Citation Nr: 21007338 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-18 510A DATE: February 9, 2021 ORDER Entitlement to an effective date of August 1, 2014, but no earlier, for the grant of a total disability individual unemployability (TDIU) is granted. FINDING OF FACT Beginning on August 1, 2014, the Veteran’s service-connected right ankle condition and varicose veins precluded him from securing or following a substantially gainful occupation, and any subsequent employment was marginal. CONCLUSION OF LAW Beginning on August 1, 2014, but no earlier, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1984 to June 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for degenerative arthritis, right ankle, and assigned a 10 percent rating effective October 6, 2010, the date of the claim. The Veteran timely disagreed with the initial rating assigned. In the Veteran’s July 2013 substantive appeal, he requested a Board hearing before a Veterans Law Judge. In March 2017, the Veteran withdrew his hearing request. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). In June 2017, the issue of entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis, right ankle was remanded by the Board for further development. In December 2017, the Decision Review Officer (DRO) increased the assigned rating for the Veteran’s degenerative arthritis, right ankle to 20 percent, effective August 28, 2017. In February 2018, the Board, inter alia, granted the Veteran a 20 percent rating for his degenerative arthritis, right ankle, but no more, prior to August 28, 2017 and found that a rating in excess of 20 percent was not warranted for any time on appeal because that was the maximum rating under the applicable Diagnostic Code. Since the Veteran is receiving the maximum schedular rating applicable to his degenerative arthritis, right ankle for the entire period on appeal, this issue is no longer before the Board. During the pendency of the appeal for an initial higher rating for the right ankle disability, the Veteran filed a formal TDIU application indicating that he has been unemployed since July 31, 2014, due to his service-connected right ankle disability. See Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated April 2015. In a September 2015 rating decision, the RO granted entitlement to TDIU on an extraschedular basis, effective April 6, 2015. However, the issue of entitlement to a TDIU is raised as part and parcel of any initial rating claim when the Veteran seeks the highest rating available and there is evidence of unemployability due to the disability for which a higher initial rating is being sought. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, since the appeal period for the claim for a higher initial rating for the right ankle disability began on October 6, 2010, the issue of entitlement to TDIU prior to April 6, 2015 remains before the Board. In February 2018 and April 2019, the Board remanded the issue of entitlement to a TDIU prior to April 6, 2015 for further development. In September 2020, the Director of VA’s Compensation and Pension Service issued an advisory opinion for consideration of entitlement to a TDIU prior to April 6, 2015 on an extraschedular basis under 38 C.F.R. § 4.16(b). In November 2020, the RO promptly issued a supplemental statement of the case (SSOC) continuing to deny the Veteran’s TDIU claim prior to April 6, 2015. As the actions specified in the February 2018 and April 2019 remands have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to a TDIU prior to April 6, 2015 The record shows that the Veteran left his job as a machinist on July 31, 2014. At that time, he had a combined rating of 30 percent for degenerative arthritis of the right ankle and varicose veins in both legs. Although the Veteran does not meet the schedular criteria for a TDIU at any time during the appeal, he has asserted that he is unemployable due solely from his service-connected right ankle and varicose vein conditions. To the extent outlined below, the Board agrees. The Board acknowledges that the Veteran was assigned multiple periods of temporary total ratings based on right ankle surgery necessitating convalescence pursuant to 38 C.F.R. § 4.30. The first period was effective from August 29, 2013 to December 1, 2013. See March 2014 rating decision. The second period was effective from August 29, 2014 to December 1, 2014. See October 2014 rating decision. The third period was effective from July 6, 2015 to October 1, 2015. See September 2015 rating decision. These periods would have clearing caused problems in the Veteran working. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16. In reaching that determination, 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 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be 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). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. Furthermore the Board notes that marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016); Cantrell v. Shulkin, 28 Vet. App. 382 (2017). Initially, the Board notes that a September 2015 rating decision assigned an effective date for the grant of TDIU of April 6, 2015, which was the date of the VA examination that found the Veteran could no longer perform manual labor as a machinist due to his leg disabilities. The Veteran’s employer confirmed that he worked as a machinist from February 2002 until July 2014. The Veteran’s highest level of education is a high school diploma. Statements from his former employer support that the Veteran stopped working in July 2014 because he was experiencing increasing symptomatology to the extent that he was unable to stand for extended periods of time, which was beginning to interfere with his ability to perform many of his job functions. The employer also noted that the Veteran’s medical condition resulted in extended leave and surgery such that he would no longer be eligible for Family and Medical Leave Act (FMLA) job protection coverage at that time if he continued to miss time from work due to his service-connected disabilities. After leaving his job as a machinist, the Veteran obtained part-time employment with a company run by a family member, which allowed the Veteran to miss as much time from work as needed due to pain, doctor appointments, surgery and convalescence, in order to remain employed. The family member reported that the Veteran was unable to carry cases of paper at work because of ankle pain and instability and that he frequently needed to grab the wall to take weight off of his ankle. Furthermore, the family member noted that the pain and/or medication the Veteran was taking at that time interfered with his cognitive abilities such that it took the Veteran longer to do the job when compared to other employees in that same or similar position. The Board finds that this employment is considered marginal employment in a protected environment. Importantly, nothing in the record contradicts the finding that the Veteran left his long-time employment as a machinist in July 2014 or that he required considerable occupational concessions due to his service-connected disabilities in order to maintain substantially gainful employment between August 1, 2014 and April 6, 2015. On the contrary, statements from the Veteran, his family members and his former employer, corroborated by medical evidence, describe the physical drain that a full-time manual labor position caused the Veteran during this time period. The Board acknowledges the September 2020 advisory opinion of the Director of VA’s Compensation and Pension Service that recommended the Veteran could obtain substantially gainful employment in the current job market despite his service-connected disabilities. However, based on a review of medical and lay evidence presented in this case, and in light of the Veteran’s education, training, and work history, the evidence is at least in equipoise as to whether his service-connected disabilities prevented him from working in substantially gainful employment for the period beginning on August 1, 2014. The Board notes that prior to August 1, 2014, the Veteran’s employment was not considered “marginal” based on the record, nor is there a basis for extraschedular consideration that the Board can find based on a detailed review of this record. While the Veteran’s service-connected disabilities clearly were a problem for him prior to August 1, 2014, it cannot be said that he was unemployable prior to this time, based on this record. As the Veteran has held only marginal employment during the period described above, entitlement to TDIU is granted from August 1, 2014, but not earlier. 38 U.S.C. §§ 1155, 5107(b). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.