Citation Nr: 21023784 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-20 606 DATE: April 21, 2021 ORDER Prior to September 28, 2018, entitlement to a total disability rating due to individual unemployability (TDIU) is denied. REMANDED Entitlement to a rating higher than 10 percent for the service-connected anemia is remanded. Entitlement to an effective date earlier than April 15, 2016 for the grant of service connection for the service-connected anemia is remanded. Beginning September 28, 2018, entitlement to a TDIU is remanded. FINDING OF FACT Prior to September 28, 2018, the Veteran was substantially and gainfully employed. CONCLUSION OF LAW Prior to September 28, 2018, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1990 to September 1991. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran requested a Central Office in Washington, D.C. but withdrew her hearing request in May 2020 correspondence. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to a TDIU Prior to September 28, 2018 The Veteran asserts that she is unable to secure and follow a substantially gainful occupation as a result of the service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with her education and occupational experience, by reason of her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting “the Board finds that sedentary employment is a job where the worker primarily sits down. Webster’s II New College Dictionary 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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 or more. 38 C.F.R. § 4.16(a). Here, the evidence shows that prior to September 28, 2018, the Veteran was, in fact, employed full time as a management analyst for a federal agency. The Veteran’s last day of work was on September 28, 2018. See October 2018 letter. There is no indication from the record that her employment before September 28, 2018 was not substantial or not gainful. The Veteran provided her 2018 W-2 from her primary employer, which showed income of $84,712 for 2018 and a 2018 statement from her secondary employer showing net income around $6,000, which is well above the poverty level for a single person. Although the Veteran was afforded reasonable accommodations at her primary employer, the evidence shows that she only lost 7.3 hours of income to leave without pay in 2018 due to her service-connected disabilities. Thus, as she was gainfully employed until September 28, 2018, her service-connected disabilities clearly did not render her unable to secure and follow gainful employment in a variety of settings before that date. Further, there are no unusual or exceptional service-connected disability factors present before September 28, 2018. A TDIU is not warranted when the Veteran is employed in gainful and substantial employment, and a claim for a TDIU prior to September 28, 2018 is denied. REASONS FOR REMAND A remand is necessary to obtain outstanding medical treatment records, to provide the Veteran with a new VA examination for the service-connected anemia, and to adjudicate the issue of entitlement to a TDIU beginning September 28, 2018. In addition, a remand is necessary for the RO to issue a statement of the case for the claim for earlier effective date for the grant of service connection for anemia. Increased Rating for Anemia The Veteran initially asserted that her anemia warranted a rating higher than 10 percent. In January 2021, the Veteran expressed satisfaction with the 10 percent rating assigned for the service-connected anemia, but she did not communicate clear intent to withdraw the claim in writing. Therefore, the Board will continue to adjudicate the appeal for a rating higher than 10 percent for the service-connected anemia. At the time the Veteran filed the claim, iron deficiency anemia disabilities were evaluated under Diagnostic Code 7700. On October 29, 2018, VA issued a final rule revising 38 C.F.R. § 4.117, the portion of the VA Schedule for Rating Disabilities that addresses the hemic and lymphatic systems, effective December 9, 2018. The final rule updated medical terminology, added certain hematologic diseases, and provided detailed and updated criteria for evaluating conditions pertaining to the hematologic and lymphatic systems. The rule removed Diagnostic Code 7700 (Anemia, hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia) and added separate diagnostic codes (7720-7723) for the four major types of anemia that are neither hereditary nor secondary (addressed under the diagnostic code for the causative condition). When a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change if the application would not produce retroactive effects. See VAOPGCPREC 7-03. If application of an amended regulation has a retroactive effect, then the regulation cannot be applied. Rodriguez v. Peake, 511 F.3d 1147, 1153 (Fed. Cir. 2008). Even if the amended versions are more favorable, the amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. See VAOPGCPREC 3-00; 65 Fed. Reg. 33,422 (2000); see also Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). A review of the record indicates the most recent VA treatment records associated with the claims file are dated February 2019. The most recent hemoglobin level reported in the VA treatment records currently associated with the claims file are dated February 2018 as part of the VA anemia examination. Therefore, on remand, the RO should obtain any outstanding pertinent VA treatment records after February 2019, to include specifically any pertinent hemoglobin