Citation Nr: 21049161 Decision Date: 08/11/21 Archive Date: 08/11/21 DOCKET NO. 18-09 623 DATE: August 11, 2021 ORDER The severance of total disability rating based on individual unemployability (TDIU) from August 15, 2008 was proper; restoration of entitlement to TDIU is not warranted. The severance of special monthly compensation (SMC), from November 26, 2008 was proper; restoration of entitlement to SMC is not warranted. The severance of dependent's education benefits (DEA), from August 15, 2008 was proper; restoration of entitlement to DEA is not warranted. FINDINGS OF FACT 1. In a September 22, 2008 rating decision, the Regional Office (RO) granted entitlement to a TDIU, effective August 30, 2006. The award was predicated on a finding that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 2. In an August 7, 2015 rating decision, the RO proposed to discontinue TDIU benefits. 3. In a February 2, 2017 rating decision, the RO terminated the Veteran's TDIU benefits, effective August 15, 2008. 4. There is clear and convincing evidence that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation; and that he had been substantially and gainfully employed for at least twelve months, with only temporary interruptions. 5. In a January 6, 2014 rating decision, the RO granted entitlement to SMC, effective November 29, 2012. In a May 21, 2014 rating decision, the RO granted an earlier effective date of November 26, 2008, for SMC. 6. In an August 7, 2015 rating decision, the RO proposed to discontinue SMC benefits. 7. In a February 2, 2017 rating decision, the RO terminated the Veteran's SMC benefits, effective November 26, 2008. 8. In a September 22, 2008 rating decision, the RO granted entitlement to DEA, effective August 30, 2006. The award was predicated on a finding that the Veteran received a TDIU award. 9. In an August 7, 2015 rating decision, the RO proposed to discontinue DEA benefits. 10. In a February 2, 2017 rating decision, the RO terminated the Veteran's DEA benefits, effective August 15, 2008. CONCLUSIONS OF LAW 1. The criteria for restoration of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.343(c), 4.16. 2. The criteria for restoration of SMC have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.343(c), 4.16. 3. The criteria for restoration of DEA have not been met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1980 to July 1992. This case comes before the Board of Veterans' Appeals (Board) from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The rating decision terminated the Veteran's TDIU benefits, effective August 15, 2008. The Veteran testified at a Board hearing in December 2019 before the undersigned Veteran Law Judge (VLJ). A transcript of the hearing is associated with the file. See hearing transcript, December 18, 2019. The Board issued a decision denying the above claims in May 2020. See Board decision, May 14, 2020. In February 2021, the Board vacated its May 2020 decision. See Board vacatur, February 17, 2021. The vacatur was issued because the Veteran had requested a copy of his file in October 2016. See Veteran statement, received by VA October 8, 2016; October 12, 2016. There was no documentation in the claims file that the Agency of Original Jurisdiction (AOJ) fulfilled this request by sending the Veteran a copy of the requested documentation. As such, the Freedom of Information Act (FOIA) request was still outstanding when the Board issued its decision in May 2020. The issuance of the Board's May 2020 decision constituted an administrative error requiring vacatur. 38 C.F.R. § 20.904. Accordingly, the May 5, 2020 Board decision was vacated in its entirety. The Veteran's FOIA request was fulfilled in July 2021. See VA letter, July 28, 2021. Severance The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. TDIU The Veteran asserts that the termination of his TDIU benefit was improper, and that TDIU should be restored. See notice of disagreement (NOD), received by VA July 29, 2017. The record reflects that the Veteran was in receipt of a TDIU but that the benefit was discontinued due to the fact that the Veteran was gainfully employed from August 15, 2008. See rating decision, February 2, 2017. A total disability rating may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When reducing an award of TDIU, the provisions of 38 C.F.R. § 3.105(e) are for application. 