding records have no bearing on the award of TDIU from that point forward because it is an award of full benefits. Therefore, there is no prejudice. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Attempt to obtain any outstanding records from the Social Security Administration and associate such record with the claims file. 3. After the foregoing directives are completed, refer the Veteran's claim for a total disability rating based on individual unemployability (TDIU) from May 15, 2017, to July 18, 2017, to the Director of Compensation and Pension Service (Director) for an opinion consistent with 38 C.F.R. § 4.16(b). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.