Citation Nr: 21024726 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-11 824 DATE: April 26, 2021 ORDER A total disability rating based on individual unemployability (TDIU) prior to July 1, 2015 and from January 10, 2017 on an extraschedular basis is denied. An effective date prior to July 1, 2015 for the award of Dependents’ Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. Prior to July 1, 2015 and from January 10, 2017, the evidence of record does not demonstrate that the Veteran’s service-connected degenerative arthritis of the spine with intervertebral disc syndrome (IVDS) alone was of such nature and severity to preclude him from securing or following substantially gainful employment. 2. Prior to July 1, 2015, the Veteran did not have a total disability that was permanent in nature. CONCLUSIONS OF LAW 1. Prior to July 1, 2015 and from January 10, 2017, the criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for an effective date prior to July 1, 2015 for the award of DEA benefits have not been met. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to February 1973. In February 2020, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript is of record. These matters were remanded by the Board of Veterans’ Appeals (Board) in November 2020. TDIU Total ratings based on individual unemployability, referred to as TDIU, may be assigned in the first instance by the Board or the Regional Office (RO) when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be as ratable at 60 percent or more, and that, if there are two or more disabilities, here 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. See 38 C.F.R. § 4.16(a). For purposes of determining if the schedular threshold is met, “one disability” is defined as disabilities of one or both upper or lower extremities, including the bilateral factor; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In order to be awarded TDIU, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), “Marginal employment shall not be considered substantially gainful employment.” 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. According to the Census Bureau, the Poverty Threshold in 2012 was $11,945 for individuals under the age of 65; in 2013, it was $12,119; in 2014, it was $12,316; in 2015, it was $12,331; in 2017, it was $12,752; in 2018, it was $13,064; in 2019, it was $13,300; in 2020, it was $13,465. Poverty Thresholds, U.S. Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 1. Entitlement to a TDIU prior to July 1, 2015. The Veteran contends that his service-connected lumbar spine arthritis with IVDS alone prevented him from obtaining and maintaining substantially gainful employment prior to July 1, 2015. See February 2020 hearing transcript. The Veteran has a high school education and 2 years of college training. See July 2017 VA Form 21-8940. He reported that he last worked in approximately 2003 or 2004 as a manufacturing representative, and that he had been a computer salesman prior to then. See February 2020 hearing transcript. While it may appear that the Veteran was self-employed since February 2012, and received approximately $250 per month from the manufacturing company during the relevant period on appeal, the Board notes that the Veteran’s income during this period did not exceed the amount established by the U. S. Department of Commerce, Bureau of the Census as the poverty threshold in 2012, 2013, 2014, or 2015. As such, the Board finds that the Veteran’s self-employment during the relevant period on appeal to be marginal employment. The record shows that during the relevant period on appeal, the Veteran’s service-connected disabilities included lumbar spine arthritis with IVDS, rated 20 percent; tinnitus, rated 10 percent; and bilateral hearing loss, rated noncompensable. The combined evaluation was 30 percent. Therefore, the combined evaluation, as well as the Veteran’s lumbar spine arthritis with IVDS alone, failed to satisfy the schedular rating requirements for TDIU under 38 C.F.R. § 4.16(a). In December 2020, the Director denied TDIU on an extraschedular basis prior to July 1, 2015. Thus, the Board may now review the claim on an extraschedular basis. The Veteran’s VA treatment records document ongoing treatment for service-connected lumbar spine arthritis with IVDS throughout the relevant period on appeal. On May 2012 VA examination, a VA examiner noted that the functional impact of the Veteran’s lumbar spine condition included difficulty sitting, standing, walking for long periods of time, and difficulty lifting. In a July 2015 opinion, a private physician indicated that during the course of a work day, the Veteran would only be able to sit for 4 hours, stand or walk for 0 to 1 hour, and that it would be medically necessary or recommended for the Veteran not to sit, stand, or walk continuously in a work setting. The private physician opined that the Veteran would not be capable of performing