Citation Nr: 22012283 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 15-36 469 DATE: March 3, 2022 ORDER Prior to November 2, 2019, a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Prior to November 2, 2019, the weight of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. CONCLUSION OF LAW Prior to November 2, 2019, the criteria for establishing entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2005 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In October 2018, the Board denied the Veteran's claim for TDIU, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In an April 2019 Memorandum Decision, the Court vacated the Board's October 2018 decision and remanded the claim to the Board for further adjudication. In a February 2020 rating decision, a 100 percent rating was granted for posttraumatic stress disorder (PTSD), effective January 22, 2020. In April 2020 and August 2020, the Board remanded the issue of entitlement to TDIU prior to January 22, 2020, for further development. In March 2021, the Board granted TDIU from November 2, 2019 to January 22, 2020, but denied TDIU prior November 2, 2019, and the Veteran appealed that decision to the Court. In November 2021, the Court granted a Joint Motion for Remand (Joint Motion), vacating the portion of the Board's March 2021 decision denying TDIU prior to November 2, 2019, and remanding it to the Board for readjudication. TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. §§ 4.16(a). 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. Id. Marginal employment may also be held to exist in some cases when earned annual income exceeds the poverty threshold on a facts found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. The poverty threshold for one person from 2012 to 2019 ranged between $11,720 and $13,011. See U.S. CENSUS BUREAU, POVERTY THRESHOLDS, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). 1. Entitlement to TDIU prior to November 2, 2019 Prior to October 3, 2019, service connection was in effect for right hip femoral acetabular impingement syndrome with degenerative joint disease, which was assigned a 20 percent rating for limitation of flexion, a 10 percent rating for limitation of flexion, and a 0 percent rating for limitation of extension. The Veteran's combined disability rating was 30 percent. Accordingly, the schedular criteria for entitlement to TDIU were not met. Beginning October 3, 2019, service connection was granted for PTSD with a 70 percent rating. The Veteran's combined disability rating was 90 percent. Thus, the schedular criteria for entitlement to TDIU were from October 3, 2019 to November 2, 2019. The record shows that the Veteran has a master's degree in finance, and he reported working as a commercial banker for JP Morgan prior to joining the military. Throughout the appeal period, the Veteran worked for a temp agency and held a number of different jobs, including a bank teller, a salesperson, an insurance agent, a cashier, a truck driver, an Uber driver, and a warehouse laborer. The Veteran underwent a VA examination in March 2013, during which he reported right hip pain, which made it difficult to stand more than 15 minutes and was aggravated when getting out of a vehicle on the passenger side. He stated that he was working as a bank teller, but he was fired eight weeks ago because he frequently had to sit down on the job. He stated that he was looking for a job as an office administrator. The examiner opined that the Veteran's right hip disability would preclude physical or light work that required prolonged standing, but the Veteran should be capable of working a job where he could spend much of the time sitting. During the October 2017 Board hearing, the Veteran testified that he was working in data entry at the time and stated that he sometimes had to stand up from his desk and change positions to his keep his hip pain from coming back. The Veteran underwent another VA examination in May 2018, during which he reported right hip pain, which was aggravated by prolonged sitting, standing, and walking. He denied using any assistive devices. He stated that his ability to function in a work environment was limited by his physical limitations in terms of standing, walking, and sitting. The examiner indicated that the Veteran's right hip disability would impact jobs requiring prolonged sitting, standing, or walking. The Veteran underwent another VA examination in October 2019, during which he reported flare ups of hip pain when sitting for too long or standing for an eight-hour work shift. The Veteran stated that he worked as a driver in the past, but indicated that he could not sit for too long. He reported currently working as a part-time cashier and having difficulty standing and having to sit down. The examiner opined that the Veteran's right hip disability would cause difficulty with prolonged sitting, standing, or walking. Although some of the VA examiner's opined that the Veteran's right hip disability would cause difficulty with prolonged walking, standing, or sitting, the decision of whether a veteran's service-connected disabilities render him employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that "applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner."). The Board finds that when considering the Veteran's education and work history, the probative evidence of record shows that the Veteran's service-connected right hip disability alone did not preclude him from securing and following employment prior to October 3, 2019, when service connection was only in effect for a right hip disability. VA treatment records show that in February 2013, the Veteran reported increasing right hip pain, and he stated that he recently lost his job as a bank teller because he was unable to stand for prolonged periods of time. In July 2013, the Veteran received a right hip injection, which reportedly provided good relief of his pain for about a year-and-a-half. In May 2015, the Veteran reported working full-time in data entry. In June 2015, he received another right hip injection. In August 2015, the Veteran reported that his hip pain improved significantly, and he was able to sleep better, walk better, and exercise more. He stated that he experienced transient exacerbations of pain from time to time, but it was much milder than before and easily controlled with pain medication, and he denied any side effects from his medication. In October 2015, the Veteran reported working as a clerk for a temp agency. In February 2016, it was noted that the Veteran ambulated without assistance, and he had no complaints of pain and no side effects from medications. Through September 30, 2016, the Veteran worked as an independent contractor for a trucking company. In November 2016, the Veteran received another right hip injection, after which he reported great pain relief for nine months. In March 2017, he reported working full-time in data entry. In August 2017, the Veteran reported increased right hip pain, which worsened with movement and during sleep, but improved when he was not walking. It was noted that the Veteran was usually very active, but his recent increase in pain has limited his exercise. Later that month, the Veteran received another right hip injection; however, he stated that his relief only lasted about two weeks. In September 2017, the Veteran reported working as an insurance agent at a bank. In October 2017, he stated that his