38 C.F.R. § 3.343(c)(1). However, in such a determination, actual employability must be established by clear and convincing evidence. Id. The Board notes that the procedural requirements for notice of reduction or termination of a disability rating were met in this case. See 38 C.F.R. § 3.105(e). The provisions of 38 C.F.R. § 3.105(e) allows for the reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. First, there must be a rating action proposing the reduction, and giving the veteran 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested, and reduction is still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). The procedural requirements of both §§ 3.105(e) and 3.103(a)-(c) have been met in this case. As will be discussed below, a rating action proposed the reduction, and, thereafter, a rating action terminated the TDIU benefits. With regard to the merits of the appeal, the Board notes that substantially gainful employment does not include marginal employment, which is generally 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. Marginal employment may also be held to exist on a facts-found basis, including but is not limited to, employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). A rating of 100 percent disability based on individual unemployability (TDIU) may be reduced, subject to the procedural protections of § 3.105(e), but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. 38 C.F.R. § 3.343(c)(1). If a veteran with a TDIU begins to engage in a substantially gainful occupation after January 1, 1985, the veteran's rating may not be reduced solely on the basis of such occupation unless the veteran maintains the occupation for a period of twelve consecutive months. Temporary interruptions in employment that are of short duration shall not be considered breaks in otherwise continuous employment. 38 C.F.R. § 3.343(c)(2). The "clear and convincing" standard requires that capacity for work be proven to a "reasonable certainty" but not necessarily be "undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). The clear and convincing standard of proof is an intermediate standard between preponderance of the evidence and beyond a reasonable doubt. Fagan West, 13 Vet. App. 48, 55 (1999); Olson v. Brown, 5 Vet. App. 430, 434 (1993). 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. In assessing the propriety of the RO's decision to TDIU, the Board must focus on the evidence of record available to the RO at the time the rating determination at issue was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether actual improvement (or, as here, employability) was shown. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran's service-connected disabilities include posttraumatic stress disorder (PTSD), evaluated at 70 percent disabling; chronic sinusitis, evaluated at 50 percent disabling; migraines, evaluated at 50 percent disabling; and hypertension, evaluated at 10 percent disabling. The total combined rating for compensation was 70 percent from August 30, 2006, and 90 percent from March 22, 2007. The award of a TDIU was in place from August 30, 2006 to August 15, 2008. Procedural History By way of history, the Veteran filed his claim for TDIU in July 2008. In the claim, the Veteran stated that he last worked for a financial company as an investigator from June 2005 to October 2005 and left because of his service-connected PTSD as the PTSD made it impossible to perform his job. See claim, received by VA July 8, 2008. A September 2008 rating decision granted entitlement to TDIU, effective August 30, 2006. See rating decision, September 22, 2008. A VA Form 21-4140 showed that the Veteran reported being employed from March 2009 to October 2009. See VA Form 21-4140, received by VA October 22, 2009. A November 2009 rating decision continued the entitlement to TDIU. See rating decision, November 4, 2009. An August 2015 rating decision proposed to discontinue the entitlement to TDIU. See rating decision, August 7, 2015. The Veteran requested a hearing. See Veteran statement, received by VA October 8, 2016. The Veteran's hearing was scheduled for December 6, 2016. See VA correspondence, October 26, 2016. In further correspondence, the Veteran requested that his hearing be moved to the end of January 2017 or early February 2017, as he was on trial "in the same matter that is pending in your Division." See Veteran statement, received by VA December 3, 2016. Indeed, the Veteran was indicted in September 2016, in United States District Court for benefits fraud and related charged stemming from unemployment applications he allegedly submitted to the Department of Veterans Affairs and the Social Security Administration, in 2008 and 2013, respectively. See Defendants' Motion for Order Directing Release of Plaintiff's Disability Benefits Records, filed in the United Stated District Court, November 2016; received by VA November 4, 2016. VA rescheduled the hearing to January 31, 2017. See VA correspondence, November 29, 2016. VA called the Veteran on the day of the hearing, and he stated that he will not attend the hearing due to a "scheduling conflict." See report of general information, January 31, 2017. A February 2017 rating decision discontinued the entitlement to TDIU, effective August 15, 2008. See rating decision, February 2, 2017. The Veteran filed a notice of disagreement in July 2017, and then again in December 2017. See Notice of