Citation Nr: 21005767 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-02 228 DATE: February 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from March 5, 2012, to March 27, 2012, is granted. REMANDED Entitlement to TDIU from June 20, 2006, to March 4, 2012 and March 28, 2012, to February 10, 2019, is remanded. FINDING OF FACT The Veteran meets the schedular percentage requirements for TDIU from March 5, 2012, to March 27, 2012, and his service-connected disabilities have prevented him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for entitlement to TDIU from March 5, 2012, to March 27, 2012, 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 with the United States Marine Corps from August 1967 to August 1970, from April 1976 to April 1978, and from January 1980 to June 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in September 2014. The Board remanded this matter in June 2017 and October 2019 for additional development. The matter is now returned to the Board for further appellate review. The Veteran received a letter indicating that he could request a virtual hearing instead of waiting for a travel board hearing. Upon further review, the Veteran did not have a pending hearing request. The Veteran provided testimony in a hearing with the undersigned on October 29, 2014. The Board has considered the transcript of that hearing as evidence in making its decision. In June 2017, the Board inferred from the Veteran’s claim for an increased rating for his service-connected coronary artery disease (CAD) entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Accordingly, the Board finds the period on appeal for entitlement to TDIU begins June 20, 2006, which coincides with the period on appeal for the Veteran’s claim for an increased rating for CAD. Id. Entitlement to TDIU from March 5, 2012, to March 27, 2012 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). From March 5, 2012 to March 27, 2012 the Veteran has service-connected disabilities of diabetes mellitus (DM), rated at 20%; coronary artery disease (CAD), rated at 60%; and peripheral neuropathy, rated at 10%. The Veteran’s combined total disability rating for this period is 80%. The Veteran, therefore, satisfies the percentage requirements for a schedular TDIU for this time period. The record establishes the Veteran's service-connected disabilities have prevented him from engaging in substantially gainful employment for which his education and occupational history would otherwise qualify him. The Board notes the Social Security Administration (SSA) granted the Veteran entitlement to disability benefits, effective August 21, 2009, based in part on the occupational impairment resulting from his service-connected diabetes mellitus. While not dispositive on the issue of TDIU, the SSA grant of disability compensation constitutes highly probative evidence regarding the Veteran's TDIU claim. See Collier v. Derwinski, 1 Vet. App. 413 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). The merits of awarding TDIU are even more clear when viewed in the context of the Veteran's individual work history. The Veteran submitted VA Form 21-8940, an Application for Increased Compensation Based on Unemployability, in January 2018. He has completed high school but no college. The Veteran reported no other education or training. The Veteran last worked as a truck driver from January 2003 to June 2009, which he medically retired from because his insulin dependency precluded him from maintaining a commercial driver’s license. Moreover, the Veteran’s other previous work history includes a maintenance worker at a medical center and a service technician for mobile homes, which include performance of physical activities. The Veteran’s medical records indicate he experiences numbness and tingling in both lower extremities, shortness of breath, and fatigue because of his applicable service-connected disabilities. Moreover, the evidence reflects the Veteran is unable to stand or walk for long periods of time, unable to lift heavy objects, and unable to engage in manual labor because of shortness of breath and fatigue. Therefore, the Veteran cannot engage in work that requires physical activity. The Board cannot deny TDIU without producing evidence, as distinguished from mere conjecture, showing the claimant can perform work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). There is no such evidence in this case. To the contrary, the record establishes the nature and severity of the Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment for which his education and occupational history would otherwise qualify him and the record reflects that he does not have the education, training, nor experience to engage in sedentary employment. As a result, the criteria for an award of TDIU have been met in the Veteran's case for the period from March 5, 2012 to March 27, 2012. REASONS FOR REMAND Entitlement to TDIU from June 20, 2006, to March 4, 2012 and March 28, 2012, to February 10, 2019, is remanded. The schedular criteria for TDIU require one service-connected disability rated at 60 percent disabling, or more than one service-connected disability combining to more than a 70 percent evaluation, with one rated at least 40 percent. 38 C.F.R. § 4.16 (a). The Veteran's combined evaluation for his service-connected disabilities from June 20, 2006 to March 4, 2012 was never higher than 60% and his evaluations from March 28, 2012 to February 10, 2019 did not include a single disability rated at 40%. He therefore does not meet the schedular criteria for a TDIU from June 20, 2006 to March 4, 2012 nor March 28, 2012 to February 10, 2019. TDIU can be awarded on an extraschedular basis under 38 C.F.R. § 4.16 (b) if it is determined that the Veteran is unemployable by reason of service-connected disabilities but fails to meet the percentage standards set forth above. However, the Board cannot consider such entitlement in the first instance. Instead, the claim must be remanded so that it can be referred to VA's Director, Compensation Service, for initial consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the evidence suggests the Veteran may be precluded from substantially gainful employment because of his service-connected disabilities for the period from June 20, 2006 to March 4, 2012 and from March 28, 2012 to February 10, 2019. As the Veteran does not meet the schedular criteria for a TDIU for these time periods, this matter must be remanded for referral to VA’s Director, Compensation service, for initial consideration. The matter is REMANDED for the following action: Refer the claim to VA's Director of Compensation for consideration of whether a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16 (b) is warranted for the period from June 20, 2006, to March 4, 2012 and from March 28, 2012, to February 10, 2019. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.