Citation Nr: 22014265 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-07 636 DATE: March 12, 2022 ORDER Prior to March 1, 2011, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. As of March 1, 2011, a TDIU based on an extra-schedular basis is granted, subject to the laws and regulation governing the payment of monetary benefits. Prior to March 1, 2011, an award of Dependents' Education Assistance (DEA) under 38 U.S.C. Chapter 35, is denied. An award of DEA under 38 U.S.C. Chapter 35, as of March 1, 2011, is granted. FINDINGS OF FACT 1. Prior to March 1, 2011, the Veteran's service connected back condition did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 2. As of March 1, 2011, but no earlier, the Veteran's service-connected back disability rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 3. Prior to March 1, 2011, the Veteran did not have a permanent total service-connected disability. 4. As of March 1, 2011, the Veteran had a permanent total service-connected disability. CONCLUSIONS OF LAW 1. Prior to March 1, 2011, the criteria for a TDIU on an extra-schedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 2. As of March 1, 2011, but no earlier, the criteria for a TDIU on an extra-schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 3. The criteria for an effective date prior to March 1, 2011, for eligibility to DEA have not been met. 38 U.S.C. §§ 3500, 3501, 5110; 38 C.F.R. §§ 3.400, 3.807, 21.3020, 21.3021. 4. The criteria for an effective date of March 1, 2011, but no earlier, for eligibility to DEA have been met. 38 U.S.C. §§ 3500, 3501, 5110; 38 C.F.R. §§ 3.400, 3.807, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983 to June 1988. In accordance with his request, the Veteran was scheduled for a Board of Veterans' Appeals (Board) hearing before a Veterans Law Judge in March 2021. However, in a March 2021 letter, he withdrew his hearing request. 38 C.F.R. § 20.702 (e). In August 2021, the Board awarded a TDIU as of January 19, 2013, the date the Veteran met the schedular threshold for such benefit and remanded the claim for a TDIU prior to such date for additional development, along with the inextricably intertwined claim for an earlier effective date for an award of DEA under 38 U.S.C. Chapter 35. The claims now return for further appellate review. 1. Entitlement to a TDIU prior to January 19, 2013. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a 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, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before." In other words, a "substantially gainful occupation" is "one that provides 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" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration (SSA) regulations). 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. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts-found basis (includes 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017), the United States Court of Appeals for Veterans Claims (Court) indicated that factors to consider may include the "magnitude of the veteran's job responsibilities and the degree of accommodation necessary for successful, full-time work." Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." The Court also defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning 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. As noted in the August 2021 decision, the Veteran's contends that he is unable to work due to his service-connected back disability. Here, his claim for a TDIU stems from April 20, 2010, the date of receipt of his increased rating claim for his lumbar spine disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). For the appeal period prior to January 19, 2013, the Veteran is service connected for left convex scoliosis with back strain and degenerative disc disease, evaluated as 40 percent disabling; airway obstruction with minimally active asthma, evaluated as 10 percent disabling; radiculopathy of the left lower extremity, evaluated as 10 percent disabling; and residuals of the fourth metacarpal of the left hand, evaluated as noncompensable. As of August 15, 2012, the Veteran is service connection for tinnitus, evaluated as 10 percent disabling; arthritis of the temporomandibular joint, evaluated as 10 percent disabling; and right ear hearing loss, evaluated as noncompensable. Consequently, prior to August 15, 2012, the Veteran's combined disability rating is 50 percent, and 60 percent thereafter. In the August 2021 decision, the Board found that, while the Veteran does not meet the schedular threshold for a TDIU for such period, the evidence suggested that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Thus, the claim was remanded so as to refer the case to the Director of Compensation Service for extra-schedular consideration of a TDIU prior to January 19, 2013, pursuant to 38 C.F.R. § 4.16(b). While the Director found that a TDIU on an extra-schedular basis was not warranted in a November 2021 opinion, the Board nevertheless resolves all doubt in favor of the Veteran and finds that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of March 1, 2011. However, prior to such date, evidence does not show that the Veteran's service connected disability rendered him unable to secure or follow a substantially gainful occupation. In regard to his education and work history, in the June 2014 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran indicated that he worked in telephone sales from 2010 to 2011 and performed contract work from April 2012 to June 2012. A review of the record indicates that the Veteran worked up until March 2011, following a fall that exacerbated his lower back injury. Notably, VA treatment records indicate that the Veteran has been out of work since March 1, 2011. The Board also notes that VA treatment records indicate that the Veteran worked in August 2011 and October 2011 as a telemarketer. However, in his VA Form 21-8940, the Veteran reported that he only worked as a telemarketer for three weeks and he was making 800 dollars a month. Moreover, the Veteran reported at a January 2015 VA examination that he worked as a telemarketer throughout the year, but he was unable to work due to his