Citation Nr: 21024584 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 20-18 846 DATE: April 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is restored from January 1, 2019. Entitlement to Dependents’ Educational Assistance (DEA) is restored from January 1, 2019. FINDINGS OF FACT 1. The Veteran has not been employed since February 2018. 2. From September 2016 to February 2018, the Veteran’s employment was marginal. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the termination of his TDIU was not proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). 2. Resolving reasonable doubt in the Veteran’s favor, the termination of his DEA benefits was not proper. 38 U.S.C. §§ 3500, 3510; 38 C.F.R. §§ 3.807(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from September 1974 to September 1976 and April 1982 to January 2006. His decorations include the Bronze Star Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In April 2021, the Veteran testified at a video-hearing before the undersigned. 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). Reinstatement of a TDIU and DEA is proper The Veteran contends that he is entitled to restoration of a TDIU and DEA from January 1, 2019. Resolving all reasonable doubt in favor of the Veteran, the Board agrees. A TDIU is warranted where the evidence of record shows that a Veteran is unable to secure or follow a substantially gainful occupation, consistent with her education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In general, if there is only one such disability, it must be rated 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 sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60-percent disability, or one 40-percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Throughout the entire appellate period the Veteran has been rated at a combined 90 percent rating with a single 70 percent rating for his service-connected posttraumatic stress disorder. As such, the Veteran meets the schedular requirements for a TDIU. 38 C.F.R. § 4.16(a). For purposes of DEA benefits under 38 U.S.C. Chapter 35, the law relevant to the Veteran’s current claim provides that basic eligibility exists where the Veteran was discharged from service under conditions other than dishonorable and has a total disability permanent in nature as a result of a service-connected disability. 38 U.S.C. § 3501(a)(1); 38 C.F.R. §§ 3.807(a), 21.3021. The Veteran was awarded a TDIU and DEA in a January 2012 rating decision. Based on the evidence of record, entitlement to a TDIU was granted by the RO because the Veteran met the schedular requirements and was found to be unable to secure or follow a substantially gainful occupation as a result of all of his service-connected disabilities. DEA was granted because the evidence showed that the Veteran had total service-connected disabilities, which were determined to be permanent in nature. When reducing an award of TDIU under 38 C.F.R. § 3.343(c), the provisions of 38 C.F.R. § 3.105(e) also apply. 38 C.F.R. § 3.105(e) allows for a reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. First, there must be a rating action proposing the reduction, giving a veteran 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested, and reduction is still warranted, a rating action will effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which the 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). In July 2017 rating decision, the RO proposed a discontinuance of the Veteran’s TDIU and DEA. The RO asked the Veteran to submit a completed VA Form 21-4140, Employment Questionnaire. In August 2017, the Veteran submitted a completed VA Form 21-4140 in which he indicated that he was working 6 hours per week at Snow Ponds Academy and earning $720.00 a month from October 2016 to July 2017. In a May 2018 rating decision, the RO continued the Veteran’s TDIU and DEA due to the Veteran submitting the August 2017 VA Form 21-4140 and the RO concluding that the Veteran was not substantially employed. In September 2018, VA requested that the Veteran submit a new VA Form 21-4140 in order explain earned wages in 2017. The form notified the Veteran that the information was needed to determine his continued eligibility to TDIU benefits, that he was required to return the completed form within 60 days, and that his benefits could be reduced if the form was not returned within 60 days. Additionally, the Veteran was informed of his right to request a predetermination hearing. The form was sent to the Veteran’s address of record and was not returned as undeliverable. The Veteran did not return a completed Form 21-4140 within 60 days. The procedural requirements of 38 C.F.R. § 3.105(e) have been met in this case. In January 2019, VA discontinued the Veteran’s TDIU and DEA based on the failure of the Veteran to submit a new VA Form 21-4140. The RO noted that if a VA Form 21-4140 was submitted by the Veteran, his TDIU would be reconsidered. Once the procedural requirements of 38 C.F.R. § 3.105(e) are met, actual employability must be established by clear and convincing evidence. 38 C.F.R. § 3.343(c)(1). The “clear and convincing” standard requires that capacity for work be proven to a “reasonable certainty” but not necessarily be “undebatable.” Vanerson v. West, 12 Vet. App. 254, 258 (1999). The clear and convincing standard of proof is an intermediate standard between preponderance of the evidence and beyond a reasonable doubt. Fagan v. West, 13 Vet. App. 48, 55 (1999); Olson v. Brown, 5 Vet. App. 430, 434 (1993). In November 2019, the Veteran’s former employer confirmed that the Veteran was employed at Maine Arts Academy (formerly Snow Pond Academy) from September 2016 to February 2018. That same month, the Veteran reiterated that he only worked 6 hours per week and only during school months. In April 2020, the Veteran submitted a completed VA Form 21-4140 in which he indicated that he had not worked in the previous 12 months. In April 2021, the Veteran credibly testified that had not worked since 2018, during which time he earned $720.00 a month, and had no intention of finding further employment. The Board finds that restoration of the Veteran’s TDIU from January 1, 2019 is warranted. As noted above, in April 2020, the Veteran indicated that he had not worked in the previous 12 months. The Veteran’s previous employer confirmed that he last worked for them in February 2018 and the Veteran credibly testified that he only earned $720.00 a month, while working 6 hours a week during this period of employment. As the RO previously found this work to be marginal employment and the Veteran has not worked in the past 12 months, the Board finds that the weight of the evidence does not establish on the clear and convincing standard of the capacity of the Veteran to obtain a substantially gainful occupation. Therefore, the Board finds that decision to terminate the Veteran’s award of TDIU was improper. A TDIU is reinstated effective January 1, 2019. (continued on next page) Additionally, as the Veteran’s TDIU has been reinstated and the termination of the Veteran’s DEA benefits was based upon the RO’s improper termination of the Veteran’s TDIU, the Veteran’s DEA benefits are reinstated effective January 1, 2019 as well. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.