Citation Nr: 21025230 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-48 479 DATE: April 27, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) prior to July 1, 2017 is denied. REMANDED Entitlement to service connection for right hand disability is remanded. Entitlement to service connection for left hand disability is remanded. Entitlement to an initial compensable rating for chronic sinusitis disability is remanded. FINDING OF FACT Prior to July 1, 2017, the evidence demonstrates that the Veteran had been able to maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to July 1, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1999 to September 2003, and with additional Reserve service. In his September 2017 substantive appeal, the Veteran requested a Board video conference hearing. However, in an August 2020 letter, the Veteran, through his representative, withdrew such request. Additional evidence was associated with the record since the agency of original jurisdiction (AOJ) issued the statement of the case in this appeal. However, in a September 2020 statement, the Veteran’s representative waived AOJ consideration of this evidence. The Reginal Office (RO) granted entitlement to TDIU, effective from July 1, 2017, in a January 2021 rating decision. As the claim for TDIU was based in part on sinusitis disability on appeal, the TDIU claim is part and parcel of the increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). As entitlement to TDIU has not been granted for the entirety of the appellate period applicable to the increased rating claim, the grant does not bifurcate the issue from the increased rating appeal. Harper v. Wilkie, 30 Vet. App. 356, 35962 (2018). As such, entitlement to TDIU prior to July 1, 2017, is also on appeal. As with entitlement to a TDIU, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). However, the Veteran does not have a single disability rated at 100 percent, even when considering TDIU. 38 U.S.C. § 1114 (s); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010); 38 C.F.R. § 3.350 (i). While the Veteran has been awarded a TDIU during the majority of the period on appeal, the January 2021 rating decision granted entitlement specifically stated that TDIU was being awarded based on the combined effects of the service-connected disabilities or conditions. 38 U.S.C. §§ 1114 (s); 38 C.F.R. § 3.350 (a). As such, the Board will not infer the issue of entitlement to SMC at this time. Entitlement to a TDIU prior to July 1, 2017 The present appeal includes the issue of entitlement to TDIU prior to July 1, 2017. On his application for TDIU, the Veteran reported that he was no longer able to work due to severity of his service-connected mental health and physical disabilities, including his chronic sinusitis disability, since May 2016. See Third Party Correspondence (May 2020), and VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (August 2020). VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such 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). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant’s nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the Veteran’s education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran’s earned 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. 38 C.F.R. § 4.16 (a). Marginal employment may also be established, on a fact found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). Consideration must be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). Importantly, where the evidence establishes that a veteran is gainfully employed on a full-time basis, a TDIU cannot be granted during this period. See Faust v. West, 13 Vet. App. 342 (2000); 38 C.F.R. § 4.16 (b) (establishing that it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled); see also Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (the economic component of substantially gainful occupation means 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.) In this case, the Veteran meets the threshold requirements for a TDIU prior to July 1, 2017. However, the preponderance of the evidence is against a finding that the Veteran was unable to obtain or maintain substantially gainful employment prior to July 1, 2017. The evidence of record includes a statement from the Veteran’s previous employer, which shows that the Veteran’s ending date of employment was on June 30, 2017. It was noted that although the Veteran had resigned early and had last worked on May 30, 2017. He received his last payment was for $1168.64 on June 26, 2017, which he received on September 5, 2017. It was also noted that the Veteran had earned $19,150.40 during 12-months preceding last date of employment (otherwise noted as since the beginning date of employment from October 3, 2016). See VA 21-4192 Request for Employment Information in Connection with Claim for Disability (August 2020). The RO awarded TDIU, effective from July 1, 2017, the date following end of his employment as shown on the August 2020 VA Form 21-4192 completed by his former employer. The Board notes that TDIU may be awarded even when a Veteran is employed if the employment is not substantially gainful or is protected. 38 C.F.R. § 4.16 (a). However, the August 2020 VA Form 21-4192 completed by his former employer reflects that the Veteran earned almost twenty thousand dollars during his employment from October 3, 2016 to June 30, 2016, which is in excess of the poverty threshold for one person as established by the US. Department of Commerce. See 38 C.F.R. § 4.16 (a); Faust, 13 Vet. App. at 356; Ray, 31 Vet. App. at 73. As such, the Board finds that the Veteran’s employment prior to July 1, 2017, was substantially gainful. Further, the evidence of record does not reflect that the Veteran employment was protected. The Veteran did not work in a family business or an otherwise sheltered environment. Rather, he last worked as a secondary teacher for a public school system, and his former employer specifically noted that no concessions were made to Veteran for reason of disability during his employment. See VA 21-4192 Request for Employment Information in Connection with Claim for Disability (August 2020). As such, the Board finds that the Veteran’s employment up to July 1, 2017 was not protected employment. As the evidence of record clearly shows that the Veteran was gainfully employed up to July 1, 2017, and such employment was substantially gainful and not protected, a TDIU prior to July 1, 2017, is not warranted in this case on any basis. 38 C.F.R. § 4.16 (a). As the preponderance of the evidence is against the claim the benefit-of-the-doubt rule is not applicable. 