Citation Nr: 21020707 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-41 341 DATE: April 8, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted, effective October 31, 2011. FINDING OF FACT The Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1987 to July 1990, and from November 1990 to February 1991. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2013 rating decision. The Veteran testified at a Board hearing in August 2019. The Board remanded this matter in December 2019. In March 2021, the Veteran submitted a VA Form 20-0995 Supplemental Claim Application and indicated that he wanted to opt-in to VA’s modernized appeal system, known as AMA, for the Appeal Modernization Act. This form, however. was received more than 60 days after issuance of a November 2020 Supplemental Statement of the Case (SSOC). Therefore, it is untimely. The Board acknowledges that a TDIU application form was received within 60 days of the November 2020 SSOC. This TDIU application form, however, is not a valid vehicle for opting-in to AMA. For these reasons, the appeal for the issue of a TDIU will continue to be processed under VA’s legacy appeal system. *** The Veteran seeks entitlement to a TDIU. As noted in the December 2019 Board remand, this issue stems from an increased rating claim that was received on October 31, 2012. The Veteran seeks an TDIU date of October 25, 2011. See, e.g., 3/4/20201 VA 21-8940. A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where 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. § 4.16(a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2020); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In this case, the Veteran meets the percentage threshold for schedular consideration of a TDIU over the entire appeal period. Service connection is in effect for obstructive sleep apnea (50 percent), residuals of a left distal fibula fracture (30 percent), left knee strain with tendonitis and arthritis (10 percent), right knee meniscus tear with arthritis (10 percent), left lower eyelid scar (noncompensable), right knee scar (noncompensable), residuals status post left eye orbital fracture (noncompensable), and left ankle scar (noncompensable). At his August 2019 Board hearing, the Veteran indicated that he has not been able to work since he underwent surgery for his left ankle in April 2013. He explained that he had worked as a construction general contractor but could no longer work as such. He referenced efforts to undergo vocational rehabilitation but suggested that these efforts had been hampered by his left ankle limitations. The record shows that the Veteran applied for VA vocational rehabilitation in April 2015. In March 2021, the Veteran submitted a formal TDIU application. He asserted that his sleep apnea, right knee meniscus tear and residuals of the left distal fibula fracture prevent him from securing or following substantially gainful employment. He reported last working full time on October 25, 2011. Regarding work history, he reported working as construction contractor from 1992 to 2011. Regarding educational level, he reported a high school education and one year of college. In March 2021, the Veteran also submitted a vocational assessment from a private vocational consultant. The consultant opined that the Veteran’s records are consistent with an individual who is disabled and more likely than not unable to secure and follow substantially gainful employment, including sedentary work, as a result of his service-connected disabilities since at least October 2011. Based on the evidence of record, and resolving doubt in favor of the Veteran, the Board finds that he meets the criteria for entitlement to a TDIU. The evidence establishes that the Veteran’s knee and fibula disabilities significantly limits his mobility. Additionally, his sleep apnea causes to experience chronic fatigue. In the Board’s review and consideration of relevant factors, these limitations are inconsistent with substantially gainful employment for an individual with the work history and educational background of the Veteran. As mentioned, he worked as a construction contractor, a line of work that is both physically and mentally demanding. There is no indication that he would be able to find substantially gainful employment in any other capacity with consideration of his work history being limited to primary one field. There is some indication that the Veteran continues to be involved in the management of the construction company that he owns. In this regard, the Veteran’s attorney representative has indicated that his wife handles the day to day operations of the company and that the Veteran’s role in the company has been very limited, serving mostly in administrative roles. The representative asserts that this meets the definition of employment in a protected environment per 38 C.F.R. § 4.16(a). The Board see no reason to doubt the credulity of these statements and thus it agrees. As already mentioned, the evidence establishes that the Veteran’s main service-connected disabilities limit his ability to engage in substantially gainful employment. The fact that he is the owner of a construction company does not alter this fact. If anything, it validates the theory that any work performed by him since October 2011 has been in the protected environment of a family business. As mentioned, this TDIU claim stems from an increased rating claim that was received on October 31, 2012. Since the evidence establishes that the Veteran has been unemployable for TDIU purposes since October 25, 2011, the Board finds that the Veteran is entitled to a TDIU since October 31, 2011, exactly one year prior to the date of the increased rating claim. See 38 C.F.R. § 3.400(o)(2) (stating that the effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date.) In sum, the Board finds that a TDIU is warranted for the period since October 31, 2011. While this is approximately 6 days less than the date sought by the Veteran, it does not alter the amount of compensation. See 38 C.F.R. § 3.31 (2020) (stating that the effective date of a monetary award may not be made for any period prior to the first day of the calendar month following the month in which the award became effective). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.