Citation Nr: 21014757 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-36 469 DATE: March 15, 2021 ORDER Prior to November 2, 2019, a total disability rating based on individual unemployability (TDIU) is denied. From November 2, 2019 to January 22, 2020, TDIU is granted. FINDINGS OF FACT 1. Prior to October 3, 2019, the preponderance of the evidence is against a finding that the Veteran’s right hip disability alone rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience and from January 2019 through November 1, 2019 the Veteran was gainfully employed full time. 2. Beginning November 2, 2019, the probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. Prior to November 2, 2019, the criteria for establishing entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). 2. Beginning November 2, 2019, the criteria for establishing entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2005 to March 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In October 2018, the Board denied the Veteran’s claim for TDIU, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In an April 2019 Memorandum Decision, the Court vacated the Board’s October 2018 decision and remanded the claim to the Board for further adjudication. In a February 2020 rating decision, a 100 percent rating was granted for posttraumatic stress disorder (PTSD), effective January 22, 2020. In April 2020 and August 2020, the Board remanded the issue of entitlement to TDIU prior to January 22, 2020, for further development. The requested development was completed, and the case has been returned to the Board for further appellate action.   TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. §§ 4.16(a). Marginal employment generally 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. Id. Marginal employment may also be held to exist in some cases when earned annual income exceeds the poverty threshold on a facts found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. The poverty threshold for one person from 2012 to 2019 ranged between $11,945 and $13,300. See U.S. CENSUS BUREAU, POVERTY THRESHOLDS, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).   Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). 1. Entitlement to TDIU prior to January 22, 2020 Prior to November 2, 2019 Upon review of the record, the Board finds that TDIU is not warranted during the appeal period prior to November 2, 2019. Prior to October 3, 2019, service connection was in effect for right hip femoral acetabular impingement syndrome with degenerative joint disease, which was assigned a 20 percent rating for limitation of flexion, a 10 percent rating for limitation of flexion, and a 0 percent rating for limitation of extension. The Veteran’s combined disability rating was 30 percent. Accordingly, the schedular criteria for entitlement to TDIU were not met. Effective October 3, 2019, service connection for PTSD was established, with a 70 percent rating assigned. The combined rating was increased to 90 percent from that date and the schedular criteria were met as of that date. The record shows that the Veteran has a master’s degree in finance, and he reported working as a commercial banker for JP Morgan prior to joining the military. Throughout the appeal period, the Veteran worked for a temp agency and held a number of different jobs, including a bank teller, a salesperson, an insurance agent, a cashier, a truck driver, an Uber driver, and a warehouse laborer. The Veteran underwent a VA examination in March 2013, during which he reported right hip pain, which made it difficult to stand more than 15 minutes and was aggravated when getting out of a vehicle on the passenger side. He stated that he was working as a bank teller but was fired eight weeks ago because he frequently had to sit down on the job. He stated that he was looking for a job as an office administrator. The examiner opined that the Veteran’s right hip disability would preclude physical or light work that required prolonged standing, but the Veteran should be capable of working a job where he can spend much of the time sitting. During the October 2017 Board hearing, the Veteran testified that he was working in data entry at the time and stated that he sometimes had to stand up from his desk and change positions to his keep his hip pain from coming back. The Veteran underwent another VA examination in May 2018, during which he reported constant right hip pain, which was apparently aggravated by prolonged sitting, standing, and walking more than 20 minutes. He stated that his ability to function in a work environment were progressively limited by his physical limitations in terms of standing, walking, and sitting. The examiner opined that the Veteran’s right hip disability would impact any job requiring prolonged sitting, standing, or walking. The Veteran underwent another VA examination in October 2019, during which he reported flare ups of hip pain when sitting for too long or standing for an eight-hour work shift. The Veteran stated that he worked as a driver in the past but indicated that he could not sit for too long. He reported currently working as a part-time cashier and having difficulty standing and having to sit down. The examiner opined that the Veteran’s left hip disability would cause difficulty with prolonged sitting, standing, or walking. Although some of the VA examiner’s opined that the Veteran’s right hip disability would cause difficulty with prolonged walking, standing, or sitting, the decision of whether a veteran’s service-connected disabilities render him employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that “applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.”). The Board finds that when considering the Veteran's education and work history, the probative evidence of records shows that the Veteran’s service-connected right hip disability alone did not preclude him from obtaining and maintaining gainful employment prior to October 3, 2019. VA treatment records show that in February 2013, the Veteran reported increasing right hip pain and stated that he recently lost his job as a bank teller because he was unable to stand for prolonged periods of time. In July 2013, the Veteran received a right hip intra-articular injection, which reportedly provided good relief of his pain for about a year-and-a-half. In May 2015, the Veteran reported working full-time in data entry. In June 2015, he had another right hip injection. In August 2015, the Veteran reported that his hip pain improved