Citation Nr: 21013677 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-05 646 DATE: March 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 15, 2013, is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to his service-connected mental health condition, service-connected tonsillitis, service-connected hypertension, service-connected bilateral shoulder and bilateral knee conditions, and service-connected medications, is remanded. FINDING OF FACT The Veteran’s employment at ML, ending on August 15, 2013, was not marginal, was not in a protected environment, and exceeded the poverty threshold for one person. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to August 15, 2013, have not been met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from June 1980 to July 1989. In June 2018 and October 2019 Decisions, the Board, in pertinent part, remanded the issues of: (a) entitlement to service connection for sleep apnea; and (b) entitlement to a TDIU prior to April 1, 2017. In an October 2020 Decision, the Board, in pertinent part: (a) granted entitlement to a TDIU from August 15, 2013, to March 31, 2017; (b) remanded entitlement to service connection for sleep apnea; and (c) remanded entitlement to a TDIU prior to August 15, 2013. 1. Entitlement to a TDIU prior to August 15, 2013 Schedular TDIU may be assigned when the schedular rating is less than total and it is found that the disabled person is unable to obtain or maintain 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 sole fact that the Veteran was unemployed or had difficulty obtaining employment is not enough; rather, the ultimate question is whether the Veteran’s combined service-connected disabilities prevented him from being capable of the mental and physical acts required by employment. 38 C.F.R. § 4.16; Bowling v. Principi, 15 Vet. App. 1 (2001); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Generally, marginal employment shall be 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. 38 C.F.R. § 4.16(a); Faust v. West, 13 Vet. App. 342, 355-56 (2000) (“substantially gainful employment” for TDIU purposes is met where the annual earned income exceeds the poverty threshold for “one person,” irrespective of the number of hours or days actually worked and without regard to any prior income history). Marginal employment may also be held to exist on a facts-found basis, including when employment resulting in earned annual income exceeding the poverty threshold for one person was performed in a “protected environment such as a family business or sheltered workshop.” 38 C.F.R. § 4.16(a). The Veteran is currently service connected for: (a) generalized anxiety disorder and dysthymic disorder; (b) left knee meniscal tear; (c) residuals status post total right knee arthroplasty; (d) left shoulder rotator cuff strain; (e) right shoulder rotator cuff strain; (f) right knee meniscal tear with locking; (g) right knee instability; (h) right knee strain; (i) tinnitus; (j) hypertension; (k) tonsillitis; (l) erectile dysfunction; (m) scar right thigh; and (n) surgical scar right knee. See November 2020 Codesheet. The Veteran’s combined evaluation for compensation is currently: (a) 80 percent from November 23, 2011; 100 percent from February 24, 2016; 90 percent from April 1, 2017; and 100 percent since September 27, 2018. Id. As such, the Veteran has met the schedular criteria for TDIU consideration since November 23, 2011. 38 C.F.R. § 4.16(a). An August 2013 Correspondence between the Veteran and his former employer ML revealed that the Veteran worked at ML since March 2007 but wanted to resign because of stress and having to intermittently take time off for medical appointments related to his mental health, bilateral knees, and bilateral shoulders. The Veteran reported that, because of his medical issues and appointments, he was struggling with workload, had difficulty focusing and concentrating, and noticed an extreme change in behavior. The Veteran concluded that he would be resigning effective August 15, 2013, because of his physical and mental health issues and difficulty maintaining work-life balance due to family issues. In a September 2016 VA Form 21-8940, the Veteran reported that his last employer was ML, for 32 hours per week, from March 1, 2007, through August 15, 2013. The Veteran further reported that he lost 3 weeks due to illness and had a highest gross earnings per month of $3,301.00. In a September 2016 VA Form 21-4192, the Veteran’s former employer ML listed: employment spanning March 1, 2007, through August 15, 2013; $31,859.00 earned during the 12 months preceding the last date of employment; 113 hours (a little over 14, 8-hour days) lost during the 12 months preceding the last date of employment; schedule of 8 hours per day and 32 hours per week; no concessions being made for reason of age or disability; and that the Veteran voluntarily retired due to health