Citation Nr: 21006713 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 11-02 390 DATE: February 5, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted from January 1, 2011 but no earlier. FINDINGS OF FACT 1. In a December 2020 decision, the Director of Compensation Service denied entitlement to a TDIU prior to May 1, 2013 on an extraschedular basis. 2. Resolving all reasonable doubt in the Veteran's favor, his last date of substantially gainful employment was January 1, 2011. 3. Prior to January 1, 2011 the Veteran's income exceeded the poverty threshold and he was able to obtain and maintain substantially gainful employment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU since January 1, 2011 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1982 to May 1983 and from January 2006 to July 2006. The Veteran also had service in the Naval Reserves from 1991 to 2006. In August 2019, the Board partly granted TDIU (on a schedular basis) effective May 1, 2013. In that same decision, the Board partly remanded the TDIU claim to the Director of Compensation Service for adjudication in the first instance, as to whether TDIU is warranted prior to May 1, 2013 on an extra-schedular basis. In a December 2020 Memorandum, the Director, Compensation Service, denied the Veteran's claim of entitlement to extraschedular TDIU benefits. The appeal has been returned to the Board for appellate review. The Board acknowledges that in October 2020 the Veteran's attorney submitted a VA Form 20-0996, "Decision Request: Higher Level Review" requesting higher level review for the TDIU claim. The Board notes, however, that there is no mechanism for higher level review for a Supplemental Statement of the Case (SSOC) for issues already in appellate status before the Board, as opposed to issues prior to certification to the Board following rating decision or Statement of the Case (SOC). Entitlement to a total disability evaluation based on individual unemployability (TDIU) effective January 1, 2011 The Veteran through his attorney has argued that he is entitled to TDIU as of September 2008. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by VA's Director of Compensation Service when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to VA's Director of Compensation Service is so warranted for extra-schedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board has done so, the Director has denied TDIU, and the issue may therefore now be adjudicated by the Board. In doing so, the Board conducts de novo review and must consider the Director's decision to be "in essence the de facto decision of the agency of original jurisdiction" and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). The central inquiry is, "whether the veteran's service-connected disability is of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. "A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment." Id. The ultimate question, however, is "whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component 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. The non-economic component includes consideration of the following: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran's July 25, 2014 and August 22, 2015, VA Form 21-8940 applications for TDIU indicate that the Veteran completed 2 years of college education. The Veteran has stated that he is unable to work due to his service-connected knees, back and heart disabilities. He reported that he became too disabled to work on January 1, 2011 and has previously worked as a sales agent for a major airline. Prior to May 1, 2013 the Veteran was in receipt of a 70 percent combined disability rating with a 30 percent disability rating for cardiomyopathy, a 20 percent disability rating for T11 compression fracture, a noncompensable disability rating for hypertension and a 20 percent disability rating for right knee DJD. From March 8, 2012, the Veteran was in receipt of a temporary totally disability rating following his total right knee replacement. Thus, as previously discussed, the Veteran does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16 (a). In a June 2009 VA Mental Disorders examination, the Veteran reported that he last work as a technical recruiter in September 2008, with Oxford International where he worked for nine months and was fired because of his PTSD. See June 2009 VA Examination. VA treatment record shows that the Veteran reported that his disabilities affected his work productivity. See June 2011 Medical Treatment Record - Government Facility The March 2013 VA examiner noted that the Veteran’s knee and/or lower leg condition impacted his ability to work. The examiner found that the Veteran was able to walk 10 to 15 minutes at one time, walk for one hour during an eight-hour day, stand for 30 minutes and sit for one hour at a time, and stand for four hours and sit for four hours during an eight-hour day. See March 2013 VA Examination. The Veteran was afforded a VA heart condition examination in March 2013. During the examination, the Veteran described his service connected hypertension as controlled. It was found that the Veteran experienced dyspnea during activities such as eating, dressing, taking a shower, or slow walking for one to two blocks. The examiner found that the Veteran’s bilateral knee DJD contributed 60 percent to his METs level. It was determined that the Veteran’s heart condition impacted his ability to work, because he experienced occasional chest pain, shortness of breath, and dizziness that was related to his heart disease and prevented him from overexertion. See March 2013 VA Examination. A May 2013 VA heart condition examination found that the Veteran’s service connected heart condition did not impact his ability to work. He also was not taking any medications for his service connected heart condition. See May 2013 VA Examination. An employability evaluation was completed by R. B., MS, CRC, in October 2017. The rehabilitation counselor opined that it is more likely than not that the Veteran has been unable to secure and follow substantial gainful employment since 2008, when he resigned from work with Oxford International and that the Veteran’s stint at delta airlines proved to be unsuccessful work attempt. See October 2017 Medical Treatment Record - Non-Government Facility. In an August 2017 affidavit, the Veteran maintained that he has not worked in any capacity since he left his position at the Delta Airlines in 2011 and that his service connected disabilities affected his ability to get to work and to complete his tasks effectively. See August 2017 Affidavit. The above evidence of record reflects that the Veteran's service-connected disabilities rendered him unemployable from January 1, 2011. The evidence indicates the Veteran's combined service connected disabilities precluded him from being able to meet the physical and mental demands necessary to perform the duties required of a person with his education and experience. However, prior to January 1, 2011 TDIU is not warranted. The Veteran was employed at his position with Delta Airlines for at least six months. Moreover, his monthly income of $1,920 for those six months exceeded the poverty threshold for annual income for 2010, which was $11,520 for an individual under age 65. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Therefore, this employment cannot be considered marginal employment. The Veteran has argued, through his attorney, that even if he was employed at that time, he was unable to maintain such a position because of his service-connected disabilities. In support of this argument, the attorney has pointed to the August 2017 employment evaluation, which noted that since 2008, the Veteran had been unable to maintain stable employment due to his service-connected disabilities. Nevertheless, even if the Veteran had difficulty at any of his jobs because of his service-connected disabilities, at Delta Airlines, he was employed full time (missing work only for a week) within the six months period and in those six months he earned income that exceeded the amount considered to be substantially gainful for the entire 12-month period. Thus, the Board is unable to find that the Veteran was unable to obtain and maintain substantially gainful employment due solely to service-connected disabilities during the period prior to January 1, 2011. The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Reviewing the totality of the evidence, however, including the Veteran's medical findings detailing the severity of his service-connected disabilities, the competent and credible lay assertions of unemployability due to limitations caused by the service-connected disabilities, and the cumulative objective evidence of record, the Board finds that the Veteran's service-connected disabilities, coupled with his educational/training background and employment history, precluded him from securing and following any substantially gainful employment from January 1, 2011. Accordingly, resolving all doubt in the Veteran's favor, the Board finds that entitlement to TDIU is warranted from January 1, 2011 but no earlier. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.