Citation Nr: 21014072 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 10-44 443 DATE: March 11, 2021 ORDER Entitlement to a total disability due to individual unemployability from service-connected disabilities (TDIU) prior to November 25, 2019 is denied. FINDINGS OF FACT 1. Prior to November 25, 2019, the Veteran’s service connected disabilities are as follows: Post-traumatic stress disorder (PTSD) rated at 30 percent; bilateral hearing loss rated at 30 percent; left ankle sprain rated at 30 percent; bilateral tinnitus rated at 10 percent; left foot metatarsalgia and mild hallux valgus rated at 0 percent from September 1, 2008 to October 5, 2016 and rated as 10 percent for left foot metatarsalgia from October 5, 2016; history of malaria rated at 0 percent, onychomycosis rated at 0 percent and hallux valgus left foot rated at 0 percent from October 5, 2016. His combined rating has been 70 percent throughout the pendency of this appeal. 2. Prior to November 25, 2019, the Veteran’s employment was not marginal; and his service-connected disabilities did not render him unable to secure or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU prior to November 25, 2019 have not been met. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16(a), (b), 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1943 to December 1945. His DD Form 214 shows that he received a Bronze Star Medal. This matter comes before the Board from appealed rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a rating decision from November 2009 the RO denied multiple service connection claims and in a January 2010 rating, the RO denied increased rating claims for a left ankle sprain, residuals of malaria and onychomycosis. The Veteran appeared before the undersigned at a hearing held in October 2016, where he testified in part regarding the remaining issue of TDIU, as well as issues no longer on appeal. A transcript of the hearing is associated with the claims folder. In decisions dated in January 2012 and in March 2017 the Board disposed of other issues and remanded others for further development. In March 2017 the Board also remanded an issue of service connection for left ankle arthritis (as part of a bilateral ankle disability claim), which was later granted in full by the RO in an April 2020 decision, thereby removing this matter from appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently before the Board contains no indication that the Veteran initiated an appeal as to the ratings or effective date assigned. Thus, this matter is no longer in appellate status. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Additionally, the March 2017 remand also pointed out that the Veteran filed a TDIU claim in October 2016, reporting that he has been unable to work because of service-connected disabilities, including his left ankle sprain and onychomycosis. Although the claim of TDIU was considered and denied by the RO in December 2016, the Board accepted the TDIU claim as part and parcel with the increased ratings issues already on appeal. Rice v. Shinseki, 22Vet. App.447 (2009). The Board deferred adjudication of the TDIU matter as it was intertwined with the other issues being remanded. Post-remand, the RO granted TDIU in the April 2020 decision based on the schedular criteria having been met for TDIU effective November 25, 2019. This rating erroneously stated that the TDIU claim was granted in full, however the TDIU claim has been pending since at least October 2016 when he filed the TDIU claim, as well as being part and parcel of his increased ratings claims. Therefore, the issue of entitlement to TDIU prior to November 25, 2019 was found to be before the Board in its August 2020 decision which disposed of all other issues remaining on appeal including the increased rating issues for onychomycosis and residuals of malaria which were denied and the left ankle sprain which was granted a 20 percent rating by the Board. In this decision the Board remanded the TDIU issue in part to allow the Veteran to clarify conflicting evidence regarding whether his part time job constituted substantial gainful employment and to afford the RO implementation of the increased rating grant of the left ankle which was pertinent to the issue. This matter is now returned to the Board for further consideration. 