Citation Nr: 21072891 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-04 579 DATE: December 6, 2021 ORDER From November 2, 2012, to April 7, 2014, entitlement to a total disability rating based on individual unemployability is granted. FINDING OF FACT From November 2, 2012, to April 7, 2014, the Veteran's service-connected mitral valve disease/stenosis rendered him unable to secure and maintain substantially gainful employment. CONCLUSION OF LAW From November 2, 2012, to April 7, 2014, the criteria for a total disability rating based on individual unemployability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1980 until his honorable discharge in 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 decision by the Newark, New Jersey, Regional Office of the United States Department of Veterans Affairs (VA). In a September 2018 decision, the Board remanded the case to the VA Regional Office for further development. The Board noted that the Veteran was in receipt of a combined disability rating of 100 percent from April 7, 2014. Nevertheless, the Board found that the record reasonably asserted entitlement to TDIU prior to April 7, 2014, on an extraschedular basis. As such, the Board directed the VA Regional Office to refer entitlement to TDIU to the Director of Compensation and Pension Services for an opinion on the matter. The VA Regional Office accomplished the directive. Prior to the return of the case to the Board, the Veteran died in 2020. The Board issued a decision in November 2021 dismissing the appeal because of the Veteran's death and lack of a proper substituted appellant. Subsequently, the VA Regional Office granted the Veteran's surviving spouse right of substitution; thus, the appellant is the Veteran's surviving spouse. Consequently, the Board has reactivated the appeal for adjudication. 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 Extraschedular Basis The Veteran filed a claim for TDIU in February 2014, which the VA Reginal Office denied in a July 2014 decision. Although the Veteran did not appeal that decision, TDIU is not a separate claim for benefits but rather "is merely an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule." Norris v. West, 12 Vet. App. 413, 42021 (1999). When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is "part and parcel" of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 45355 (2009). Consequently, a separate formal claim for TDIU is unnecessary in the context of an appeal from a rating decision. Id. at 454; Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating). Because the Veteran challenged the May 2013 decision as to his assigned disability rating(s) for his then-service-connected mitral valve disease/stenosis upon which he based his assertion of unemployability, the determination of whether the Veteran was entitled to TDIU is part and parcel of the determination of that rating. Rice, 22 Vet. App. 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. TDIU may be awarded on a schedular basis under 38 C.F.R. § 4.16(a) or an extraschedular basis under 38 C.F.R. § 4.16(b). When a "rating board" determines that a veteran may be 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. 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). Prior to April 7, 2014, the Veteran's service-connected disabilities and associated ratings included the following: Mitral valve disease/stenosis 30% from January 4, 2011 Pseudofolliculitis barbae 30% from January 4, 2011 Left cerebral infarction associated with mitral valve disease/stenosis 10% from January 4, 2011 Fracture distal fifth metacarpal 0% from January 4, 2011 His total combined disability rating prior to April 7, 2014, was 60 percent. The Veteran's did not meet either of the schedular requirements for TDIU prior to April 7, 2014, those being either (1) a disability rated at 60 percent or more, or (2) if there are two or more disabilities, then at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran's claim for TDIU has already been referred to the Director for an opinion, which is of record. Now, the question is whether the Veteran would have been entitled to TDIU on an extraschedular basis prior to April 7, 2014. "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, 31 Vet. App. at 73. 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 Although the Board is required to obtain the Director's decision before it may award extraschedular TDIU under section 4.16(b), the Board is not bound by the Director's decision. Wages, 27 Vet. App. at 236. The Director's decision itself, whether favorable or unfavorable to the Veteran, is not evidence; rather, it is a de facto decision by the agency of original jurisdiction, and the Board must conduct a de novo review of the decision. Wages, 27 Vet. App. at 23839; Kuppamala v. McDonald, 27 Vet. App. 447, 45657 (2015). Likewise, the Board's decision to refer a TDIU claim for extraschedular consideration does not bind the Board when it later decides whether to award an extraschedular TDIU. Ray, 31 Vet. App. at 66. The Board is nonetheless mindful that an extraschedular rating is only assigned in "exceptional" cases "where the schedular evaluation is inadequate[.]" 