Citation Nr: 21022639 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-35 219 DATE: April 16, 2021 ORDER From December 12, 2018 to April 6, 2019, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. By rating action of November 2020, the Veteran was awarded TDIU effective April 6, 2019. 2. The evidence of record makes it at least as likely as not that the Veteran ceased work in December 12, 2018 as a result of his inability to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW From December 12, 2018 to April 6, 2019, the criteria for TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1987 to June 1990 and from March 1991 to September 1991. In a July 2018 decision, the Board found the claim for TDIU was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), and remanded the issue for further development. Thereafter, in a November 2020 rating decision, TDIU was awarded effective April 6, 2019. However, in a December 2020 remand, the Board again remanded the issue for the AOJ to adjudicate the period prior to April 6, 2019 noting that a formal application was filed in 2018. TDIU In its November 2020 rating decision, the AOJ indicated the award of TDIU effective April 6, 2019 was “the next day following termination of employment.” The Board notes that the Veteran has not contested the award of TDIU effective from April 6, 2019 and has not presented additional evidence in support of his claim of TDIU for the period prior to April 6, 2019. However, the evidence of record makes it at least as likely as not that the Veteran ceased work in December 12, 2018 as a result of his inability to secure or follow a substantially gainful occupation due to his service-connected disabilities. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The regulations provide that if there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. The Veteran currently meets, and has met throughout the course of his appeal, the schedular rating for a TDIU. The Veteran’s service-connected disabilities are major depressive disorder at 70 percent disabling; right knee at 20 percent disabling; GERD at 10 percent disabling; and noncompensable for scars; with a combined evaluation for compensation at 80 percent from June 24, 2015. Thus, for the period prior to April 6, 2019, the schedular criteria for TDIU have been met. 38 C.F.R. § 4.16(a). In his application (VA Form VA 21-8940), the Veteran indicated he worked full-time for the United States Post Office as a mail processing clerk from August 14, 1992 to December 12, 2018. See Veteran’s Application for Increased Compensation Based on Unemployability, received in December 2018. The Veteran later submitted another application with dates of employment as Mail Clerk from May 1, 1993 to April 5, 2019. See VA Form 21-8940 received in September 2020. The record shows employment information dated August 10, 2018 from the Veteran’s employer, US Postal Service, indicating the Veteran was currently employed full-time, with date of employment beginning May 1, 1993, number of hours worked 40 (full-time), and noted concession as “employee placed on limited duty on 11/01/2007”. The employer added that the type of work previously held was a letter carrier position, but the Veteran was transferred as a distribution clerk and special accommodation based on his disabilities. See VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits, received December 2018. The record shows a September 2018 statement from the Veteran’s treating VA psychologist indicating his “full and unequivocal support” of the Veteran’s application for disability retirement from the Federal Government service. See VA treatment record of September 2018. A VA psychology note of November 2018 shows the Veteran’s report that he submitted paperwork for early retirement. Id. A subsequent VA psychology note of January 2019 notes that the Veteran had “medical retirement from his job at the post office.” Id. The record shows a VA mental disorders examination of April 2019 where the examining VA physician noted “Veteran just separated from former job two months ago.” See VA examination of April 2019. The Board finds the Veteran’s statements made at the time of treatment to be credible and probative in demonstrating that he was in fact employed full-time at the post office, a job he held since 1993 until his medical retirement in December 2018. The Board further gives probative weight to the September 2018 statement of the Veteran’s treating psychologist supporting the Veteran’s early retirement. Taking all reports into account and resolving reasonable doubt in the Veteran’s favor, the Board concludes that December 12, 2018 is the proper date that entitlement arose, as the date that the Veteran ceased to work and became unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. (Continued on the next page) Accordingly, TDIU is granted for the period from December 12, 2018 to April 6, 2019. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.