Citation Nr: 21012726 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 13-33 960A DATE: March 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 16, 2011 is denied. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities did not meet the percentage requirements for the award of a schedular TDIU prior to February 8, 2017, but the Veteran was awarded a TDIU on an extraschedular basis on and after September 16, 2011. 2. Prior to September 16, 2011, the Veteran was able to maintain substantially gainful employment; he made more than the poverty threshold established by the Bureau of Census and his employment was not in a protected environment. CONCLUSION OF LAW The criteria for entitlement to TDIU prior to September 16, 2011, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.400(o), 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 2002 to June 2005. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims file. By way of history, in a March 2019 rating decision, the RO granted entitlement to TDIU, effective January 7, 2019. However, in the June 2019 Board remand, the Board found that the TDIU claim arose during the course of an increased rating appeal, and the March 2019 grant did not bifurcate the TDIU issue for a portion of the applicable period on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). The issue was remanded for the RO to consider any earlier date. Thereafter, in a June 2020 rating decision, the RO granted entitlement to TDIU, effective February 8, 2017. This date was based on the date on which the Veteran met the schedular percentage requirements for unemployability consideration. In the August 2020 Board decision, the Board noted that the issue of TDIU became part of the underlying PTSD increased rating appeal when the Veteran filed an application for TDIU in August 2011. Therefore, the effective date of February 8, 2017, was not a full grant of the benefit sought on appeal. However, the combined disability rating prior to that date did not meet the schedular requirements for a TDIU, so the Board remanded the issue to the Director of VA’s Compensation Service for consideration of entitlement to TDIU on an extraschedular basis for the period on appeal prior to February 8, 2017. In a December 2020 memorandum, the Director of Compensation Service determined that the cumulative evidence supports a finding of extra-schedular TDIU based on the effects of service-connected conditions from September 16, 2011, the day following the last day of full-time employment, and that extra-schedular TDIU entitlement remains in effect until February 8, 2017, the date schedular TDIU was granted. The full appeal period was considered. Therefore, in a December 2020 rating decision, extraschedular TDIU was granted effective September 16, 2011. As this does not constitute a full grant for the entire appeal period, this issue remains on appeal. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned 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 may also be held to exist in certain cases, such as employment in a protected environment like a family business or sheltered workshop, when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. See 38 C.F.R. § 4.16(a). The U.S. Census Bureau’s average poverty thresholds for one person during the period on appeal may be found here: https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. As noted above, the Veteran’s combined disability rating did not meet the schedular requirements for TDIU until February 8, 2017. Beginning May 28, 2010, the Veteran was service-connected for PTSD (50 percent) and a back condition (10 percent), with the overall combined rating as 60 percent; therefore, the Board remanded for extraschedular consideration prior to February 2017 to the Director of Compensation, and the Veteran was granted extraschedular TDIU on and after September 16, 2011 through February 8, 2017 when he has schedular TDIU. The issue in this case then is the date entitlement to TDIU arose and, consequently, the date the Veteran was unemployable as that term is used in section 4.16(a). The evidence in this case establishes that the Veteran was gainfully employed until September 15, 2011, and that, thereafter, he was unable to obtain and maintain gainful employment due to his service-connected conditions. The evidence establishing this fact includes the February 2018 TDIU application the Veteran submitted with more information as to his work history. Specifically, pursuant to the Board’s September 2017 Remand, the RO sent the Veteran another VA Form 21-4192 requesting that he completed the previous employer section, including part-time employment history, in its entirety, as relating to his claim of entitlement to a TDIU. He returned that form in 2018, where he marked that his disabilities affected his full-time employment beginning June 2012, and that he last worked full-time on September 15, 2011. He marked that he worked at the Sports Authority from August 15, 2006 to September 15, 2011 for 38 hours a week with $1,322 earnings a month. This income exceeds the poverty threshold established by the U.S. Department of Commerce, Bureau of the Census. He was with this same employer from 2006 until September 15, 2011 and has not alleged he earned significantly less during those years, such that he possibly fell below the poverty threshold. Specifically, his reported income indicates $15,864 yearly, which exceeds the poverty thresholds for 2009 ($11,161) and 2010 ($11,344). His reported earnings would also exceed the poverty threshold in 2011 until he stopped working. Therefore, the employment is considered substantially gainful employment. The Veteran has not alleged, and the evidence does not support finding, that the employment was in a protected environment. Because the greater weight of the evidence establishes that the Veteran was gainfully employed (not in a protected environment) until September 15, 2011, the Veteran was not unemployable prior to September 16, 2011. The earliest date on which it is factually ascertainable that the Veteran met the criteria for extraschedular TDIU is September 16, 2011. In sum, the Veteran was able to maintain substantially gainful employment until September 16, 2011, and entitlement to TDIU any earlier than September 16, 2011, is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.