1. Entitlement to TDIU prior to November 25, 2019 The Veteran seeks entitlement to a TDIU prior to November 25, 2019 based on his service-connected disabilities. For the reasons discussed below, the claim is denied. The weight of the evidence shows that this condition did not render him unable to secure or maintain substantially gainful employment. For the pendency of the appeal from September 1, 2008 prior to November 25, 2019, the Veteran’s service connected disabilities are as follows: Post traumatic stress disorder (PTSD) rated at 30 percent; bilateral hearing loss rated at 30 percent; left ankle sprain rated at 20 percent; bilateral tinnitus rated at 10 percent; left foot metatarsalgia and mild hallux valgus rated at 0 percent from September 1, 2008 to October 5, 2016 and rated as 10 percent for left foot metatarsalgia from October 5, 2016; history of malaria rated at 0 percent, onychomycosis rated at 0 percent and hallux valgus left foot rated at 0 percent from October 5, 2016. His combined rating for the pendency of this appeal from September 1, 2008 prior to November 25, 2019 is 70 percent. A total disability rating for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). Here, during the relevant period prior to November 25, 2019, the Veteran has had a combined rating of 70 percent or more. Thus, he has met the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a). 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.” 38 C.F.R. §§ 3.340 (a)(1), 4.15 (emphasis added). The term “substantially gainful occupation” is not specifically defined in the regulations governing TDIU. However, “marginal employment” is not considered substantially gainful employment. Generally, marginal employment exists 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. 38 C.F.R. § 4.16 (b). Although TDIU is considered as part and parcel of an increased rating claim, the Veteran did not allege unemployability due to service-connected disabilities until he filed a TDIU claim VA 21-8920 on October 5, 2016. In this claim he alleged that the following disabilities prevented him from engaging in a substantially gainful occupation: bilateral hearing loss, posttraumatic stress disorder (PTSD),bilateral tinnitus, left ankle sprain with decrease in range of motion (claimed as left ankle condition), left foot metatarsalgia, mild hallux valgus (claimed as left foot arthritis) and onychomycosis. He reported having a high school education and additional training as a radio operator. He reported that he became too disabled to work on September 1, 1985, having last worked full time. In his October 2016 hearing the Veteran testified that he previously worked as a salesman. Transcript pg. 7. In another TDIU claim VA 21-8940 filed on November 2, 2016 the Veteran reported working 8 hours per week from August 2006 to present. He worked as a sales advocate and had an earned income of $14,145 per year, $844.48 month. He last worked full time in 1985, with highest annual income of $80,000, having worked at the prior employer from 1949 to 1985 working in sales. However, on the same date he submitted a VA 21-4192 Request for Employment Information in which he described earning $200 a month, working 8 hours a day with duties of answering phones and taking orders. He indicated that this was for an employer he worked for between 1949 and 1985. Later on November 18, 2016, he submitted a VA 21-4192 Request for Employment Information in which he described being employed as a sales advocate working 2 days a week, 8 hours a week and earned $14,303 from November 1, 2015 to October 31, 2016. He indicated that he would be laid off soon but did not elaborate on the reason why. A November 18, 2016 Income and tax statement from his employer showed year to date earnings with 516 hours pay hours (regular) $13,881.14 Medicare pay and 16 hours holiday pay of $422.24. Total pay was $14,303.38. It must also be noted that the prior remand of August 2020 clearly informed the Veteran that evidence as to his income had to be further clarified, as it appeared he was earning more than a marginal income, but had also submitted a document suggesting his earnings were $200 per month around the same time he had submitted the documents showing more than a marginal income. He was given the opportunity to do so, but he did not respond to VA’s requests for further clarifying information on his earnings per an October 2020 Report of General Information and an October 8, 2020 development letter. The Board has no choice, then, but to go by the higher earnings he reported on his November 2, 2016 TDIU claims form and the November 18, 2016 VA 21-4192, as it also appears to be supported by tax information and he failed to provide further clarification that would support a finding that his income was below marginal income. At the time he filed the TDIU claim in October 2016 the poverty threshold for a single person aged 65 or over was $11,511 (for single persons under age 65 the level was $12,486). See Income and Poverty in the United States: 2016 (census.gov) https://www.census.gov/library/publications/2017/demo/p60-259.html. Alternately, marginal employment may exist on a “facts found basis,” even when earned annual income exceeds the poverty threshold, including but not limited to situations where the Veteran is employed “in a protected environment such as a family business or sheltered workshop.” 