gainful employment with the symptoms and limitations stemming from his spinal treatment, as he would be unable to tolerate sitting up to 6 hours in an 8-hour workday, even with breaks. The private physician specifically found that July 2015 was the earliest date that the description of symptoms and limitations in the opinion applied. In an April 2020 VA medical opinion, a different private physician opined that the Veteran’s lumbar spine “true” impairment likely started from January 2015, as that was the date that the Veteran sought treatment from the private physician who provided the July 2015 medical opinion. In a December 2020 advisory opinion, the Director found that the evidence of record failed to support the contention that any of the Veteran’s service-connected disabilities or a combination of the effects of the service-connected disabilities prevented gainful employment prior to July 1, 2015. The Director indicated that the benefits granted under the VA rating schedule are intended to compensate for the average impairment in earning capacity that results from service-connected disease or injury, and that a high rating in itself recognizes that the impairment makes it difficult to obtain and keep employment. The Director noted that the Veteran had multiple years of college training, which indicated an aptitude shown to be able to learn new skills. The Director explained that there are many jobs in the workplace that require only light activity and for which a person with a high school education would be capable of performing. The Director noted that the record showed that the Veteran was able to secure and follow substantially gainful employment if he was allowed to alternate between standing and sitting, which would be able to be accommodated in many less physically demanding jobs with adaptive equipment such as a sit/stand desk. After a thorough review of the record, the Board finds that the preponderance of the evidence shows that the functional limitations imposed by the Veteran’s service-connected lumbar spine arthritis with IVDS did not render him unable to secure or follow a substantially gainful employment prior to July 1, 2015. Regarding the April 2020 medical opinion stating that the Veteran’s “true” lumbar impairment likely began in January 2015 instead of July 2015, the Board emphasizes that the July 2015 private physician specifically found that July 2015 was the earliest date that the description of symptoms and limitations in the opinion applied. Accordingly, the April 2020 conclusion that the Veteran’s “true” lumbar impairment began in January 2015 is found to be without merit. The Board acknowledges the Veteran’s contention that he could not maintain any substantial gainful activity because of his service-connected lumbar spine arthritis with IVDS during the relevant period on appeal. However, the preponderance of the evidence establishes that the while the Veteran did have limitations as a result of his lumbar spine disability, and the Veteran’s employment was marginal, the lumbar spine limitations alone did not prevent him from securing or following a substantial gainful occupation. The record further reflects that such impairment has been adequately compensated by the assigned schedular ratings. Loss of industrial capacity is the principal factor in assigning disability ratings. See 38 C.F.R. § 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: “Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). While the Board does not wish to minimize the nature and extent of the Veteran’s limitation due to his service-connected lumbar spine arthritis with IVDS, the preponderance of the evidence does not support a finding that his service-connected lumbar spine arthritis with IVDS was sufficient to produce unemployability prior to July 1, 2015. The Board finds that the determination of the Director of Compensation not to grant extraschedular consideration for a TDIU prior to July 1, 2015 was proper. 2. Entitlement to a TDIU from January 10, 2017. From January 10, 2017, the Veteran’s service-connected disabilities included posttraumatic stress disorder (PTSD), rated 100 percent; lumbar spine arthritis with IVDS, rated 20 percent; radiculopathy, rated 20 percent; tinnitus, rated 10 percent; and bilateral hearing loss, rated noncompensable. As noted above, the Veteran’s income during this period did not exceed the amount established by the U. S. Department of Commerce, Bureau of the Census as the poverty threshold in 2017, 2018, 2019, or 2020. As such, the Board finds that the Veteran’s self-employment during the relevant period on appeal to be marginal employment. A 100 percent disability rating does not necessarily render the issue of a TDIU moot. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. Accordingly, the issue during the relevant period on appeal is whether the Veteran’s lumbar spine arthritis with IVDS alone rendered him unable to maintain substantially gainful employment. However, the schedular rating requirements for TDIU under 38 C.F.R. § 4.16(a) are not satisfied by the Veteran’s lumbar spine arthritis with IVDS rating alone. In December 2020, the Director denied TDIU on an extraschedular basis from January 10, 2017. Thus, the Board may now review the claim on an extraschedular basis. Throughout the relevant period on appeal, VA treatment records demonstrate ongoing treatment for lumbar spine arthritis with IVDS. In January 2017, the Veteran’s functional impact of his lumbar spine arthritis with IVDS was noted to include limited: prolonged sitting, standing, ambulation, bending, and twisting, with no heavy lifting, carrying, pushing, and pulling. In a November 2017 private medical opinion, received by VA in December 2017, the private physician noted that the Veteran’s pain and other lumbar spine impairment symptoms were severe enough to interfere with attention and concentration. The private physician noted that the Veteran would have to get up and move around every 1 to 2 hours, and he would not be able to sit down for another 5 to 10 minutes. The private physician estimated that the Veteran would be absent from work more than three times a month because of his lumbar spine impairment and found that the Veteran would not be able to perform gainful employment with the symptoms and limitations stemming from his spinal impairment. In a December 2020 advisory opinion, which has been detailed above, the Director found that the evidence of record failed to support the contention that any of the Veteran’s service-connected lumbar spine arthritis with IVDS alone prevented gainful employment from January 10, 2017. As indicated above, the Director explained that the benefits granted under the VA rating schedule are intended to compensate for the average impairment in earning capacity that results from service-connected disease or injury, and that a high rating in itself recognizes that the impairment makes it difficult to obtain and keep employment. The Director noted that the November 2017 medical opinion indicated that the Veteran was capable of working with certain limitations. The Director noted that the April 2020 medical opinion incorporated the Veteran’s psychiatric symptoms in determining that the Veteran was unable to secure or follow substantially gainful employment. The Board finds that the preponderance of the evidence shows that the functional limitations imposed by the Veteran’s service-connected lumbar spine arthritis with IVDS did not render him unable to secure or follow a substantially gainful employment from January 10, 2017. As noted above, the Board acknowledges the Veteran’s contention that he could not maintain any substantially gainful activity because of his service-connected lumbar spine condition during the relevant period on appeal. However, the preponderance of the evidence establishes that the while the Veteran did have limitations as a result of his lumbar spine disability, those limitations alone did not prevent him from securing or following a substantial gainful occupation. Significantly, as noted in the December 2020 advisory opinion, the November 2017 medical opinion indicated that the Veteran was capable of working with certain limitations to accommodate his lumbar spine condition. The Board finds this to be highly probative of the functional impairment rendered by the Veteran’s lumbar spine arthritis with IVDS. Moreover, the April 2020 medical opinions included the Veteran’s psychiatric conditions in determining that the Veteran was unable to secure or follow substantially gainful employment. As such, it is afforded little probative value. Accordingly, after weighing all the evidence of record, the Board finds that the Veteran’s lumbar spine arthritis with IVDS alone did not render him unable to secure or follow substantially gainful employment during the relevant period on appeal, and the determination of the Director of Compensation not to grant extraschedular consideration for a TDIU from January 10, 2017 was proper. 3. Entitlement to an effective date prior to July 1, 2015 for entitlement to DEA benefits. Basic eligibility for certification of Dependents’ Educational Assistance exists if the veteran: 1) was discharged from service under conditions other than dishonorable, or died in service and 2) has a permanent total service-connected disability; or had a permanent total service connected disability at the date of death; or died as a result of a service-connected disability. 38 C.F.R. § 3.807(a). In this decision, the Veteran’s claim for entitlement to a TDIU prior to July 1, 2015 was denied. Therefore, the Veteran did not have a permanent total service-connected disability prior to July 1, 2015, and basic eligibility for DEA benefits prior to July 1, 2015 is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, 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.