issues, with his date last worked being August 15, 2013. The October 2020 Board Decision found that there was insufficient evidence to determine whether the Veteran’s employment as an administrative assistant at ML constituted marginal employment or work in a protected environment; as such, the Board remanded for further development regarding the Veteran’s salary and any other relevant information. In a November 2020 VA Form 21-8940, the Veteran reported that his last employer was ML, for 32 hours per week, from March 1, 2007, through August 15, 2013. The Veteran further reported that he lost 3 weeks due to illness and had a highest gross earnings per month of $3,301.00. In a November 2020 Statement, the Veteran further reported that ML closed down in April 2017 and he had no means of getting an updated VA Form 21-4192; as such, he re-submitted the September 2016 VA Form 21-4192 from ML. Based on the evidence above, the Board finds that the Veteran’s employment at ML, ending on August 15, 2013, was not marginal, was not in a protected environment, and exceeded the poverty threshold for one person. Specifically, the Veteran’s employment at ML was not marginal because his gross earnings ($31,859.00 earned during the 12 months preceding the last date of employment) exceeded the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person ($11,945 in 2012 for one person under 65 years old and $12,119 in 2013 for one person under 65 years old). 38 C.F.R. § 4.16(a); Faust, supra. Further, neither the Veteran contends, nor the evidence from ML indicates, that this was a protected environment. As such, the Board finds that the Veteran’s substantial gainful occupation at ML ended on August 15, 2013, and must deny the claim for entitlement to a TDIU prior to August 15, 2013. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea The Veteran has generally contended that his sleep apnea was caused or aggravated by his service or secondary to his service-connected mental health condition, service-connected tonsillitis, service-connected hypertension, service-connected bilateral shoulder and bilateral knee conditions, and service-connected medications. See November 2011 VA Form 21-526b and November 2011 Statement (the Veteran contended that his sleep apnea was secondary to mental health condition); January 2012 VA sinusitis, rhinitis, and other conditions of the nose, throat, larynx, and pharynx examination (the Veteran contended that his sleep apnea was secondary to his tonsillitis); November 2012 Notice of Disagreement (the Veteran contended that his sleep apnea was secondary to his mental health condition and/or to the medications taken for his shoulders and knees); August 2013 Statement (the Veteran contended that his sleep apnea was secondary to his mental health condition and/or his chronic pain; he also contended that his pulmonary issues were intertwined with his sleep apnea). The October 2019 Board Decision found the September 2018 sleep apnea examination opinion to be inadequate because it was inconsistent with the holding in Ward and it failed to adequately discusses the theory of aggravation. Ward v. Wilkie, 31 Vet. App. 233 (2019); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The October 2020 Board Decision found the August 2020 VA sleep apnea opinion to be inadequate because it did not adequately consider the theory of secondary service connection to the mental health condition. Barr, supra. As such, the Veteran was most recently afforded a VA etiological opinion in November 2020. However, the Board finds that the November 2020 opinion is also inadequate. Barr, supra. The examiner considered whether the sleep apnea was related to service on a direct basis, related to the mental health condition on a secondary basis, and related to hypertension on a secondary basis; however, neither the November 2020 opinion, nor any opinion to date, considered the Veteran’s other theories of service connection (secondary to his service-connected tonsillitis, service-connected bilateral shoulder and bilateral knee conditions, and service-connected medications). Accordingly, because these theories have not been addressed by VA or private examiners, remand is warranted for further medical development. The matters are REMANDED for the following action: 1. Obtain an opinion to determine the etiology of the Veteran’s sleep apnea, including whether it was: (a) caused or aggravated by his service; (b) secondary to his service-connected mental health condition; (c) secondary to his service-connected tonsillitis; (d) secondary to his service-connected hypertension; (e) secondary to his service-connected bilateral shoulder and bilateral knee conditions; and (f) secondary to his service-connected medications. Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is necessary to render the requested addendum opinion. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.