38 C.F.R. § 4.16 (b). After a full review of the record, the Board finds that entitlement to a TDIU on an is unwarranted for the appeal period prior to November 25, 2019. The weight of the evidence shows that the Veteran’s employment during the relevant period was not “marginal.” Moreover, the evidence shows that he was able to obtain and sustain substantially gainful employment despite his service-connected disabilities. The report of a November 2016 VAX addressing PTSD noted a relevant occupational and educational history. The Veteran was noted to have been retired since 1985, having been a salesmen for 40 years. His primary income was his pension and social security. The Veteran worked part-time 8 hours a week helping an elderly friend follow up on business quotes. He denied occupational impairment. His mental status examination was noted to be unremarkable except for some irritability when expressing dissatisfaction with his past treatment by the VA, but his attention was intact, and he was oriented properly to person, time, and place. His thought process and content were unremarkable. There was no evidence of delusions, hallucinations, inappropriate behavior, obsessive or ritualistic behavior, or lack of judgment or insight. He denied having panic attacks or homicidal or suicidal thoughts. His impulse control was evaluated as good, with no episodes of physical violence. His memory was normal, except for reported mild impairment of immediate memory. He was deemed competent to handle finances. The Veteran reported that with increased stress he becomes increasingly irritable and angry. The Veteran works eight hours a week which provides some extra income and manages his stress level. Due to the Veteran’s PTSD symptoms, working more hours would create more stress, and increase the expression of irritability and anger. This would affect his ability to be personable on sales calls. The report of a November 2016 VA examination of his ankle disclosed a restricted capacity to perform duties that require prolonged standing, prolonged walking, stair climbing, or squatting. The November 2016 VA hearing loss examination addressing functional impacts of his service-connected hearing loss and tinnitus noted the Veteran to be working part-time. He enjoyed his work, but it was “incredibly exhausting” trying to hear and understand both his work colleagues and customers on a daily basis. With his degree of loss, it would be very difficult for him to converse with people without visual cues (i.e., over the phone, with backs turned, etc.). His tinnitus was at times so loud that it “drowns out conversations” and he really has to rely on his visual cues to make sense of conversational cues. A November 2016 VA examination of onychomycosis was negative for occupational impact from this disorder and he was not shown to have residuals of malaria noted in the records including prior VA examinations of January 2010, September 2012, March 2018 and November 2019. The Veteran has consistently worked part time in a job described as sales and customer service in records throughout the pendency of this appeal to the date he was awarded TDIU on November 25, 2019, including the pendency of the increased rating claims from 2008. The records note such employment in April 2008, March 2013, March 2014, February 2015, March 2016, February 2017, May 2017, March 2018 and September 2019. However, the records describing such employment did not reflect that it fell below the poverty line, nor was the employment shown to be sheltered employment. In summary, the evidence shows that that the Veteran’s earnings during the relevant period exceeded the applicable poverty threshold; thus, he was not “marginally employed.” While he was clearly earning less than he had previously, that is not the standard for awarding unemployability benefits. Moreover, he does not seem to contend and the evidence does not suggest that prior to November 25, 2019, he was marginally employed on a “facts found basis” (despite evidence that his annual income exceeded the poverty threshold) based on, e.g., “employment in a protected environment such as a family business or sheltered workshop.” 38 C.F.R. § 3.16 (b)). The Board does not doubt that the Veteran’s service-connected disabilities including PTSD, hearing loss, tinnitus and his left ankle disability resulted in significant functional and occupational impairments. However, despite these impairments, he was able to obtain and sustain a part-time position involving his occupational field and earn a living above the applicable poverty threshold. In conclusion, the preponderance of the evidence shows that the Veteran’s part-time work prior to November 25, 2019 was not merely “marginal employment;” and his service-connected symptoms and impairments did not otherwise render him unemployable. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and entitlement to a TDIU is denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Eckart 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.