Citation Nr: 21039756 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-21 671 DATE: July 1, 2021 ORDER Entitlement to an earlier effective date for the grant of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to February 29, 2012 is denied. FINDING OF FACT Prior to February 29, 2012, the Veteran had not been shown to be unable to obtain or maintain substantially gainful employment due to his service-connected disabilities and his employment was not considered to be marginal or a protected work environment. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for the grant of entitlement to a TDIU prior to February 29, 2012 have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16, 4.18, 4.19, 4.23. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1982 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a Board hearing in February 2020. The transcript has been associated with the record. 1. Entitlement to an earlier effective date for the grant of TDIU prior to February 29, 2012 The Veteran has already been awarded entitlement to a TDIU for the appeal period starting from February 29, 2012. The Veteran appealed the grant of entitlement to a TDIU for an earlier effective date. The Veteran asserts that starting in 2009 until 2012 he had marginal employment and thus is entitled to a TDIU starting in 2009. With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of the claim, or the date entitlement arose. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability has occurred within one year from the date of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. §§ 3.400 (o)(1), (2). Therefore, the ultimate question in determining the effective date for TDIU is when it was factually ascertainable that the service-connected disabilities rendered a veteran unemployable. 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, this disability shall be ratable at 60 percent or more, and that, 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). Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 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, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). The Court recently defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means that the occupation must be one where the veteran can earn 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). In a TDIU analysis, a veteran's particular circumstances must be addressed to determine his capabilities for employment his educational and vocational attainment, his training, his work history, and all other factors having a bearing on the issue. Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). For example, the fact that a veteran may be physically able to perform sedentary employment does not mean that he is educationally and vocationally qualified to perform such employment. Id. at 294. As further provided by 38 C.F.R. § 4.16 (a), "marginal employment shall not be considered substantially gainful employment." For purposes of TDIU, 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. Prior to February 29, 2012, the Veteran was service-connected for the following disabilities: degenerative disc disease at 10 percent disabling from February 15, 1995 and at 20 percent disabling from March 2, 2004; right shoulder disability at 10 percent disabling from February 15, 1995, at 20 percent disabling from February 9, 2009, 100 percent disabling from February 5, 2010, and 20 percent disabling from April 1, 2010; left knee chondromalacia patella at 10 percent disabling from February 15, 1995; left knee laxity at 10 percent disabling from February 9, 2009; right knee chondromalacia patella at 10 percent from February 15, 1995, 100 percent disabling from August 7, 2009, and 10 percent disabling from November 1, 2009; left ankle recurrent sprains which was noncompensable from February 15, 1995; and tonsillectomy which was also noncompensable starting from February 15, 1995. The Veteran's overall combined evaluation was 40 percent from February 15, 1995 and 60 percent from February 9, 2009 with temporary total disability evaluations from August 7, 2009 to October 31, 2009 and from February 5, 2010 to March 31, 2010. In a March 2004 VA examination, the examiner noted that the Veteran's low back pain was aggravated by prolonged sitting, prolonged standing, by walking two block or more, and by lifting 30 pounds or more. The examiner furthered that the Veteran's right shoulder pain was aggravated by using a computer and with prolonged writing. In the August 2008 rehabilitation application, the Veteran mentioned that he was unable to do what he used to do due to his disabilities and that he would like to obtain more education to become more employable. In the employment history section, the Veteran reported that he was a real estate associate broker from February 1994 and that his average monthly salary varied from 1,000 dollars, to 2,000 dollars and to 25,000 dollars. He mentioned that he left due to poor market and because of his disability. The form also reported that the Veteran obtained his GED in 1982 and that he attended college for two years. He listed that he had a real estate broker license. In the August 2008 counseling interview, it was noted that the Veteran was working as a real estate agent but that he was not making enough income to meet his financial needs. The Veteran reported that over the past two to three years his income decreased from $40,000 to $10,000. The Veteran furthered that some of the decline in his income was due to the economy, but that it was more importantly due to his disabilities. He explained that he has difficulty since he has to climb stairs. The Veteran reported that he felt pain for years doing the job but felt at that moment he could no longer do the job and does not have any transferable skills to move to another career. The Veteran underwent a vocational assessment in September 2008. It listed that the Veteran earned his GED in 1982 and that he attended pierce College where he studied real estate. It reported that the Veteran had a real estate broker's license but did not want to perform