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. Entitlement to service connection for right hand disability and left hand disability are remanded. The Veteran seeks service connection for bilateral hand disability as a result of his period of service. He reports that he injured both hands when they were caught in between two floats while he was on a ship in the middle of ocean during a 24-hour fueling operation in Korea. He further reports that, since his hands were not broken at that time, the medical boat corpsman only told him to rest his hands for week. He also believes that he sustained injury to his hands due to vibration exposure from the use of vibrating machinery on a daily basis while performing his duties as a boatswain mate and coxswain in the maintenance of boats and buildings from 2000 to 2003. See VA 21-4138 Statement In Support of Claim (March 2015). To ensure that VA has met its duty to assist, remand is necessary for the following reasons. First, the Veteran’s service treatment records corroborate that he served in a position as a boatswain’s mate prior to his separation from service. See STR (May 2016). In addition, his DD-214 reflects his military occupational specialty, included “BM [boatswain’s mate] - infantry, gun crews, and seamanship specialist” during his active duty service. The record does not contain the Veteran’s service personnel records (SPRs), and the Board finds that those records may be helpful to determining the Veteran’s active service positions and duties in the adjudication of the Veteran’s bilateral hand claim. Second, VA has not yet obtained an examination or medical opinion in this matter, and VA’s duty to obtain a VA examination with a medical opinion has been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low). In this regard, the Veteran has reported that his bilateral hand disorder is manifested by numbness, pain, and muscle cramps, and VA treatment records show that he was assessed with bilateral hand pain. See CAPRI (April 2014). The Veteran has provided competent lay evidence of in-service injury. In addition, the Veteran has referenced information from Veterans Health Administration that there is exposure to vibration from the use of vibrating machinery, and it can cause hand-arm vibration syndrome, which includes symptoms of tingling, numbness, and pain in fingers/hands. See VA 21-4138 Statement In Support of Claim (March 2015). Given the foregoing, the Board finds that the Veteran should be afforded a VA examination to determine the nature and extent of his bilateral hand disability, and whether it had an onset during his periods of service, or is otherwise related to his service, to include reported bilateral hand injury and/or use of vibrating machinery. Entitlement to an initial compensable rating for chronic sinusitis disability is remanded. The Veteran contends that a compensable rating is warranted for his service-connected chronic sinusitis. See Third Party Correspondence (September 2020). He asserts that his sinus symptomatology, manifested by headaches, sinus pain and tenderness, purulent discharge, and non-incapacitating episodes, supports the assignment of a compensable rating throughout the appeal period. See Third Party Correspondence (September 2020). In his notice of disagreement (NOD), the Veteran reported that has had more than three incapacitating episodes due to his sinus disability which have required hospitalization and antibiotics with pain and purulent discharge. See NOD (February 2015). In conjunction with his NOD, the Veteran submitted private medical records showing that he was prescribed antibiotics to treatment acute sinusitis in July 2014. See Medical Treatment Record - Non-Government Facility (February 2015). He further reports that he has treated non-incapacitating episodes of chronic sinusitis disability with over-the-counter medication. See VA 21-4138 Statement In Support of Claim (March 2015). More recently, the Veteran contends that his chronic sinusitis disability has worsened since he was last evaluated by VA in November 2014. See Third Party Correspondence (September 2020). VA treatment records show that he sought emergency treatment in February 2017 for episode of acute maxillary sinusitis, and he was prescribed antibiotic and prednisone. See CAPRI (April 2017). The Board notes that the mere passage of time between a prior VA medical and the adjudication of a claim is not, in and of itself, sufficient to compel VA to provide a new examination. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). However, where record evidence indicates that a condition worsened since the prior examination, such that the record does not adequately reveal the present state of the disability, VA’s fulfillment of its duty to assist requires a new medical examination. Id. at 183. VA regulations state in relevant part: “Generally, reexaminations will be required if... evidence indicates that there has been a material change in disability or that the current rating may be incorrect.” 38 C.F.R. § 3.327 (a). It is noted that this standard may be satisfied based on a veteran’s assertion that his or her condition has worsened. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (finding the Board erred by not requiring a new medical examination after the veteran had presented medical evidence suggesting that his disabilities had worsened). Given that the evidence suggests a worsening of the Veteran’s chronic sinusitis disability since he was last evaluated by VA, a remand is necessary to adequately evaluate the current severity of his disability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s SPRs from the appropriate repositories of such records. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that such records do not exist or are otherwise unavailable, a formal finding of unavailability should be made and associated with the claim file. 2. Update claims folder with the Veteran’s VA treatment records dated from March 2017 to the present. 3. Schedule the Veteran for an examination by the appropriate clinician to assess the nature and etiology of his claimed right and left hand disabilities. The examiner must review the claims file. Detail the symptoms in service and thereafter, including the nature, onset, progression and severity of the Veteran’s reported symptoms. Then the examiner should address the following: (a.) Identify whether the Veteran has a current hand disability. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. (b.) Whether any current hand disability at least as likely as not had its onset during active service, or is otherwise related to an in-service injury, event, or disease. The examiner should address the Veteran's assertions that his current bilateral hand disorders are due to in-service injury, including a boating-related injury and/or result of regular use of vibrating machinery to perform his duties. See VA 21-4138 Statement In Support of Claim (March 2015). The examiner must provide a complete rationale for any opinion expressed. The medical opinion must support the conclusions reached and contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected chronic sinusitis disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.