Citation Nr: 21028275 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-28 071A DATE: May 10, 2021 ORDER An effective date of February 28, 2015, and no earlier, for the grant of a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. An effective date of February 28, 2015 for eligibility for Dependents' Educational Assistance (DEA) is granted, subject to the laws and regulations governing the award of monetary benefits is granted. FINDINGS OF FACT 1. Credible evidence shows that the Veteran was unable to engage in substantially gainful employment due to his service-connected disabilities as of February 28, 2015. 2. The Veteran was honorably discharged from his service, and the evidence is sufficient to support a TDIU from February 28, 2015, which renders him eligible for DEA benefits from that date. CONCLUSIONS OF LAW 1. The criteria for an effective date of February 28, 2015, but no earlier, for the grant of a TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16. 2. The criteria for assignment of an effective date of February 28, 2015, but no earlier, for DEA benefits are met. 38 U.S.C. § 3501 (2012); 38 C.F.R. § 3.807 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1961 to June 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2018 by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. At the hearing, the Veteran indicated that he had spoken to his representative the day before and he chose to proceed with the hearing without his representative present. A transcript of the hearing is associated with the claims file. 1. Earlier Effective Date TDIU The Veteran seeks entitlement to an effective date of between June 6, 2014 and February 28, 2015, for the award of a TDIU. He contends that his service-connected disabilities affected his employment in June 2014 and that he last worked in February 2015 when his service-connected disabilities rendered him unable to continue employment. For the reasons below, the Board agrees that he is entitled to an effective date of February 28, 2015. The effective date provisions for awards of increased disability compensation include a general rule which is that an award based on a claim for increase of compensation shall be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000) (holding that a claim for TDIU is a claim for an increased rating and the effective date rules for increased ratings apply to a claim for TDIU). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. 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). The issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341 (a), 4.19. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Factors to be considered are the veteran's education, employment history and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. While the term "substantially gainful occupation" does not set a clear numerical standard for determining TDIU, it does indicate an amount calculated at less than 100 percent. See Roberson, supra. Generally, marginal employment 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. 38 C.F.R. § 4.16(a); Faust v. West, 13 Vet. App. 342, 355-56 (2000) ("substantially gainful employment" for TDIU purposes is met where the annual earned income exceeds the poverty threshold for "one person," irrespective of the number of hours or days actually worked and without regard to any prior income history). Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (Lance, J., concurring) ("Where a claimant's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the claimant to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer."). Marginal employment may also be held to exist on a facts-found basis, including when employment resulting in earned annual income exceeding the poverty threshold for one person was performed in a "protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16(a). The Veteran was initially granted TDIU in a March 2018 rating decision, effective July 1, 2015, the date that the Veteran's VA Form 21-4192 indicated that he last worked. The Veteran claims TDIU is warranted from June 6, 2014 at the earliest to February 28, 2015, when he was hospitalized. The question before the Board, therefore, is whether the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment during the period between June 6, 2014 to February 28, 2015. A March 2015 rating decision granted service connection for the Veteran's diabetic nephropathy with hypertension as secondary to his service-connected diabetes mellitus type II with erectile dysfunction with an evaluation of 60 percent, effective June 6, 2014, the date he first applied for service connection for the disability. This raised his combined evaluation to 80 percent. Thus, the Veteran meets the minimum percentage requirements of 38 C.F.R. § 4.16 (a) as of the earliest date that he seeks. The Veteran was initially granted TDIU in a March 2018 rating decision, effective July 1, 2015, the date the Veteran's VA Form 21-4192 indicated he last worked. The Veteran claims TDIU is warranted from June 2014 at the earliest to February 28, 2015, when he was hospitalized. The question before the Board, therefore, is whether the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment as of June 6, 2014 to February 28, 2015. The Veteran indicated on