the associated physical requirements of the job like climbing stairs and constantly going in and out of cars. The Veteran reported that his computer skills were at the intermediate level and that his educational goal was to earn a bachelor's degree to prepare for a new career. The assessment noted that the Veteran was employed by R.M. and that he sold real estate since February 1994. It also noted that because of the Veteran's health issues and pain, having to climb up and down stairs, stand for long periods, and move in and out of vehicles were uncomfortable for him so he would like to transition into another career. Vocational recommendations were made based on the Veteran's education, work experience, tested abilities, and interests. The suggestions were to be an elementary teacher, a respiratory therapist, adult education teacher, and career and technical education teacher. In the February 2009 VA back examination, the Veteran reported that he worked in real estate and that he was able to work his schedule around the pain he experienced. The Veteran reported that his right shoulder would aggravate if he had his arm up on the steering wheel and that he was unable to lift anything overhead. He furthered that he could not carry his briefcase or a backpack on that shoulder. He furthered that he used a brace for his knees when he knew he would be going up and down the stairs. The examiner indicated that the Veteran was able to self-care. The Veteran indicated that that he was an independent contractor in real estate and that every two to three days he would not want to go work because of his knee or back. He furthered that he had significant problems with standing for long periods of time with clients or even sitting at a desk to fill out paperwork. The Veteran started vocational rehabilitation in June 2009 to prepare for employment as a social services worker by obtaining a degree in psychology through the University of Phoenix. In the July 2009 VA examination, the Veteran reported that he was only working two days a week and was probably losing six weeks of work out of the year. He furthered that he had a hard time getting up and down the stairs or getting in and out of his car. The Veteran was afforded another VA examination in March 2011 where the examiner indicated that the Veteran was able to self-care and that he cleans his own house. He reported that he still went hunting but that he no longer golfed or went bowling because of his knees and back. The Veteran reported that he was working in real estate as an agent, but that he was out of work since November 2010. He explained that he did not feel like working anymore and that he would hurt going up and down the stairs when showing his clients houses. He furthered that he could not keep up with his clients. He also reported that he was studying psychology in college. A VA treatment record from March 2011 reported that the Veteran went back to work as a realtor for Caldwell Banker and that he wanted to earn the big bucks right away even though he had not been consistently working for the past three years. The Veteran mentioned that if he was unable to work in real estate, he would pursue a graduate degree and work in psychology. In a November 2011 VA treatment record, the Veteran indicated that he worked four days a week as a substitute teacher, that he finished his psychology degree, and was starting his MBA. In a February 2012 Board hearing, the Veteran reported that he missed at least a day a week due to his knee problems and a day due to his back problems. In a January 2014 statement, the Veteran reported that from 2010 to 2012 he attempted to work with three separate real estate companies but was asked by each of them to leave due to his inability to be on time, deal with clients, and meet contractual standards in accordance with the company's standard operating procedures. He furthered that the inability to work satisfactorily was directly related to his service-connected disabilities and that he became completely unemployable in February 2013. He furthered that in 2009 he went back to school and graduated with a psychology degree in 2011. He explained that since 2011 he had applied for over 50 positions and interviewed for 15 places. He explained that because of his service-connected disabilities he applied for sedentary positions. He claimed that he was unemployable to due to his service-connected disabilities, including all physical labor and sedentary positions. The Veteran also submitted an application for increased compensation based on unemployability in January 2014. He indicated that his depression and extreme pain in both knees, lower back, and right shoulder prevented him from securing or following any substantially gainful occupation. He indicated that in February 2011 his disability affected his full-time employment. He furthered that he last worked full-time in April 2011 and that he became too disabled to work in February 2012. He also indicated that he worked with R.E. from March 2008 to February 2012, K.W. from January 2012 to November 2012, and E.R. Real Estate from November 2012 to March 2013. He indicated that he left his last job because of his disability and that he had tried to obtain employment since he became too disabled to work. The form indicated that the Veteran had a college degree in psychology and that he also had a real estate sales license which he surrendered in February 2013. He noted that he applied for over 50 positions in mostly sedentary in nature and that he interviewed for over 15 and had not been offered a position. In the request for employment information by K.W., the employer indicated that the Veteran failed to meet the company standards of productivity and that he was continuously late. E.R. also reported that the Veteran could not perform real estate responsibilities as per company standards. The Veteran submitted his tax records which indicated that he earned $121,265.50 in 2006, $78,740.22 in 2007, $31,644.30 in 2008, $15,675 in 2009, $36,415.30 in 2010, and $14,497.80 in 2011. The Veteran listed his