Citation Nr: 21024831 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-22 958 DATE: April 26, 2021 ORDER Prior to January 1, 2014, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. From January 1, 2014 to May 15, 2019, and from March 1, 2021, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the rules and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to January 1, 2014, the Veteran’s service-connected disabilities do not preclude him from securing or following substantially gainful employment. 2. From January 1, 2014 to May 15, 2019, and from March 1, 2021, the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to January 1, 2014, the criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. From January 1, 2014 to May 15, 2019 and from March 1, 2021, the criteria for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty in the United States Army from September 1965 to March 1968. The Veteran was awarded, among other decorations, the Purple Heart, the National Defense Service Medal, the Vietnam Service Medal, and the Combat Infantryman Badge. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran was afforded a hearing before a Veterans Law Judge. A transcript of the hearing is of record. In an April 2019 decision, the Board denied entitlement to a TDIU. Subsequently, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 Joint Motion for Remand (JMR), the Court vacated and remanded the April 2019 Board decision that denied entitlement to a TDIU. In February 2021, VA sent the Veteran a letter informing him that the Veterans Law Judge who conducted his hearing was no longer employed by the Board, and the Veteran was offered an opportunity for a new hearing. As of this date, the Veteran has not responded to this letter. Therefore, the Board will assume that the Veteran does not want another Board hearing. Entitlement to a TDIU prior to January 1, 2014; from January 1, 2014 to May 15, 2019; and from March 1, 2021. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 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 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). “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.” Additionally, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist on a fact-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated at 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities, or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In May 2019, the United States Court of Appeals for Veterans Claims (Court) held that when addressing whether a Veteran is entitled to an extraschedular TDIU rating, the Board must give attention to 1) the Veteran’s history, education, skill, and training; 2) whether the Veteran has the physical ability to perform the types of activities required by the occupation at issue; and 3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie 31 Vet. App. 58, 73 (2019). In Ray v. Wilkie, the Court explained that substantially gainful employment contains economic and noneconomic components. The economic component means “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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran’s: work history, education, skill, and training; the Veteran’s physical ability to perform work activities; and the Veteran’s mental ability to perform work activities required by the Veteran’s occupation. The Veteran’s service-connected disabilities include: (1) posttraumatic stress disorder (PTSD) rated at 50 percent from June 25, 2013; (2) right eye aphakia rated at 30 percent from March 8, 1968; (3) disfiguring scars of the face, residuals of shell fragment wound rated at 30 percent from March 8, 1968; (4) parasinusitis, maxillary, frontal, ethmoid rated at 10 percent from March 8, 1968; (5) adherent scar, left shoulder with retained metallic foreign bodies rated at 10 percent from March 8, 1968; (6) right supraorbital nerve neuralgia rated at 10 percent from March 8, 1968; (7) tinnitus rated at 10 percent from February 6, 1997; (8) hearing loss, sensorineural, left rated at 0 percent from March 8, 1968; (9) residuals of perforation of the left ear with acute otitis media rated at 0 percent from March 8, 1968; (10) intestinal parasites rated at 0 percent from March 8, 1968; (11) neck scar, residuals of tracheostomy rated at 0 percent from March 8, 1968; (12) surgical scar, infraumbilical associated with prostate cancer rated at 0 percent from May 15, 2019; (13) and prostate cancer with erectile dysfunction rated at 100 percent from May 15, 2019, and 0 percent from March 1, 2021. The Veteran was also granted entitlement to special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ from May 15, 2019. From May 15, 2019 to February 28, 2021, the Veteran was granted entitlement to special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) on account of prostate cancer with erectile dysfunction rated at 100 percent and additional service-connected disabilities of posttraumatic stress disorder, tinnitus, independently ratable at 60 percent or more from May 15, 2019 to February 28, 2021. For the period on appeal from May 15, 2019 to March 1, 2021, the issue of entitlement to a TDIU is moot. See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the Board will consider whether entitlement to a TDIU is warranted for the appeal period prior to May 15, 2019 and from March 1, 2021. The Veteran’s combined evaluation meets the requirements under 38 C.F.R. § 4.16(a) from June 25, 2013 (the date of claim) to May 15, 2019 and from March 1, 2021. Therefore, the Board must discuss whether the Veteran’s service-connected disabilities preclude him from being able to gain/maintain a substantially gainful occupation. The Veteran contends that as a result of his difficulties related to PTSD, he has not accomplished much in long-term career success. The PTSD diagnosis included symptoms of difficulty with dealing with stress, establishing and maintaining effective work and social relationships, mild to intermediate panic attacks (particularly when faced with high-level assignments with tight deadlines), sleep disorders to include intense flashback and sleep difficulty, anxiety, suspiciousness, and periods of depression. This