38 C.F.R. § 3.321(b)(1). Bearing in mind the benefit-of-the-doubt standard, 38 U.S.C. § 5107(b), the Board now turns to whether to award TDIU based on the Veteran's service-connected disabilities prior to April 7, 2014. The Board finds the relevant lay and medical evidence weighs in favor of finding that the Veteran was unable to secure and follow a substantially gainful occupation from November 2, 2012, to April 7, 2014. Noneconomic component In his February 2014, application for TDIU, the Veteran reported that he last worked full-time on October 27, 2012, and that he became too disabled to work on November 2, 2012. He reported obtaining a high school education with no further education or skills training. His only reported occupation was as a bus driver for approximately 30 years until he became too disabled to work. He submitted a medical evaluation from a private physician. The physician stated that the Veteran had been unable to work due to his mitral valve disease since November 2012, and that he needed surgery in relation to his disability. He was hospitalized in February and April 2013 for his mitral valve disease. A February 2013 VA examiner opined that the Veteran's mitral valve disease impacted his ability to work to the extent he was unable to perform sustained physically demanding work, and he was unable to drive a commercial vehicle (i.e., a bus) due to his coumadin therapy associated with his disability. The appellant submitted a letter in February 2013, stating that she had observed the Veteran's inability to function and work. She said that as of February 2013, he could not walk more than ten feet without gasping for air. He was unable to put on his own socks as it placed pressure on his airway. He had trouble climbing stairs without losing his breath. After his hospitalizations, he was told, among other things, to do minimal activity and take naps when he felt tired. See February 2013 Nursing Telephone Encounter Note. In February 2014, a clinical social worker documented that in the preceding year, the Veteran experienced a marked decrease in his quality of life including an inability to drive or work. Based on the available lay and medical evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that his mitral valve disease was a major contributing factor in his unemployability. As a bus driver, his physical health was of utmost concern because he was responsible for the lives of those on his bus and those in the public. His medical condition clearly deteriorated from 2012 to 2014, to the point that he was unable to do daily activities with average ease without losing his breath. The evidence does not demonstrate he had education or skills that qualified him for positions of labor that involved clerical or desk jobs, such that he might be afforded a work environment with minimal stress or activity (i.e., sedentary employment). Moreover, there is a lack of evidence that his mitral valve disease was a disability that could be reasonably accommodated under the ADA. For example, his inability to bend over, inability to walk more than a few feet, and inability or climb stairs without losing his breath, or his general need for rest periods are symptoms that, when taken in aggregate, are not easy to accommodate on a routine basis given the Veteran's education and skill level. Therefore, the Board finds the noneconomic component weighs in the Veteran's favor. Economic component The poverty threshold for one person, under the age of 65 in 2014 was $12,316.00. The poverty thresholds prior to 2014 were all lower. 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. 22, 2021). The Veteran indicated that prior to his inability to work, he made $2,080.00 per month, which equates to $24,960.00 per year. Although this generally indicates that he had the ability to earn more that the poverty threshold prior to 2014, he did not have any income from employment after November 2, 2012. The Board finds his mitral valve disease, which progressed in severity between 2012 and 2014, prevented him from earing above the poverty threshold during that period. Therefore, the Board finds the economic component weighs in the Veteran's favor. Conclusion As both the noneconomic and economic components favor an award of TDIU, the Board finds that from November 2, 2012 (the date the Veteran indicated he became too disabled to work) to April 7, 2014 (the date he became 100 percent service connected), the Veteran was unable to secure and maintain substantially gainful employment due to his service-connected mitral valve disease. Accordingly, an award of TDIU benefits is granted on an extraschedular basis from November 2, 2012, to April 7, 2014. 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.