employment history since separating from military service in a resume. He was a real estate associate broker at W.B.H.H. from February 1995 to March 2008. He then worked as an associate real estate broker at R.M. from February 2008 to March 2010. He then worked as an associate real estate broker at K.W. Real Estate from February 2010 to March 2012. The resume also reported that he worked as an associate real estate broker at E.R. estate from March 2012 to August 2013. He noted that he was named the top salesperson when he was working at R.M. and W.B.H.G. The resume also indicated that the Veteran had an associate degree in arts, a Bachelor of Science degree in psychology which he completed in 2011, and an MBA in management completed in 2013. A vocational report from September 2016 reported that the Veteran was disabled from the workforce starting in 2009 as a result of his inability to meet the basic requirements to sustain unskilled entry-level work. The vocational expert explained that the Veteran was fatigued due to the combined symptoms of sleep apnea and PTSD, which caused nightmares and an inability to sleep. The expert furthered that the Veteran was having difficulty staying on task and remaining free from distractions and that he was unable to get along with co-workers and supervisors while on the job. The expert continued to explain that the Veteran was unemployable due to his high level of emotional disturbance and that the Veteran's service-connected problems with PTSD occurred on a daily basis. The expert furthered that although sedentary work was the least physically demanding since it allowed an employee be seated for most of the work day, there was no competitive employment that would allow an individual to only perform functional tasks for 15 to 20 minutes at a time. During the Veteran's interview with the vocational expert, he indicated that he was unable to sit for more than 30 minutes at one time and was unable to stand more than five minutes without feeling the need to move around due to pain and that his service-connected symptoms would not allow for sedentary employment due to his need to move around in order to relieve his chronic pain. Additionally, the Veteran was dealing with episodes of intense pain that made it difficult for him to get out of bed every morning. The examiner opined that based on the review of the evidence and through the interview with the Veteran, he found the Veteran to be a credible reporter of his symptoms and manifestations of his service-connected PTSD and physical disabilities. The expert continued to opine that it was more likely than not that the Veteran was completely disabled from the workforce due to his service-connected PTSD and physical disabilities beginning in February 2009. Social Security Administration records reported that the Veteran did not qualify for disability benefits. In the February 2020 Board hearing, the Veteran reported that he had marginal employment between 2009 and 2012. He explained that after 2009 he was spending only a few hours a week working in real estate. The Board concludes that the preponderance of the evidence is against a finding that the Veteran has been unable to secure and follow substantially gainful employment due to service-connected disabilities alone or that his employment was marginal employment prior to February 29, 2012. The Veteran has self-reported that he was working as a realtor up until 2012. Moreover, the Veteran submitted his tax records that reflected his income for the period prior to February 2012 and his income prior to 2012 has been far above the poverty threshold. Additionally, while the Veteran submitted a statement by a vocational expert claiming that he was completely disabled from the workforce starting in 2009, the examiner attributed the Veteran's inability to work due to his physical and mental disabilities. The Veteran is not service connected for any psychiatric disorder prior to February 2012. Non-service connected disabilities cannot be the basis of entitlement to a TDIU, and thus since the expert claims that it was a combination of the Veteran's mental and physical disabilities, the Board cannot provide this report great probative weight in whether the Veteran's service connected disabilities prior to February 29, 2012 precluded the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. Moreover, the evidence indicates that while the Veteran had physical disabilities that made it difficult for him do some of the tasks for his real estate job, he was able to attend college and complete a bachelor of science degree in psychology. This in fact indicates that while the Veteran may have been unable to perform physical tasks, he was still able to pursue education to widen his job opportunities. Additionally, this indicated that the Veteran was able to be in a more sedentary environment where he was able to sit and learn and work at his own pace to meet deadlines. The Board points out that the determination of whether the Veteran is employable, to include the subsidiary matter of whether the Veteran had marginal employment, is an adjudicative decision left to the Board, not a medical determination. The Board has reviewed the statements by the private expert and VA experts, and finds that there is no indication that the Veteran served in marginal employment or that he was unable to maintain substantially gainful employment. The Veteran was employed and was making income from his real estate job much higher than the poverty threshold. In sum, the Board finds that the Veteran has not been rendered unable to secure and follow substantially gainful employment as a result of his service-connected disabilities prior to February 29, 2012. To the contrary, the Veteran had been employed prior to February 2012, in a competitive work environment and made an income above the poverty threshold. Thus, the Veteran is not entitled to a TDIU prior to February 29, 2012. Accordingly, the preponderance of the evidence is against the claim for TDIU prior to February 29, 2012, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.