Citation Nr: 21012704 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-43 788 DATE: March 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran is not currently working in a protected role and is therefore employed in a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2004 until December 2011. This mater comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 Department of Veterans Affairs (VA) regional office (RO) rating decision. In its May 2020 decision, the Board found that the question of unemployability was raised by the record per Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the matter by submitting the claim to the Director, Compensation and Pension Service for extraschedular consideration. In December 2020, the Director of Compensation and Pension Service found that the Veteran’s service-connected disabilities did not preclude him from working to warrant a TDIU on an extraschedular basis. The claim now returns to the Board for further adjudication. TDIU It is the established policy of VA 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340(a)(1), 4.15. The term “substantially gainful occupation” is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop.  38 C.F.R. § 4.16(a). See also Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (finding that “there is no standard against which VA adjudicators can... determine whether [a veteran] is employed in a protected environment.”). TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service connected for diverticulitis at 30 percent disabling, right shoulder rotator cuff tear at 10 percent disabling, right knee strain at 10 percent disabling, lipoma left temple area post excision with scar at 10 percent disabling, and postoperative right shoulder scars and bilateral restless leg syndrome as noncompensable. The Veteran’s service-connected disabilities combine to a total of 50 percent. Here, the Board finds that the Veteran does not meet the schedular criteria for a TDIU. While the Veteran does not meet the schedular criteria for a TDIU, it is the established policy of VA 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). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The May 2020 Board remand did refer the TDIU claim for extraschedular consideration. In December 2020, the Director of Compensation Service evaluated the Veteran’s TDIU claim under the provisions of 38 C.F.R. § 4.16(b). The Director concluded that the Veteran was not found to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Board can review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination. Anderson v. Shinseki, 22 Vet. App. 423 (2008). In a March 2020 lay statement, the Veteran stated that he owned an electrical sign installation business. He mainly contends that he works in a protected role and therefore deserves a TDIU rating. Because the Veteran is currently employed and owns an electrical sign installation business, this case turns on whether his role is considered “marginal employment.” After consideration of the claims file, the Board determines that it is not. Regarding marginal employment, the factors to be considered are the veteran’s education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). The effects of medications, if any, are relevant. Mingo v. Derwinski, 2 Vet. App. 51 (1992). The Veteran submitted numerous lay statements in support of his claim. In a November 2015 lay statement, the Veteran stated that, “my condition affects my life in a negative way because I always have to be near a bathroom. I never know when I’m going to be hit with the sudden urge to use the bathroom. I never know when I wake up if today is the day I’ll have diarrhea, constipation, or cramping/discomfort. It’s embarrassing when I have to use the restroom regularly at work, or in public, or if I have to rush out of social situations to use the restroom.” In the March 2020 lay statement, the Veteran stated that he works in the field and office supervising, installing, and servicing signs. The Veteran said that he needed to limit his field work due to his stomach issues as “many of the construction sites do not have adequate bathroom facilities,” and due to the urgency of his symptoms, he is prevented from installing or servicing signs that require him to be 60-100 feet off the ground or climb into tight spaces. Additionally, the Veteran refrains from servicing signs at places of business for fear of his frequent bathroom breaks may displease the customer. Given the above, the Veteran states that he mostly remains in the office where he can have access to a restroom when his symptoms arise. Specifically, the Veteran contends that he would “probably be fired from another job due to the amount of time I typically spend in the bathroom on a daily basis. I have to plan my entire day around having an accessible bathroom. I luckily have a private office bathroom…” The Veteran continued, “Because of my issues, I can’t perform my job to the fullest extent because I try to limit exposure to situations that may result in a bathroom-type accident. I also don’t schedule meetings with meals or closely after meals or travel (drive or fly) for extended trips.” Overall, the Veteran estimated that he has a bowel movement every 2 to 3 hours and immediately after every meal. An April 2015 VA examination regarding the Veteran’s diverticulitis indicates that the Veteran has less function during “flare-ups due to pain which increases with ambulation.” A March 2018 VA examination also shows that the Veteran’s diverticulitis “has difficulties working continuously and away from his office because he has to be close to a bathroom at all times.” In August 2020, VA asked the Veteran to submit a TDIU application containing relevant information such as earned income and employment and educational history. The Veteran did not respond to this request and this information is not readily available from other sources in the claims file. Although the Veteran contends that his service-connected disabilities, especially his diverticulitis, impact his ability to work, the Board finds that the Veteran’s employment does not rise to the level of marginal employment as contemplated by the relevant laws and regulations. While claims file contains two lay statements and two VA examinations weighing in favor of the third Ferrara factor (loss of work-related functions), the claims file does not contain the other necessary information needed by the Board in order to make a decision as to whether the Veteran’s employment is protected. Importantly, VA asked the Veteran to submit a TDIU application containing this relevant information in August 2020. The Veteran did not do so. His failure hinders the Board’s ability to properly analyze this situation. “The duty to assist is not always a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Simply put, while the Veteran has shown that he is self-employed as his electrical sign installation company, he has not met his burden of proving that this role is a protected one. It is necessary for the Bord to discuss all relevant factors when determining whether a Veteran’s employment is considered protected. Without the Veteran’s TDIU application (or other document) indicating his earned income, educational and employment history, the Board is unable to perform this analysis. As such, the Board must conclude that the Veteran is currently employed in a substantially gainful occupation. As such, it need not provide further discussion. Accordingly, the Board finds that entitlement to a TDIU on an extraschedular basis is not warranted. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.