Disagreement, received by VA July 29, 2017; December 20, 2017. A Statement of the Case as issued by VA in January 2018. See Statement of the Case, January 10, 2018. The Veteran filed a Substantive Appeal, formal appeal to the Board, in February 2018. See Substantive Appeal, received by VA February 8, 2018. The Veteran testified at a Board hearing in December 2019 before the undersigned VLJ. A transcript of the hearing is associated with the file. See hearing transcript, December 18, 2019. The Board issued a decision denying the above claims in May 2020. See Board decision, May 14, 2020. In August 2020, the Veteran filed a Motion to Reconsider/Clear and Unmistakable Error Due Process Violation/Request for Expedited Ruling. See Veteran statement, received by VA August 27, 2020. The Board acknowledged the Veteran's Motion in an October 2020 letter. See VA letter, October 7, 2020. In February 2021, the Board vacated its May 2020 decision. See Board vacatur, February 17, 2021. The vacatur was issued because the Veteran requested a copy of his file in October 2016. See Veteran statement, received by VA October 8, 2016; October 12, 2016. There was no documentation in the claims file that the AOJ fulfilled this request by sending the Veteran a copy of the requested documentation. As such, the FOIA request was still outstanding when the Board issued its decision in May 2020. The issuance of the Board's May 2020 decision constituted an error requiring vacatur. 38 C.F.R. § 20.904. Accordingly, the May 5, 2020 Board decision was vacated in its entirety. In February 2021, the Motion for Reconsideration was ruled to be moot, and was dismissed, as the Board has vacated its May 14, 2020 decision. See VA letter, February 23, 2021. The Veteran's FOIA request was fulfilled in July 2021. See VA letter, July 28, 2021. Factual History and Analysis VA treatment records show that the Veteran reported working as a contractor for VA and traveled a lot to Italy, where he had a second home. See VA treatment records, June 8, 2009. He stated that he worked as a VP in a corporation located in Washington, D.C. See VA treatment records, October 7, 2011. The Veteran told his providers that he was a part-time beekeeper after retiring as a special agent with Army criminal investigation division. See VA treatment records, February 10, 2015. He stated that he "made honey" for a living. See VA treatment records, September 28, 2015. Several months after, he stated that he was unemployed, but that his wife has a bee farm, and that they took their bees to Florida for the winter. See VA treatment records, May 18, 2016. At another visit, the Veteran reported that he managed his own bee farm for a living. See VA treatment records, January 20, 2017. The Veteran once again endorsed being a beekeeper. See VA treatment records, April 17, 2019. He stated that he was self-employed through the honeybee business he owned. See VA treatment records, April 22, 2019. He reported that he enjoyed being a business owner, enjoyed traveling with the bees, and was concerned about other beekeepers stealing his bees. See VA treatment records, April 24, 2019. The Veteran related that he worked part-time, seasonally, as a beekeeper. See VA treatment records, March 14, 2020. The Veteran stated that he will be unable to attend the January 8, 2017 hearing as he will be incarcerated for 18 months. He related that he worked at a company, and that he was terminated from the company as he failed to disclose a prior conviction and also because he complained about his coworkers and threatened litigation. He stated that he attempted to obtain employment three times since and failed every time. The Veteran related that he had four to eight medical appointments a month which necessitated trips to Richmond, Virginia, and that the appointments last most of the day. See Veteran statement, received by VA December 20, 2017. The Veteran's spouse related that she provided the majority of the work for the honeybee farm and that they did not make a large profit. See lay statement, received by VA December 20, 2017. He was imprisoned in the federal prison system from December 2017 to June 2019 as he was convicted of a felony. See report of incarceration, March 8, 2018; inmate locator; VA and Federal Bureau of Prisons Computer Match, January 16, 2018. A letter from an employment coordinator stated that the Veteran would be able to work in an office-settings and was likely to succeed in performing the duties involved in a sedentary office setting. The coordinator added that the Veteran should have no problems with maintaining suitable employment. See Letter of Intent, received by VA July 29, 2017, written on June 6, 2008. A Presentence Investigation Report prepared for the United States District Court related that, regarding Social Security Administration (SSA) fraud, the Veteran operated the honeybee farm out of his residence as early as