Citation Nr: 21008512 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 13-13 244 DATE: February 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from August 31, 2011, to September 9, 2012, and from November 21, 2012 to July 2, 2014, is denied. REMANDED Entitlement to TDIU prior to August 31, 2011, from September 10, 2012, to November 20, 2012, and from July 3, 2014 to January 13, 2015, is remanded. Entitlement to TDIU after January 13, 2015, is remanded. FINDING OF FACT From August 31, 2011, to September 9, 2012, and from November 21, 2012 to July 2, 2014, the Veteran was employed full-time as a technician. CONCLUSION OF LAW The criteria for TDIU from August 31, 2011, to September 9, 2012, and from November 21, 2012 to July 2, 2014, have not been 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 from November 1976 to April 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in June 2015, January 2018, and February 2020. The case has been returned to the Board at this time for further appellate review. Entitlement to TDIU from August 31, 2011, to September 19, 2012, and from November 21, 2012 to July 2, 2014, is denied. 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). Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). Section 4.16 of VA’s regulations does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, as above, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. The Court has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Here, the Board determined that the Veteran first raised the issue of entitlement to TDIU as part of his appeal of a July 2011 rating decision regarding the rating assigned to his service-connected back condition. The issue of entitlement to TDIU has remained on appeal since. From December 4, 2008 to April 11, 2013, the Veteran’s combined evaluation was 40 percent. From April 12, 2013, to June 4, 2017, the Veteran’s combined evaluation was 50 percent, and from June 5, 2017, the Veteran’s combined rating has been 60%. Because the Veteran does not meet the schedular requirements for TDIU at any point during the period on appeal the Board will examine whether his case should be submitted to the Director for extraschedular consideration. As noted above, referral is merited in cases where the evidence suggests veterans are unemployable by reason of service-connected disabilities. The record reflects that the Veteran was employed as a technician full-time from at least August 31, 2011, to September 9, 2012, and from November 21, 2012 to July 2, 2014. The Board finds that the Veteran’s full-time employment from August 31, 2011, to September 9, 2012, and from November 21, 2012 to July 2, 2014, indicates the Veteran was not precluded from engaging in substantially gainful employment for these time periods. It follows that remand for referral to the Director of Compensation for extraschedular TDIU consideration for these time periods is not warranted. REASONS FOR REMAND 1. Entitlement to TDIU prior to August 31, 2011, from September 10, 2012, to November 20, 2012, and from July 3, 2014 to January 13, 2015, is remanded. The issue of entitlement to TDIU prior to August 31, 2011, from September 10, 2012, to November 20, 2012, and from July 3, 2014 to January 13, 2015, is remanded to clarify the Veteran’s employment status during these time periods. First, it is unclear when the Veteran began his full-time employment with Sears Holding Corp. It appears as though the Veteran informed the Social Security Administration (SSA) that he began this job in June 2011. A December 2012 Decision on Unemployment Compensation Claim reflects that the Veteran began this job on July 20, 2011. Finally, the Veteran’s Form 21-8940 reflects that the Veteran began this job on August 31, 2011. As stated above, the Board determined that the Veteran first raised the issue of TDIU as part of his appeal of a July 2011 rating decision regarding the rating assigned to his service-connected back condition. Thus, the Veteran must clarify when he began working full-time at Sears Holding Corp as it appears that he was unemployed prior to starting that job. Second, the Veteran’s employment status for the period of September 10, 2012, to November 20, 2012 is unclear based on the evidence of record. A December 2012 Decision on Unemployment Compensation Claim reflects that the Veteran was on a leave of absence from his job as Sears Holding Corp. from September 10, 2012, to November 20, 2012. However, the Veteran’s Form 21-8940 does not reflect this. Accordingly, the Veteran must clarify his employment status during this time period. Finally, it is unclear when the Veteran stopped working at Sears Holding Corp. The Veteran’s Form 21-8940 reflects that the Veteran stopped working full-time on July 3, 2014, and that he stopped working at Sears Holding Corp. on January 13, 2015. It also reflects that the Veteran was hospitalized from July 6, 2014, to December 29, 2014. In documents from the Veteran’s SSA application for benefits dated October 2014, the Veteran stated he was still working, but that he was also hospitalized. In undated documents from the Veteran’s application for benefits from the SSA, the Veteran indicated that he stopped working in November 2014, and in documents dated in December 2014, the Veteran stated he was no longer working. During the March 2015 Board hearing, the Veteran stated that his employer made accommodations for him, such as reducing his hours. Thus, the Veteran must clarify when he stopped working at Sears Holding Corp. and what, if any accommodations the Veteran’s employer made during the time period between July 3, 2014, and January 13, 2015. 2. Entitlement to TDIU after January 13, 2015, is remanded. The record establishes that the Veteran stopped working at Sears Holding Corp. on January 13, 2015, at the latest. The Veteran was determined to be entitled to VA Vocational Rehabilitation service in 2009 with the goal of providing the Veteran with occupational opportunities that would be sedentary in nature, due to the limitations imposed by his service-connected disabilities; however, in April 2015, the Veteran’s Vocational Rehabilitation Counselor determined that, because the Veteran’s service-connected disabilities had worsened, the significant limitations and restrictions they imposed on his ability to obtain employment rendered him unable to obtain or maintain employment. The Veteran’s counselor went on to state that it was not feasible for the Veteran to obtain and maintain employment due to the significant employment limitations and restrictions he was experiencing as a result of his service-connected disabilities and their effect on virtually every aspect of his life. In June 2017, a private vocational expert opined, with a high degree of certainty, that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities without regard to any other conditions, since at least January 13, 2015, when he was last capable of working as the maintenance technician for Sears. A September 2020 VA examination reflects that the Veteran’s service-connected bilateral knee condition results in his inability to (1) sit or stand for long periods of time without increased swelling and pain, (2) crouch down without being able to get back up, and (3) lift heavy objects or push and pull them without causing a flare up. A November 2020 VA opinion reflects that the Veteran’s service-connected back condition results in the Veteran’s inability to lift heavier objects without pain or causing flare ups, or bend over and pick things up. The Veteran’s back disability also prevents him from bending at the knees and getting up, and it results in the Veteran having to take multiple breaks from prolonged sitting or standing to relieve pressure and pain. Finally, a December 2020 VA opinion reflects that the Veterans psychiatric disabilities result in (1) difficulty maintaining concentration and focus on work over a period of time, tending to skip from one task to another without completing the prior task, and (2) depression such that he has difficulty sustaining energy and motivation to complete assignments at work. For these reasons, the Board finds that referral to the Director is warranted for extraschedular consideration for the time period after January 13, 2015. The matters are REMANDED for the following action: 1. Ask the Veteran to clarify (1) the date he began working at Sears Holding Corp. (2) his employment status from September 10, 2012, to November 20, 2012, and (3) his employment status from July 3, 2014, to January 13, 2015, and, if he was employed at any time during this time period, what accommodations his employer provided, if any. Advise the Veteran that, if he does not provide the requested information, the claim will be determined based on the evidence of record. 2. Refer the claim of entitlement to TDIU after January 13, 2015, to the Director of Compensation and Pension Services, for consideration of whether TDIU is warranted on an extraschedular basis after January 13, 2015. 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. See 38 C.F.R. § 4.16(b). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.