VA Form 21-8940 that he worked full time until July 15, 2015, and also that is when his disability affected full-time employment. The Veteran's July 2015 VA Form 21-4192 indicates that the last day that he worked and the last day that he was paid was June 30, 2015. The form also states that he was hospitalized from March to April 2015. The Veteran testified, however, that his representative filled out the form and used the date that the Veteran sold his business as the end of employment rather than when the Veteran actually stopped working. The period from June 6, 2014 to June 30, 2015 does not qualify as marginal employment based on income because the Veteran's stated earned annual income exceeded the poverty threshold for one person. See 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. Id. This includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The Veteran was employed at a self-owned business; thus, the focus turns to whether the Veteran's self-employment constituted a protected work environment. In Cantrell v. Shulkin, 28 Vet. App. 382 (2017), the Court noted that the VA had not defined the terms "sheltered" or "protected" work environment. In Faust v. West, 13 Vet. App. 342 (2000), the Court looked to guidance from social security regulations defining the similar concept of "substantially gainful activity" as work involving significant productive physical or mental duties that is done for pay or profit. Id. at 356. The Court went on to affirm the Board's denial of TDIU where a Veteran had engaged in part-time work that resulted in earnings which exceeded the poverty threshold for one person. The Court noted that SSA regulations clearly provide that part-time work may be substantial even if a claimant is paid less or given less responsibility. Id. at 356. The Court held that where a veteran is employed with annual income that exceeds the poverty threshold for one person, that is evidence of substantially gainful employment "irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's prior earned income..." Id. As to the contention that his TDIU should be effective from June 6, 2014, the Veteran testified that he started working on a part time basis at that time due to his disabilities. The Veteran testified that he hired additional staff to complete tax returns. He testified that he was capable of signing the returns and overseeing the bookkeeper from a chair. The record supports the Veteran's contention that his disabilities worsened at that time. In addition to service connection for diabetic nephropathy with hypertension, the March 2015 rating decision also granted the Veteran separate evaluations for bilateral knee extension effective June 6, 2014 and increased evaluations for other conditions. As to the contention that his TDIU should be effective no later than February 28, 2015, the Veteran testified that after his fall in February 2015, he was hospitalized and in a wheelchair and could not meet with clients and conducted business by phone. That is when he stopped working and started to prepare the sale of his business. After June 6, 2015, the Veteran adjusted the way he performed his duties. Specifically, he reduced his hours, performed less complicated work, and required more time to complete his work. Nevertheless, he was performing the productive duties for clients for pay. The Veteran oversaw his bookkeepers, reviewed their work, and ultimately signed the completed tax returns. There is no indication that his tax preparation services were retained by clients as part of a charitable, therapeutic, or governmental aid program for handicapped individuals. Likewise, there is no indication that his clients would have paid him had he not performed the specified tax preparation work in an acceptable manner. This evidence heavily favors the conclusion that his self-employment prior to February 28, 2015 amounts to substantially gainful employment, and not employment in a protected environment. After the Veteran was hospitalized in February 2015, his business continued to pay him in an amount that exceeded the poverty threshold. However, in light of the Veteran's consistent credible statements and the supporting evidence of record, the Board finds the Veteran was unable to maintain substantially gainful employment from February 28, 2015 due to his service-connected disabilities. From that point, he continued to be paid because he was in a protected work environment. As such, an earlier effective date for TDIU is granted, from February 28, 2015. 2. Earlier Effective Date DEA The Veteran was granted eligibility for Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35, effective July 1, 2015 due to his receipt of a TDIU due to his service-connected disabilities. As the Board herein grants an earlier effective date for TDIU of February 28, 2015, the effective date for the grant of eligibility for DEA benefits under 38 U.S.C. Chapter 35 should also be changed to February 28, 2015. Accordingly, an earlier effective date of February 28, 2015 is granted for eligibility for DEA benefits under 38 U.S.C. Chapter 35. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals J. Morgan, Attorney for the Board Department of Veterans Affairs 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.