October 2011 and from October 2011 to July 2016 he was the only person to withdraw funds from the account. In July 2016, he added his spouse as a signatory on the account and backdated the paperwork. The Veteran related that he last worked in May 2012, did not work in 2013, and could not work due to PTSD, migraines, sinusitis, and hypertension. He stated that his daily activities consisted of eating, watching television, walking his dogs and conversing on the telephone. He stated that he needed to take medication to sleep, woke up "constantly," his wife prepared his meals, and drove his car and mowed the lawn weekly. He related that he wore the same clothes and bathed infrequently. After his SSA disability application was denied, the Veteran added that his wife prepared his medications and assisted him with bathing, that he goes to bed early due to medication and that he cut grass occasionally. During an SSA hearing, the Veteran represented the honeybee farm to be his wife's business, stated that his duties there were limited and that he was not compensated for them and that the business owned 20 honeybee colonies. At the same hearing, the Veteran "submitted a fraudulent tax return for the 2012 tax year." After receiving SSA benefits, the Veteran continued to work as the owner and operator of the honeybee farm and failed to report his income therefrom to the SSA. "It was later discovered that [the Veteran] made multiple materially false statements during the hearing." He also had a significantly higher number of honeybee colonies that the Veteran reported and that he was actually able to accomplish the tasks which he told SSA he was unable to accomplish. A new SSA hearing found that the Veteran was not disabled from May 16, 2012 to November 15, 2016, and that he was not entitled to SSA benefits. See Presentence Investigation Report, received by VA December 20, 2017. Regarding VA fraud, the Report related that the VA Office of Inspector General (OIG) Criminal Investigations Division began an investigation in May 2014 after receiving information that the Veteran was fraudulently receiving TDIU benefits. The investigation determined that the Veteran was gainfully employed while simultaneously receiving TDIU benefits. See Presentence Investigation Report, received by VA December 20, 2017. As for the Veteran's employment, the Report related that he gainfully worked from 2008 to 2010 at a credit services company, owned and operated the honeybee farm from 2010 to the present, worked from July 2011 to May 2012 at a company, and in 2011 at another company. See Presentence Investigation Report, received by VA December 20, 2017. At the December 2019 Board hearing, the Veteran testified under oath that he and his wife had a honeybee farm, and that his wife was the registered owner of the company, and that tax returns submitted to VA showed that his wife's name was on the forms. The Veteran further stated that he currently received 400 to 500 dollars a month in cash from the honeybee farm since been released from prison. He related that his wife dealt with the everyday running of the honeybee farm, handled customers, and went to farmer's markets, while he worked on the honeybees part-time (which to him meant that he drove by the honeybee hives every couple of months), as he was unable to do anything physically. He related that he had an associate's degree in criminal justice and a bachelor's degree in Business Administration. He also asserted that he took one day honeybee keeping classes at a college. He alleged that his income over the past five or six years has been zero. See hearing transcript, December 18, 2019. The Veteran submitted tax return forms to VA for the years 2014 through 2018. See 1040s, received by VA January 9, 2020. In August 2020 correspondence, the Veteran stated that his wife controlled their bank account and wrote checks; that his overpayment to VA has been cancelled as it was judged not to be due to fraud; that he had no income since 2012; that he did receive SSA benefits; that he never retired "from any agency or corporation;" that attending six to eight doctors' appointments per month precluded gainful employment; that he was released from a former job due to excessive absenteeism; that he was at risk of falls due to his medications, and once fell off a truck and broke both arms; that he was employed from 2008 to 2009 and from 2011 to 2012; that he was fired for filing a complaint against an FBI employee and/or for failing to disclose a conviction; and that he only received 500.00 dollars a month from his wife, and was not making more "from the farm operation." See Veteran statement, received by VA December 16, 2020. SSA records show that the Veteran is not receiving monthly payments. See SSA inquiry results. The Veteran's honeybee business advertises itself as a "Service Disabled Veteran Owned Company" on its publicly available