Citation Nr: 21040020 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 09-17 776 DATE: July 2, 2021 ORDER Entitlement to an effective date for total disability based on individual unemployability (TDIU) from February 1, 2000 is granted. FINDING OF FACT The schedular criteria for TDIU are not met, but the evidence of record is at least in equipoise as to whether the Veteran's service-connected disabilities prevented him from securing and following substantially gainful employment from February 1, 2000. CONCLUSION OF LAW The criteria for entitlement to an effective date for total disability based on individual unemployability (TDIU) from February 1, 2000 have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1970 to April 1976. 1. Entitlement to an effective date for total disability based on individual unemployability (TDIU) from February 1, 2000 The Veteran is currently assigned a TDIU rating from April 2003 and contends that his service-connected disabilities prevented him from securing and maintaining substantially gainful employment from February 2000. After a thorough review of the evidence, the Board finds that it is at least in equipoise as to whether the Veteran's service-connected disabilities prevented him from securing and maintaining substantially gainful employment prior to April 2003 and accordingly finds that an effective date of February 1, 2000 is warranted for the award of TDIU. This case has an extensive procedural history. Relevant here, the Veteran applied for entitlement to service connection for left knee condition and hypertension in 1992 which was granted. The Veteran disagreed with the initial assigned ratings. In 1998, the Veteran applied for entitlement to service connection for a lumbar spine condition which was eventually granted in a February 2008 rating decision. As part of that decision, the RO granted entitlement to TDIU based on Rice criteria with an effective date of April 1, 2003, stating that this date was chosen based on when the Veteran met the schedular criteria for TDIU. The Veteran appealed the effective date assigned for the TDIU in an August 2008 notice of disagreement, requesting an effective date of February 2000. The Board remanded this issue in June 2012. The Board denied entitlement to an earlier effective date prior to April 2003 for the assigned TDIU in April 2016 and August 2019 decisions. The Veteran appealed both decisions to the Court of Appeals for Veterans Claims (Court) which vacated the previous decisions and remanded to the Board for further consideration. A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities. 38 C.F.R. § 4.16(a). Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the Veteran 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, or if there are two or more 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. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology will be considered as one disability. See 38 C.F.R. § 4.16(a)(2). 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. While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court of Appeals for Veterans Claims ("Court/CAVC") defined "substantially gainful employment" as an occupation "that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income..." The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable, is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). But that said, as already eluded to, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Furthermore, VA regulations provide that all Veterans who, in light of their individual circumstance, but without regard to age, are unable to secure and follow a substantially gainful occupation as a result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable under the circumstances. See VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. 38 C.F.R. § 4.16(b). However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In analyzing the evidence, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The most recent Court decision of July 2020 vacated the prior August 2019 Board decision. In its order, the Court directed the Board to reconcile inconsistencies with the Veteran's educational and employment history during the period prior to April 2003. The Board had previously remanded this issue in a June 2018 decision, directing the AOJ to obtain employment income verification by obtaining documents such as Social Security Administration earnings documents. In September 2018, the Board received a certified letter from the Social Security Administration noting that there was no record of established earnings for the Veteran from the period of 1998 to 2003. The documents notate that the earnings record only reflects reported earnings, meaning self-employed individuals must report earnings for them to show in the record. As it is unclear what other documents might shed more light on the Veteran's income prior to 2003, the Board finds that the AOJ substantially complied with the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (... was substantial compliance with remand directives); Evans v. West, 12 Vet. App. 22, 31 (1998) (holding that remand was not warranted because remand orders were substantially complied with). As for the inconsistencies in the record, the Board finds that it is not possible to reconcile all the inconsistent evidence regarding whether the Veteran was working in gainful employment or whether he was unemployable due solely to service-connected disabilities prior to 2003. A sample of some of these inconsistencies include statements by the Veteran regarding the contracting business he owned prior to 2003. In a May 2001 report, Dr. H reported that the Veteran owned a construction business "in which he does