Citation Nr: 21005911 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-08 156 DATE: February 2, 2021 ORDER For the period prior to January 4, 2020, a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a TDIU on an extraschedular basis, for the period prior to February 12, 2014, is remanded. FINDING OF FACT The Veteran was employed in a “protected environment” prior to January 4, 2020, and his service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment prior to January 4, 2020. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to January 4, 2020 are met. 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to February 1989. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This matter was previously before the Board, most recently in July 2020. At that time, the Board granted service connection for a bilateral hip disability and remanded the TDIU claim as inextricably intertwined with Agency of Original Jurisdiction’s (AOJ) task of assigning disability ratings. Following remand, the AOJ granted the claim for a TDIU, effective January 4, 2020. The Board finds that there has been substantial compliance with the remand directives. As the grant of the TDIU was not for the entire period on appeal, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). TDIU for the period prior to January 4, 2020 In October 2020, the RO granted entitlement to a TDIU, effective January 4, 2020, the date the Veteran last worked full-time. The Veteran contends that he should be granted a TDIU from April 16, 2009, including on an extraschedular basis. According to the Veteran, his employment from December 2017 to January 2020 was in a protected environment. The record reflects that the Veteran’s claim for a TDIU has been pending since receipt of his VA Form 21-8940 on July 20, 2009. In order to be entitled to a TDIU prior to January 4, 2020, the evidence must show that the Veteran was incapable “of performing the physical and mental acts required” to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment may be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. The Board recognizes that “protected environment” has not been expressly defined by regulation. Merriam-Webster’s Collegiate Dictionary offers several definitions of the word “protect,” but one that appears to be applicable in this inquiry is “to save from contingent financial loss.” See Merriam-Webster’s Collegiate Dictionary (online). “Contingent” can mean “likely but not certain to happen: possible.” Id. Thus, within the context of awarding a TDIU, a protected work environment exists when one’s employment is not based on merit alone, but rather is established to save the individual from likely financial loss. In other words, a protected environment is an employment environment that would not exist, but for the willingness of the employer to hire and pay the employee for altruistic reasons. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Here, the Veteran qualifies for a schedular TDIU as of February 12, 2014 based on bilateral hip disabilities, a back disability, left foot disability and depression. The record reflects that the Veteran is a high school graduate and took some college classes. The Veteran worked as a welder in 2008 and in property maintenance until 2009. The Veteran’s earnings history reflects the lack of any income from 2009 to December 2017, when he was hired to perform property maintenance at an apartment complex. The Veteran worked in that position until January 2020. The Veteran related that he worked 23 hours per week when he started in 2017 and that he was working 10 hours per week by the end of his employment. The Veteran also stated that he had a 10-pound weight restriction, could not push, pull or lift and was allowed to take extra breaks by his employer. The Veteran also submitted a letter from his former manager, who stated that she was aware the Veteran was a disabled Veteran when he was hired and that he was provided accommodations to perform the job. The accommodations included giving him help with physical tasks, letting him work a flexible schedule, letting him lay down during work hours and being able to take breaks whenever he needed them. The Veteran submitted an April 2020 private medical opinion addressing his employability. Based on a review of the record and interview of the Veteran. the private physician opined that the Veteran’s ability to stand, walk, sit and/or stoop during an 8-hour workday would be limited to less than 2 hours, that he would require early departures and extra breaks and that he would not stay focused for at least 7 hours of an 8 hour workday. The private physician opined that the Veteran was unable to maintain substantial gainful employment since at least April 16, 2009. A July 2019 VA individual unemployability statement noted that the Veteran was at least as likely as not limited to light work as a result of his service-connected conditions. The Veteran also submitted a private assessment conducted in September 2016. The private evaluator also reviewed the relevant records and interviewed the Veteran. The evaluator concluded that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder. A September 2016 residual functional capacity evaluation noted that the Veteran would miss 3 or more days per month due to mental problems, would not stay focused for 7 of 8 hours and would respond in anger more than once per month. Considering the nature of the Veteran’s employment from December 2017 to January 2020, the Board finds that the Veteran was working in a “protected environment.” The lay evidence from the Veteran and his supervisor establishes that the Veteran would not have been able to keep his position without the accommodations and lenience afforded the Veteran due to his service-connected disabilities. The competent medical and lay evidence of record establishes that the Veteran’s service-connected disabilities precluded him from obtaining and retaining substantially gainful employment prior to January 4, 2020. The Board finds the opinions of the private physician and evaluator are entitled to probative weight as they are based on a review of the relevant records and interviews of the Veteran, and are supported by adequate rationales. The Veteran’s normal occupation requires strenuous physical activity, and the private evaluations reflect that he was limited in his ability to stand, walk, sit and/or stoop, as well as maintain focus required for work. As such, the private evaluations, as well as the lay statements submitted by the Veteran and his supervisor, reflect that the impairments caused by the Veteran’s service-connected disabilities precluded him from performing any type of gainful employment, warranting a TDIU for the period prior to January 4, 2020, effective February 12, 2014. REASONS FOR REMAND Entitlement to a TDIU on an extraschedular basis prior to February 12, 2014 The Veteran does not have a disability rating of 60 percent or more or a combined disability rating of 70 percent with at least one disability rating at 40 percent or more prior to February 12, 2014. Although the Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU, “[i]t is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” 38 C.F.R. § 4.16(b). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. Where this is warranted, the claim must first be referred by AOJ to the Director of the Compensation Service for extraschedular consideration. Here, the record reflects that the Veteran last worked in a non-protected work environment in January 2009. Prior to that time, the Veteran had been employed in construction and as a welder. In an April 2009 statement, the Veteran reported that he had difficulty getting and keeping jobs because his foot disability resulted in swelling that prevented him from standing. The Veteran reported to a July 2009 VA examiner that he could not work as a welder due in part to his foot pain. The Veteran also submitted an evaluation by a private physician who concluded that the Veteran had been unable to maintain substantial gainful employment since April 2009. Based on the foregoing, the Board concludes that a remand is necessary for the RO to refer the claim to the Director of Compensation Services for extraschedular consideration. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU prior to February 12, 2014 to the Director of the Compensation Service for extraschedular consideration. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.