company website. The website states that it had been in existence since 2010 and that it provides bees, honey, and pollination services. After a review of the record, the Board finds that there is clear and convincing evidence that the Veteran had maintained substantially gainful employment prior to discontinuance of TDIU benefits and thus termination was proper. In so finding, the Board notes that at the time of discontinuance, the evidence of record, which includes records regarding an OIG investigation, demonstrates that the Veteran had been employed full-time. The Board finds that the Veteran has provided inaccurate statements regarding his work history. The evidence shows that the Veteran engaged in gainful employment during the period on appeal and only stopped working for the time period when he was in federal prison following a conviction for fraud while seeking monetary benefits. The above-described evidence shows that the Veteran was working full-time, was the owner and operator of his honeybee business and filed false tax returns. These facts show a pattern of the Veteran providing inaccurate and/or inconsistent facts while seeking compensation benefits. This is evidence that the Veteran's facts lack accuracy. As a result, the Board finds that the Veteran's statements regarding his symptoms and employment history are not credible, have significantly lessened probative value, and the Board will apply such finding throughout the appeal period. In sum, despite the Veteran's contentions to the contrary, the evidence of record reflects that he was gainfully employed during the relevant period on appeal. He was not only gainfully employed, but also did not work in a protected environment such as a family business or sheltered workshop the Veteran owned and operated, and continued to own and operate, a large honeybee farm, and worked in several companies which he left for other opportunities. Notwithstanding this, the Veteran has been found guilty in federal court of providing fraudulent statements to SSA regarding his employment status. The Board finds that the record, outlined above, provides clear and convincing evidence that, at the time of the discontinuance of a TDIU, the Veteran was actually gainfully employed, and that his employment was not marginal. Therefore, the criteria for restoration of a TDIU from August 15, 2008 are not met and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, supra. 2. SMC Additionally, the Veteran challenges the propriety of the severance of his SMC benefits. By way of history, the Veteran was awarded SMC based on housebound criteria, effective November 26, 2008, based on his 70 percent rating for PTSD and separate service-connected disabilities evaluated as at least 60 percent disabling. A January 2014 decision granted SMC based on housebound status, effective November 29, 2012. See rating decision, January 6, 2014. A May 2014 rating decision established an earlier effective date for the SMC grant, effective November 26, 2008. See rating decision, May 21, 2014. This grant was based on a United States Court of Appeals for Veterans Claims (Court) decision, which held that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation); 38 U.S.C. § 1114 (s) (providing for SMC where there is a service-connected disability rated as total and additional service-connected disability or disabilities rated as 60 percent disabling or more). An August 2015 rating decision proposed to discontinue the entitlement to SMC, as part and parcel of the proposal to discontinue the Veteran's entitlement to TDIU because the SMC was predicated on the TDIU. See rating decision, August 7, 2015. A February 2017 rating decision terminated the Veteran's entitlement to TDIU, which was the basis of the establishment of the SMC benefit. The decision terminated the SMC entitlement because the Veteran did not meet the requirements for the benefits under Bradley v. Peake. In this case, the Veteran no longer satisfied the criteria for basic eligibility for SMC once his TDIU was discontinued, effective August 15, 2008. For the reasons stated above, the Board has determined he is not entitled to restoration of the TDIU. Therefore, this aspect of his appeal must also be denied. 3. DEA Additionally, the Veteran challenges the propriety of the severance of his DEA benefits. Basic eligibility for Chapter 35 benefits is established if: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. In this case, the Veteran no longer satisfied the criteria for basic eligibility for education benefits er Chapter 35 (DEA) once his TDIU was discontinued, effective August 15, 2008. For the reasons stated above, the Board has determined he is not entitled to restoration of the TDIU. Therefore, this aspect of his appeal must also be denied. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lech, 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.