affected his ability to perform job related tasks. See August 2014 VA Form 21-4138 Statement in Support of Claim. Most recently, in December 2020, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (application for a TDIU). On the application, the Veteran noted that his service-connected PTSD, aphakia of the right eye, facial scars, parasinusitis, neuralgia, and tinnitus prevented him from securing or following substantially gainful employment. The Veteran left his full-time employment as a software trainer and customer service representative with SunGard Public Sector, Inc. in July 2011, but worked for them on a contractual basis in 2013. For a couple of months in early 2014, the Veteran worked as a tax preparer. From 2014 to 2016, the Veteran worked part-time for his brother’s accounting company. In April 2014, the Veteran was afforded a VA examination for his PTSD. The VA examiner noted that the Veteran’s PTSD symptoms including dreams, intrusive memories, etc., created anxiety, that combined with the demands of a work environment and tended to immobilize him and make him less productive. The Veteran’s symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversations. The Veteran reported that he graduated college with a degree in economics and later earned an MBA. He worked in accounting for several large companies through his career. He had a hard time keeping up with the pace at work, often having difficulty managing work stress. The Veteran reported that he was laid off from a few jobs, quit some, and eventually ended up doing work off and on for a company as a staff accountant and sometimes as a consultant. He did some part-time work doing tax reports for a few years since his retirement. The examiner reported that the Veteran generally functioned well, when not under the demands to perform tasks, including work or other family demands. The Veteran’s symptoms were less than severe but impacted his functioning. In November 2015, the Veteran’s former employer, SunGard, completed and returned a VA Form 21-4192 Request for Employment Information. The employer reported that the Veteran worked full-time from January 17, 2005 until July 15, 2011 when he retired. The Veteran trained clients on how to use proprietary finance software. In November 2015, another former employer, an accounting firm, completed and returned a VA Form 21-4192. The employer reported that the Veteran worked part-time from February 3, 2014 to April 8, 2014. The Veteran worked 30 hours per week. He assisted with preparation of client federal, state, and local income tax returns. The Veteran earned $5,265.75 during the time he was employed there. The former employer noted that the Veteran’s position was part-time seasonal and temporary. The Veteran’s position was discontinued at the end of the 2014 income tax season. In a January 2016 VA treatment record, the clinician opined that the Veteran was unemployable for gainful employment activity. The Veteran’s neurobiological mechanisms that normally regulated stable mood and arousal had degraded to the extent that the Veteran required a very low stress lifestyle to assist him in maintaining a stable mood, arousal, and behavior. The clinician further opined that at that time in the Veteran’s life, minor challenges often exceeded his very modest stress and frustration tolerance limits, and elicited mental confusion and hyperarousal leading to fight or flight behavior. In January 2016, the Veteran was afforded a VA examination for his PTSD. The VA examiner stated that the Veteran’s PTSD symptoms included: depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran had been unable to find employment since his last VA examination primarily because he had struggled to adapt to technological changes in his industry. However, the examiner noted that the Veteran did not have problems with logical thinking and judgment. In the examiner’s opinion, the Veteran’s PTSD did not render him unable to secure and maintain substantial gainful employment. In January 2016, the Veteran had a VA examination for his eye condition. The VA examiner noted that the Veteran had aphakia of the right eye alone with peripheral corneal scarring and vascularization and some endothelial pigment with the central cornea remaining clear. However, the examiner noted that the findings appeared stable and that the Veteran had “good functional 20/20 correctable vision with an aphakic contact lens on his right eye.” The examiner marked “no” when asked if the Veteran had any incapacitating episodes attributable to any eye conditions and if the Veteran’s eye condition impacted his ability to work. In January 2016, the VA examiner continued the Veteran’s diagnoses for hearing loss and tinnitus. The examiner stated that the Veteran’s hearing loss and tinnitus impacted ordinary conditions of daily life, including ability to work. However, the Veteran’s word recognition scores were in excellent range. The examiner opined that the Veteran would do well in a work environment. In August 2016, the Veteran’s former employer, the retired Vice President of SunGard, submitted a letter on behalf of the Veteran. The Veteran’s former employer stated that during the time that the Veteran was employed with the company, the Veteran seemed to become increasingly reluctant to communicate with clients over the telephone and resisted providing online training using technology tools and communication. In February 2017, the Veteran was afforded another VA examination for his PTSD. The examiner stated that the Veteran’s PTSD symptoms included: chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; and disturbances of motivation and mood. However, the examiner stated that the Veteran had no signs of psychosis, passive suicidal thoughts, no homicidal ideation, adequate logical thinking abilities, and no problems with insight or judgment. The examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The February 2017 VA examiner for eye conditions diagnosed the Veteran with: aphakia, right eye; corneal edema, right eye; chorioretinal scar, right eye; glaucoma, left eye; dry eye, right eye; cataract, left eye; and detached retina, right eye. When asked about the impact of the