occasional lifting but mostly does not get involved in the physical work aspect." In a December 2001 VA treatment record, the treatment provider recorded that the Veteran was currently working in the kitchen remodeling business. There are also medical statements regarding his employability prior to 2003. A March 2001 letter from Dr. L states that the Veteran underwent left knee surgery on March 7, 2001 and that he was "unable to work at his normal profession as a building contractor and at this point in time I classify him as totally and permanently disabled." A March 6, 2001 letter from Dr. D states that the Veteran is under care for chronic back pain, that "he is unable to function and the patient's symptoms were markedly exacerbated to a point that employment in any field is no longer possible. [The Veteran] has been totally and permanently disabled since January 26, 2001." The Board here notes that evidence shows that the Veteran was involved in a motor vehicle accident on January 27, 2001. The Veteran later submitted statements from his wife and former employees of his company. In a July 2008 written statement, the Veteran's wife stated that she did the books for his construction company and that he had stopped working in February 2000. In another July 2008 written statement, a former employee of the Veteran states that he had a pay stub dated February 2000 indicating that was the date of the closure of the business. The Veteran has also stated that he was attending school which was referenced in the 2017 Court remand as presenting additional inconsistencies which were to be addressed by the Board. At a May 2012 Board hearing, the Veteran stated he became unable to work in the year 2000. The Veteran stated that he was a self-employed building contractor and that he began to sell off his tools and "divest" from the business and that he was going by advice from two doctors and that he was unable to physically work anymore. The Veteran also stated that he was attending school between 2000 and 2001 and 2003. According to the evidence in the Veteran's file, he is a retired firefighter who left that occupation around 1998 because of spinal disorders incurred on the job, see July 2003 neurological consultation report. The Veteran then owned a construction company for an undetermined amount of time. The Veteran got a GED in service according to one statement, however in the August 2010 mental health VA examination, the Veteran stated that he earned a high school diploma prior to entering service. The Veteran earned a college degree, a Bachelor's, around the year 2005. However, in December 1998, a medical report notes that the Veteran was under a lot of stress that added to his heart palpitations such as running a construction company and attending law school. The Veteran submitted TDIU forms in January and February 2006. On the January 2006 form, he stated that he earned $45,000 in 2001. Prior to April 1, 2003, the Veteran was service-connected for the following disabilities: lumbar spine degenerative disc disease at 40 percent from April 29, 1998; Diabetes Mellitus type II at 10 percent from May 8, 2001 and at 20 percent from February 11, 2002; left knee arthritis at 10 percent prior to November 11, 2002, with a temporary 100 percent evaluation from November 12, 2002, and at 20 percent from April 1, 2003; and hypertension at 10 percent from August 24, 1992. The combined evaluation for compensation purposes was 50 percent from April 29, 1998; 60 percent from May 8, 2001; and 100 percent from November 17, 2002 until March 31, 2003. Because the Veteran here did not have at least one disability rating at 60 percent or higher, or at least one disability rated at 40 percent with a combined evaluation of at least 70 percent, the Veteran's disabilities did not meet the minimum schedular requirements for a grant of schedular TDIU. Accordingly, the Veteran's case was referred to the Director of Compensation and Pension service for extraschedular consideration for TDIU. 38C.F.R. §4.16(b). In a September 2015 review memorandum, the Director found that the evidence did not support that the Veteran was unable to secure or maintain substantially gainful employment prior to November 17, 2002, the date when the Veteran was awarded a 100 percent convalescence rating for his left knee disability. The Director cited the Veteran's letters from doctors in 2001 stating that the Veteran was totally disabled but noted that the Veteran's objective medical evidence showed that the Veteran was not unable to perform work duties prior to November 17, 2002. The Board is not bound by an adverse determination by the Director of Compensation and Pension. Wages v. McDonald, 27 Vet. App. 233 (2015). The effective date of an evaluation and award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Veteran did not initially make a separate claim for TDIU, but it was awarded as a result of Rice criteria in the 2008 rating decision. The initial increased rating claims on which it was based, the left leg and hypertension disabilities, had been continuously prosecuted since their first submission in August 1992. The appeal of the effective date of the TDIU has been continuously prosecuted since the 2008 rating decision. Given the foregoing, the Board finds that the positive evidence is in a state of equipoise with the negative evidence regarding the Veteran's claim of entitlement to an effective date of assignment of TDIU from February 2000 as reflected in the 2008 notice of disagreement. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board finds that an effective date of February 1, 2000 is warranted for the currently assigned TDIU. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.