pain had improved somewhat. In January 2018, the Veteran reported working full-time as a long-distance truck driver. In February 2018, the Veteran reported that despite having a master's degree in finance, he was working as an Uber driver because he was unable to find better employment due to his inability to speak Spanish. In February 2018, the Veteran was involuntary admitted for mental health treatment after an altercation with his landlord. Upon his admission, he reported symptoms of depression and suicidal ideation, and he stated that he was only sleeping about two hours a night. After his discharge, the Veteran entered a residential treatment program through April 2018. During that time, he told treatment providers that he earned about $1,600 a month driving for Uber, but he was seeking more stable employment as a long-distance truck driver. In July 2018, the Veteran requested a referral for a VA residential substance abuse treatment program. In August 2018, the Veteran was again involuntarily admitted for mental health treatment due to bizarre, aggressive behavior toward his landlord. Upon admission, the Veteran endorsed symptoms of stress, anxiety, insomnia, paranoia, and tangential thoughts. In December 2018, the Veteran reported working full-time as a truck driver again. In March 2019, the Veteran reported that his last steroid injection in June 2018 provided significant relief of his right hip pain for many months, which he was happy about. He received another steroid injection in April 2019. During an October 2019 VA mental health examination, the Veteran reported being unable to keep a job and being fired from every job he had because he was depressed and had right hip pain, did not handle stress well, got into a fight with a co-worker, and was easily angered. He stated that he stopped driving for Uber because he lost his car due to his inability to make payments. During a December 2019 VA mental health examination, he reported being fired from his last two jobs because he got into fights with co-workers and supervisors. A February 2020 VA mental health treatment record shows that the Veteran reported working a number of odd jobs since service, but he has had difficulty maintaining employment due to interpersonal conflict. During a February 2020 VA mental health examination, the Veteran reported difficulty maintaining employment due to his impulsive anger, verbal outbursts, difficulty getting along with others, poor focus, hypervigilance, and poor attendance. On an April 2020 VA Vocational Rehabilitation Needs Inventory form, the Veteran reported working full-time as a cashier for a casino from January 2019 to November 1, 2019, and earning, on average, $1,600 a month. Although the Veteran reported working throughout most of the appeal period, he asserts that none of his work constituted substantially gainful employment. However, the Veteran's Social Security Statement shows that his taxed Social Security and Medicare earnings were $12,960 in 2012; $16,362 in 2013; $27,394 in 2014; $26,839 in 2015; $17,242 in 2016; $16,239 in 2017; $9,814 in 2018; and $28,543 in 2019. Those earnings exceeded the poverty threshold for one person every year during the appeal period, with the exception of 2018. See U.S. CENSUS BUREAU, POVERTY THRESHOLDS, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (the poverty threshold for one person from 2012 to 2019 ranged between $11,720 and $13,011). As previously noted, the Veteran received significant inpatient mental health treatment throughout 2018. He also reported prolonged relief of his right hip pain, and he drove for Uber and expressed a desire to find a long-distance truck driving job, which would require prolonged sitting. Therefore, the Board concludes that any inability to maintain gainful employment that year was due to mental health symptoms, and not right hip pain. The Board acknowledges the Veteran's assertion in a January 2021 written statement that all "gig" jobs, such as working for a temp agency or driving for a ride share company, should not be considered gainful employment because they are "protected work environments requiring manual labor such as sitting in one painful position for hours but the allowance of breaks at the cost of revenue for the owner-operator." However, the Veteran has not asserted that he was employed in a family business or sheltered workshop or that he was afforded any special accommodations or concessions at those jobs. In fact, he appears to assert the oppositethat he was not provided any accommodations, such as paid breaks. The fact that the Veteran was able to work at jobs where he was not provided special accommodations, such as paid breaks, further supports a finding that he did not work in a protected work environment. Finally, the Board acknowledges the Veteran's assertion that TDIU should be granted based on his PTSD prior to 2020 because "the number of jobs held and thus fired from for not meeting attendance, customer service, physical expectations or teamwork metrics is a true sign that the physical limitations and outbursts from PTSD were in full view despite a missing diagnosis." He requests that TDIU be granted on an extraschedular basis prior to the award of service connection for PTSD because his mental health condition had not been properly diagnosed yet. While the Board sympathizes with the Veteran, the effective date for an award of TDIU can be no earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of TDIU is based. See Delrio v. Wilkie, 32 Vet. App. 232, 428 (2019). As service connection was not in effect for PTSD until October 3, 2019, the Board may not consider the Veteran's symptoms of PTSD in determining entitlement to TDIU prior to that date. In sum, prior to October 3, 2019, treatment records show that the Veteran reported long periods of time during which he experienced great relief of his right hip pain and during which he was reportedly physically active. The Veteran had gainful employment during much of that period, and any inability to maintain gainful employment was due to mental health symptoms, not a right hip disability. Thus, the evidence does not show there was a reasonable possibility that the right hip disability resulted in unemployability, and referral to the Director of Compensation Service for an opinion on extraschedular consideration is not warranted. See Snider v. McDonough, 35 Vet. App. 1 (2021). Further, the most probative evidence of record is against finding that the Veteran's right hip disability alone rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience prior to October 3, 2019. From October 3, 2019 to November 2, 2019, the record shows that the Veteran was employed full-time as a cashier earning approximately $1,600 per month in a job he held since January 2019. Such equates to an annual salary of approximately $19,200, or $16,000 during his employment with that company, both well above the poverty threshold. Indeed, the Veteran's taxed Social Security and Medicare earnings for 2019 were $28,543. Moreover, as discussed above, the Board does not find the Veteran's employment during the period prior to November 2, 2019, constitutes marginal employment. Thus, entitlement to TDIU is not warranted at any time prior to November 2, 2019. As the weight of the competent and probative evidence is against the claim, entitlement to TDIU prior to November 2, 2019, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.