significantly, and he was able to sleep better, walk better, and exercise more. He stated that he experienced transient exacerbations of pain from time to time, but it was much milder than before and easily controlled with pain medication, and he denied any side effects from his medication. In October 2015, the Veteran reported working as a clerk for a temp agency. In February 2016, it was noted that the Veteran ambulated without assistance, and he had no complaints of pain and no side effects from medications. Through September 30, 2016, the Veteran worked as an independent contractor for a trucking company. In November 2016, the Veteran received another right hip injection, after which he reported great relief for nine months. In March 2017, he reported working full-time in data entry. In August 2017, the Veteran reported increased right hip pain, which worsened with movement and during sleep, but improved when he was not walking. It was noted that the Veteran was usually very active, but his recent increase in pain has limited his exercise. Later that month, the Veteran received another right hip injection; however, he stated that his relief only lasted about two weeks. In September 2017, the Veteran reported working as an insurance agent at a bank. In October 2017, he stated that his pain had improved somewhat. In January 2018, the Veteran reported working full-time as a long-distance truck driver. In February 2018, he reported working as an uber driver. He stated that although he had a master’s degree in finance, he was unable to find better employment because he was not able to speak Spanish. In April 2018, he reported working for Uber until he was able to find another job as a long-distance truck driver. During an October 2019 VA mental health examination, the Veteran reported being unable to keep a job and being fired from every job he had because he was depressed and had right hip pain, did not handle stress well, got into a fight with a co-worker, and was easily angered. He stated that he stopped driving for Uber because he lost his car due to his inability to make payments. During a December 2019 VA mental health examination, the reported being fired from his last two jobs because he got into fights with co-workers and supervisors. A February 2020 VA mental health treatment record shows that the Veteran had difficulty maintaining jobs due to interpersonal conflict. During a February 2020 VA mental health examination, the Veteran reported difficulty maintaining employment due to his impulsive anger, verbal outbursts, difficulty getting along with others, poor focus, hypervigilance, and poor attendance. Although the Veteran worked throughout most of the appeal period, he asserts that none of his work constituted substantially gainful employment. On his April 2018 application for TDIU (VA Form 21-8940), the Veteran asserted that he last worked full-time in March 2017, at which time he became too disabled to work. He indicated that from September 2016 through March 2017, he worked 35 hours a week in sales, earning up to $1,000 a month. From 2014 through 2016, he reported working 10 hours a week for a temp agency, earning up to $500 a month. As subsequent VA treatment records showed that the Veteran reported working several jobs since March 2017, in the April 2020 remand, the Board asked the Veteran to submit information regarding all of his employment since December 2012, both part-time and full-time, as well as proof of income for any periods of self-employment and/or work as an independent contractor. In May 2020, the Veteran submitted another VA Form 21-8940. However, he did not provide the names and address of any former employers, specific dates of employment, or proof of income. In the August 2020 remand, the Board again asked the Veteran to submit a fully completed VA Form 21-8940 with the names and addresses of all employers for whom he worked, both part-time and full-time, throughout the course of the claim, as well as proof of income for any self-employment or work as an independent contractor. The Veteran was advised that his failure to cooperate in the development of his claim could result in denial of the claim. See 38 C.F.R. § 3.158; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In September 2020, the Veteran submitted another VA Form 21-8940 in which he asserted that he last worked full-time in December 2011, at which time he became too disabled to work. He indicated that after December 2011, he worked nine hours a week for a temp agency through December 2015, and his highest gross earnings were $250 a month. From February 2016 through August 2016, he reported working 20 hours a week as a truck driver, and his highest gross earnings were $400 a month. From June 2016 through September 2016, he reported working 15 hours a week as a truck driver for a different company, and his highest gross earnings were $95 a month. From August 2018 through February 2019, he reported working 17 hours a week for a temp agency doing insurance sales, and his highest gross earnings were $357 a month. From January 2016 to December 2018, he reported working 19 hours a week as an Uber driver, and his highest gross earnings were $395 a month. From January 2019 through September 2019, he reported working 15 hours a week as a cashier at a casino, and his highest gross earnings were $389 a month. In a written statement accompanying the Veteran’s September 2020 VA Form 21-8940, he indicated that in 2012, he began counseling for what he now knows is PTSD, and his unrecognized mental health needs and untreated hip conditions made it virtually impossible to maintain meaningful and gainful employment since December 2011. He also claimed that his prior employment as an independent contractor should be evaluated based on net income, not gross income, and claimed that after accounting for his monthly car payment, gas, tolls, and income taxes, his income as an Uber driver would fall below the poverty line. However, despite numerous requests from VA, the Veteran has failed to submit any proof of income from his work as an independent contractor. Although the Veteran claims that he is unable to obtain his income tax returns because he has been homeless, and “the recent IRS closure has been a further hinderance,” the Board finds that such assertions lack credibility. The Veteran is well educated with a master’s degree in finance, and his recent statements have all been typed and uploaded electronically, demonstrating that he has access to a computer