levels and any records of prescribed oral iron or intravenous iron treatments and associate them with the claims file. Furthermore, the most recent VA examination was completed in February 2018, before the regulations changed. On remand, an additional VA examination for the anemia disability should be obtained to address the new rating criteria for anemia after December 9, 2018. Earlier Effective Date for the Grant of Service Connection for Anemia By way of procedural history, the RO awarded service connection for anemia as secondary to the service-connected menstrual disorders in a June 2017 rating decision and assigned a 10 percent rating effective April 15, 2016. The Veteran submitted a timely September 2017 notice of disagreement as to the initial rating assigned to the anemia disability. In November 2017, the Veteran submitted a second timely notice of disagreement as to the assigned effective date for the award of service connection. In January 2021, the Veteran clarified that her primary disagreement was not with the assigment of an initial 10 percent rating, but instead, she intended to appeal the effective date of the award of service connection. She contends that the effective date for the grant of service connection should have been the date of her original service connection claim for anemia in 1993. The RO issued a May 2019 statement of the case (SOC), but it only addressed whether an initial rating higher than 10 percent was warranted for the anemia disability. An SOC has not yet been issued adjudicating her appeal for an effective date earlier than April 15, 2016 for the award of service connection for the anemia disability. On remand, an SOC should be issued and sent to the Veteran and her representative. Entitlement to a TDIU Beginning September 28, 2018 The Court has held that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). This duty to maximize benefits requires VA to assess all a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement SMC under 38 U.S.C.§ 1114. See Bradley v. Peake, 22 Vet. App. 280 (2008). The Court held in Bradley, that there could be a situation where a veteran has a schedular total rating for a service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114(s) by having an “additional” disability of 60 percent or more (“housebound” rate). Id.; 38 U.S.C. § 1114(s). Thus, Bradley made it such that even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. As discussed above, the Veteran was approved for disability retirement with September 28, 2018, as her last day of employment. Beginning September 29, 2018, the Veteran’s service connected disabilities were rated as follows: unspecified depressive disorder (rated at 100 percent, effective January 9, 2018); irritable bowel syndrome (rated at 30 percent, effective June 15, 2015); status post hysterectomy, left salpingectomy-oophorectomy (rated at 30 percent, effective March 1, 2018); tinnitus (rated at 10 percent, effective August 4, 2014); anemia (rated 10 percent, effective April 15, 2016); and abdomen scars, secondary to the service-connected hysterectomy (rated as noncompensable, effective November 21, 2017). Beginning September 29, 2018, excluding the 100 percent rating assigned for the service-connected psychiatric disability, the Veteran’s combined disability rating for the service-connected disabilities is only 60 percent, which does not meet the schedular criteria for a TDIU. A review of the Veteran’s record shows that she was awarded SMC under 38 U.S.C. § 1114(s), but only for a finite period between November 21, 2017, and February 28, 2018. As SMC under 38 U.S.C. § 1114(s) has not been awarded after September 28, 2018, the date the Veteran was last substantially and gainfully employed, entitlement to a TDIU is not moot. Beginning September 29, 2018, although the grant of a 100 percent disability rating for the Veteran’s psychiatric disability renders any current claim of TDIU moot, the Board notes that a grant of a higher rating for the Veteran’s service-connected anemia could affect entitlement to a TDIU on the basis of a special monthly compensation. Therefore, the service connection claims and the TDIU claim are inextricably intertwined, and a decision by the Board on the claim for TDIU would, at this point, be premature. Additionally, a remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. As discussed above, the Veteran does not currently meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider her claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, there is a reasonable possibility that she is unemployable by reason of service-connected disabilities, excluding the psychiatric disability currently rated at 100 percent. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and severity of the anemia disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. 3. Send the Veteran and her representative a statement of the case that addresses the issue of entitlement to an effective date earlier than April 15, 2016 for the award of service connection for the service-connected anemia. If, and only if, she submits a timely substantive appeal in response to the SOC, thereby perfecting her appeal as to this claim, it should be returned to the Board for further appellate consideration. 4. Thereafter, readjudicate the remanded increased rating claim and entitlement to a TDIU from September 28, 2018, to include an extraschedular consideration if the Veteran does not meet the schedular criteria. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.