Veteran’s eye disabilities on occupational function, the examiner stated that the Veteran’s chance of loss of vision would increase as he aged and that he required a lifetime of eye care with constant monitoring of pressure and soft contact lens wear. However, the examiner noted that the Veteran’s visual acuity was still correctable to 20/40 or better and marked “no” when asked both if the Veteran had any incapacitating episodes attributable to any eye conditions and if the Veteran’s eye condition impacted his ability to work. The Veteran also had a VA examination for his service-connected scars. However, the VA examiner noted that the Veteran’s scars did not impact his ability to work. The February 2017 VA examiner for hearing loss and tinnitus continued the Veteran’s diagnoses for hearing loss and tinnitus. The examiner stated that the Veteran’s hearing loss impacted ordinary conditions of daily life, including the ability to work; the Veteran told the examiner that he “can’t hear during conversation” and that “without hearing aids his marriage would be ruined.” However, the examiner marked “no” when asked if the Veteran’s tinnitus impacted ordinary conditions of daily life, including ability to work. In December 2020, the Veteran submitted a record of his earnings that was kept by the Social Security Administration (SSA). In 2013, the Veteran earned $54,547. In 2014, the Veteran earned $11,142. In 2015, the Veteran earned $5200, and in 2016, the Veteran earned $4934. In the years of 2017 and 2018, the Veteran did not earn anything. Based on the foregoing, the Board finds that the Veteran is not entitled to a TDIU prior to January 1, 2014; however, from January 1, 2014, the Veteran is entitled to a TDIU despite his part-time or seasonal employment. In 2013, the Veteran was working for SunGard Public Sector, Inc., on a contractual basis, for 40 hours per week. See December 2020 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. According to the Veteran’s SSA records, the Veteran earned $54,547. These earnings were above the poverty threshold level for a single person for 2013 ($11,888 per annum). Poverty Thresholds, U.S. Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The Board also finds that there is little to no evidence to suggest that any of the Veteran's previous employment qualified as marginal employment on a facts-found basis. Neither the Veteran nor his attorney has contended that any of his previous employment were considered a protected work environment. Accordingly, entitlement to a TDIU prior to January 1, 2014, is denied. From January 1, 2014, the Board acknowledges that the Veteran appears to have held part-time or seasonal employment for a short time. The Veteran’s earned income in the years of 2014, 2015, and 2016 was less than the poverty threshold for one person, as established by the United States Department of Commerce, Bureau of Census. Thus, his employment during those years counts as marginal employment for VA purposes. In reviewing the noneconomic factors including the Veteran’s work history, education, skill, and training, and his physical and mental ability to perform work activities, the evidence of record is at least in relative equipoise as to whether the Veteran is unable to work due to his service-connected disabilities. As for his education and training, the Veteran obtained a college degree in economics and an MBA. The Veteran held positions doing tax work and in customer service. However, the Board finds that the Veteran’s service-connected disabilities prevent him from following a substantially gainful occupation consistent with his education and work history. The Veteran’s service-connected disabilities, particularly his PTSD has limited his ability to function in a work environment. The Veteran’s PTSD symptoms included: depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. On his April 2014 VA examination for PTSD, the Veteran reported that he had a hard time keeping up with the pace at work, often having difficulty managing work stress. The Veteran reported that he was laid off from a few jobs, quit some, and eventually ended up doing work off and on for a company as a staff accountant and sometimes as a consultant. Further, the examiner concluded that the Veteran generally functioned well, when not under the demands to perform tasks, including work or other family demands. In a January 2016 VA treatment record, the clinician noted that the Veteran required a very low stress lifestyle to assist him in maintaining a stable mood, arousal, and behavior. The clinician further opined that at that time in the Veteran’s life, minor challenges often exceeded his very modest stress and frustration tolerance limits, and elicited mental confusion and hyperarousal leading to fight or flight behavior. Further, in an August 2016 statement, the Veteran’s former employer noted that the Veteran seemed to become increasingly reluctant to communicate with clients over the telephone and resisted providing online training using technology tools and communication. Additionally, the Veteran’s service-connected hearing loss made it difficult for him to hear conversations and thus communicate in a work environment. The Veteran’s service-connected disabilities limit him from adequately functioning in a work environment in his fields of education and training. (Continued on the next page)   Although not all the VA examinations reported that the Veteran was unable to work due to his service-connected disabilities, the Board notes that VA has the ultimate decision on entitlement to a TDIU and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). The Board has considered the Veteran’s lay statements and all medical evidence of record and finds that the evidence is at least in relative equipoise as to whether his service-connected disabilities prevent him from following substantially gainful employment. The reasonable doubt rule must be applied to the claim, and thus, the claim must be resolved in favor of the claimant. Thus, entitlement to a TDIU for the appeal period from January 1, 2014 to May 15, 2019, and from March 1, 2021, is granted. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.