with internet. Therefore, the Board finds it unlikely that the Veteran is not able to obtain his own tax returns online or otherwise. Additionally, the Veteran’s assertion that none of his employment during the appeal period constituted substantially gainful employment is contradicted by statements he made on prior occasions. For instance, the Veteran now claims that he earned, at most, $389 a month working part-time as a cashier at a casino; however, on an April 2020 VA Vocational Rehabilitation Needs Inventory form, he reported working full-time as a cashier for a casino from January 2019 to November 1, 2019 and earning, on average, $1,600 a month. In April 2018, the Veteran submitted a Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192) along with his TDIU application indicating that he only worked about 10 hours a week for a temp agency between March 2014 and March 2017. However, VA treatment records show that the Veteran reported working full-time on several occasions during that time period. Thr Board acknowledges the Veteran’s assertion in a January 2021 written statement that all “gig” jobs, such as working for a temp agency or driving for a ride share company, should not be considered gainful employment because they are “protected work environments requiring manual labor such as sitting in one painful position for hours but the allowance of breaks at the cost of revenue for the owner-operator.” However, the Veteran has not asserted that he was employed in a family business or sheltered workshop or that he was afforded any special accommodations or concessions at those jobs. In fact, he appears to assert the opposite—that he was not provided any accommodations, such as paid breaks. The fact that the Veteran was able to work at jobs where he was not provided special accommodations, such as paid breaks, further supports a finding that he did not work in a protected work environment.   Finally, the Board acknowledges the Veteran’s assertion that TDIU should be granted based on his PTSD from 2012 through 2020 because “the number of jobs held and thus fired from for not meeting attendance, customer service, physical expectations or teamwork metrics is a true sign that the physical limitations and outbursts from PTSD were in full view despite a missing diagnosis.” He requests that TDIU be granted on an extraschedular basis prior to the award of service connection for PTSD because his mental health condition had not been properly diagnosed yet. While the Board sympathizes with the Veteran, the effective date for an award of TDIU can be no earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of TDIU is based. See Delrio v. Wilkie, 32 Vet. App. 232, 428 (2019). As service connection was not in effect for PTSD until October 3, 2019, the Board may not consider the Veteran’s symptoms of PTSD in determining entitlement to TDIU prior to that date. In sum, much of the information provided on the Veteran’s applications for TDIU is inconsistent with other evidence of record, and the Veteran has not responded to VA’s multiple requests for proof of income. Accordingly, there is no credible evidence of record to support the Veteran’s assertion that his employment throughout the appeal period did not constitute substantially gainful employment. Moreover, VA treatment records show that the Veteran reported long periods of time during which he was reportedly active, and he held full-time jobs driving and performing data entry. Accordingly, the Board finds the probative evidence of record shows that the Veteran’s right hip disability alone did not prevent him from working jobs that required mostly sitting. Therefore, referral for extraschedular consideration of entitlement to TDIU prior to October 3, 2019 is not warranted. Moreover, from October 3, 2019 through November 1, 2019, the Veteran was employed full time earning approximately $1,600 per month in a job he held since January 2019. Such equates to an annual salary of approximately $19,200 or $16,000 during his employment with that company, both well above the poverty threshold. As discussed above, the Board does not find his employment during the period prior to November 1, 2019 constitutes marginal employment. Thus, entitlement to TDIU is not warranted prior to November 2, 2019. November 2, 2019 to January 22, 2020 Upon review of the record, the Board finds that TDIU is warranted as of November 2, 2019, the day following his last full-time employment. As of that date, service connection was in effect for PTSD rated at 70 percent, and a right hip disability rated at 20 percent rating for limitation of flexion, 10 percent for limitation of flexion, and a 0 percent for limitation of extension. The Veteran’s combined disability rating was 90 percent. Accordingly, the schedular criteria for entitlement to TDIU were met. The Veteran underwent a VA mental health examination in October 2019, during which he endorsed symptoms of depressed mood; chronic sleep impairment; flattened affect; suspiciousness; anxiety; panic attacks; disturbances of mood and motivation; mild memory loss; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran reported being unable to keep a job and being fired from every job he had because he was depressed and had right hip pain, did not handle stress well, got into a fight with a co-worker, and was easily angered. An April 2020 VA Vocational Rehabilitation Needs Inventory form shows that the Veteran last worked full-time as a cashier for a casino on November 1, 2019. During a December 2019 VA mental health examination, he reported being fired from his from his job at the casino due to getting into fights with coworkers and supervisors. He reported recently obtaining a job as a server in late November, but stated that he was fired after one hour because he got into a fight with his supervisor. During a February 2020 VA mental health examination, the Veteran denied any additional employment since his last VA examination and reported continued difficulty maintaining employment due to his impulsive anger, verbal outbursts, difficulty getting along with others, poor focus, hypervigilance, and poor attendance. Beginning January 22, 2020, the Veteran was granted a 100 percent rating for PTSD. Based on the foregoing, the Board finds that it is at least as likely as not that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation since November 2, 2019. Accordingly, TDIU is granted from November 2, 2019 to January 22, 2020. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.