Citation Nr: 21007718 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-41 403 DATE: February 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) from March 14, 2017 to May 24, 2018, from November 25, 2018 to January 30, 2019, and from August 1, 2019 is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT The Veteran’s service-connected disability precludes all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) from March 14, 2017 to May 24, 2018, from November 25, 2018 to January 30, 2019, and from August 1, 2019 are met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to September 1964. In July 2020, the Board inferred a claim for entitlement to a TDIU as part of the claim for a higher initial disability rating for residuals of bladder cancer and remanded that claim for further development. Rice v. Shinseki, 22 Vet. App. 447 (2009). As TDIU is part and parcel of this claim, the appeal period begins the March 14, 2017 effective date of the grant of service connection for bladder cancer. While the Agency of Original Jurisdiction (AOJ) substantially complied with the Board’s July 2020 remand instructions, in November 2020, the Board remanded for referral the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) prior to May 24, 2018, from November 25, 2018 to January 30, 2019, and from August 1, 2019 to the Director of Compensation Service. Entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) from March 14, 2017 to May 24, 2018, from November 25, 2018 to January 30, 2019, and from August 1, 2019 In a May 2020 statement, the Veteran contended he was not able to be employed as a result of his bladder cancer residuals. VA will grant a TDIU when the evidence shows that a 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. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). 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 Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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: the 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. For purposes of entitlement to TDIU, marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16. Generally, marginal employment is deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Id. Marginal employment may be held to exist on a “facts found basis” even when earned annual income exceeds the poverty threshold. This includes, but is not limited to “employment in a protected environment such as a family business or sheltered workshop.” Id. A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). TDIU is warranted under 38 C.F.R. § 4.16(b) if it is established by the evidence of record that service-connected disabilities render the Veteran unable to secure and follow substantially gainful employment. Although the Board may not assign an extraschedular rating in the first instance, it may assign one on appeal of a determination by the Director of Compensation Service. The Veteran does not meet the criteria for TDIU pursuant to 38 C.F.R. § 4.16(a) in that he did not have a single disability rated 60 percent or higher or a combined disability rating of 70 percent or higher throughout the appeal period. Specifically, the Veteran is rated noncompensable for his bilateral hearing loss from September 19, 2016 and 20 percent for his bladder cancer residuals from March 14, 2017 to May 23, 2018, November 25, 2018 to January 30, 2019, and from August 1, 2019. Furthermore, the issue of entitlement to a TDIU is moot during the periods for which the Veteran is receiving 100 percent disability ratings for bladder cancer from May 24, 2018 to November 24, 2018 and January 31, 2019 to July 31, 2019. Although TDIU is not always moot when the Veteran is receiving a 100 percent disability rating, given that the Veteran is only in receipt of service connection for bilateral hearing loss and bladder cancer, TDIU could not assist him in obtaining SMC pursuant to 38 U.S.C. § 1114(s)(1), as there is no evidence of record or argument that he is entitled to TDIU based on hearing loss. Entitlement to TDIU is therefore moot for these periods. Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). Here, as discussed in the introduction, the case was forwarded to the Director of Compensation in response to the Board’s November 2020 remand. In December 2020, the Director concluded that entitlement to a TDIU on an extraschedular basis was not warranted. The Director found that the evidence failed to support the contention that any of the Veteran’s service-connected disabilities or a combination of the effects of those disabilities prevented employment. Specifically, treatment records showed the Veteran worked at his son’s law firm, and the Veteran did not claim disability through the Social Security Administration (SSA). Although the Director conceded that the Veteran’s service-connected conditions caused functional limitations, the preponderance of the evidence did not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected conditions. The Board may now consider the issue on the merits, de novo, with the Director’s decision being in essence the de facto decision of the AOJ and, as such, not evidence. Wages v. McDonald, 27 Vet. App. 233, 238-239 (2015). For the following reasons, a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted from March 14, 2017 to May 24, 2018, from November 25, 2018 to January 30, 2019, and from August 1, 2019. The evidence of record reflects that the Veteran graduated from college and was employed in the banking industry for approximately the entirety of his career. In his October 2020 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran contended his urinary frequency, ongoing physician appointments to monitor his health, quarterly preventative treatments at a surgical center, and quarterly cystoscopy procedures would prevent him from obtaining substantially gainful employment consistent with his educational and occupational experience. His bladder cancer residuals would also make it difficult for him to travel for work. As noted above, marginal employment may be held to exist, on a facts-found basis, including in a protected environment such as a family business, when earned annual income exceeds the poverty threshold. Here, recent VA treatment records indicate the Veteran reported he is employed at his son’s law firm. VA treatment records from October 2019 indicated the Veteran completed two rounds of treatments for bladder cancer. Another VA treatment record from October 2020 noted that the Veteran completed two more rounds of treatment for his bladder cancer and was scheduled for another treatment and possible cystoscopy. The evidence of record shows that the Veteran is afforded frequent time off of work at his son’s law firm to undergo his required bladder cancer treatments. Thus, the Board finds the Veteran’s employment at his son’s law firm qualifies as employment in a protected environment as he is allowed frequent time off work for his medical treatments while still retaining his job at the law firm. The above evidence including the Veteran’s lay statements reflect that he experiences significant impairments from his residuals of bladder cancer that prevent him from performing any type of employment other than that in the protected environment of his son’s law firm. In this regard, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). For the foregoing reasons, the Veteran’s service-connected bladder cancer residuals render him unable to obtain and maintain substantially gainful employment as that term is defined in the applicable regulation. Thus, entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is warranted from March 14, 2017 to May 24, 2018, from November 25, 2018 to January 30, 2019, and from August 1, 2019. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.