back disability. Therefore, while the Veteran reported to work during the appeal period, the Board finds that such employment was marginal in nature. Prior to March 1, 2011, VA treatment records indicate that the Veteran was employed part-time, and in December 2010, he inquired about college and vocational rehabilitation. Social Security Administration (SSA) records reveal that the Veteran reported he was unable to work beginning February 1, 2011. Consequently, the Board finds that the Veteran has been unemployed since March 1, 2011. In this regard, prior to March 1, 2011, the evidence does not indicate that the Veteran's back disability rendered him unemployable. While a private chiropractor indicated pain and spasms in the lower back in April 2010, there is no indication that such resulted in any functional impairment. Rather, VA treatment records indicate that, prior to March 2011, he only missed work due to food poisoning and a sore throat. Therefore, the Board finds that the evidence of record does not show that the Veteran's back disability rendered him unemployable. Moreover, the Board notes that the Veteran reported working part-time in 2010 and that he stopped working March 1, 2011. In this regard, the evidence does not suggest, nor does the Veteran contend, that he was working in a "protected work environment" during such time. In this regard, the Board recognizes that VA has not defined such term in the regulations governing TDIU claims. Cantrell v. Shulkin, 28 Vet. App. 382 (2017). Rather, the applicable VA regulations only suggest that a "protected environment" includes "a family business or sheltered workshop." 38 C.F.R. § 4.16(a). However, the Court indicated that factors to consider may include the "magnitude of the veteran's job responsibilities and the degree of accommodation necessary for successful, full-time work." Id. at 392. Additionally, in Judge Lance's concurring opinion, it was noted that where 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. Id. at 396. Therefore, the Board finds that the Veteran's employment prior to March 1, 2011, does not constitute a protected work environment. After a careful review of the record, the Board finds that a TDIU is not warranted for the appeal period prior to March 1, 2011, as the record indicates that the Veteran was employed, albeit part-time, in a substantially gainful employment. In this regard, the Board acknowledges that the Secretary has not defined "protected work environment;" rather, such is left to the Board's discretion on a case-by case basis. As such, the evidence does not show that the Veteran's employment constituted a protected work environment such that it may be considered marginal employment. Moreover, the evidence does not suggest that the Veteran's back disability rendered him unemployable during this time. Rather, VA treatment records indicate that the Veteran's lost time from work was due solely to unrelated illnesses. Consequently, the Board finds that, prior to March 1, 2011, a TDIU is not warranted. However, the evidence shows that the Veteran first reported experiencing back pain in March 2011. In this regard, the evidence indicates that in February 2011, he slipped on ice, which exacerbated his back injury. VA treatment records from March 2011 reveal reports of severe back pain radiating into the left lower extremity. Additionally, he reported that he had to leave work early on March 1, 2011, due to extreme pain and he was out of work for two weeks due to pain. At the time, the Veteran was given an excuse for one week and he subsequently requested an extension of work release because he was unable to sit or stand for any length of time due to his back pain. At the time, the Veteran was advised to rest in bed for a few days. Additionally, a May 2011 VA treatment record indicates that the Veteran's back had become more painful and incapacitating in recent months, and that he had been separated from his employment. Moreover, the Veteran reported periods of incapacitation occurred without warning and seriously inhibited his ability to work, as he did not know how he would feel day to day. At the June 2011 VA examination, the Veteran reported that he lost his job as a result of his back pain. Therefore, as of March 1, 2011, the date the Veteran stopped working due to his back disability, the Board finds a TDIU is warranted. Notably, VA treatment records indicate that the Veteran left work early on March 1, 2011, due to a previous back injury in which he fell on ice. Thereafter, the Veteran requested work releases from his treatment providers, and was prescribed bed rest. Thereafter, the Veteran was unable to return to work in a substantial capacity for the remainder of the appeal period, due to incapacitating episodes related to his back disability. Here, the Board notes that SSA records indicate that the Veteran reported his last date of employment was February 1, 2011; however, the evidence of record, notably VA treatment records, indicate that the Veteran was still employed in February 2011, in some capacity, prior to his injury. Therefore, the Board finds that as of March 1, 2011, a TDIU is warranted. Based on the foregoing, the Board resolves all doubt in favor of the Veteran and finds that, following his February 2011 back injury, his service-connected back disability rendered him unable to secure and follow a substantially gainful occupation consistent with his education and work history. Therefore, the Board finds that a TDIU is warranted as of March 1, 2011. 2. Entitlement to an effective date prior to January 19, 2013, for eligibility to DEA under 38 U.S.C. Chapter 35. Chapter 35 benefits, Survivors' and DEA, is a program of education or special restorative training that may be authorized for an eligible person, such as a child or surviving spouse, if the applicable criteria are met. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. Basic eligibility for certification of Survivors' and DEA benefits exists if the veteran: (1) was discharged from service under conditions other than dishonorable, or died in service; and (2) 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) died as a result of a service-connected disability; or, (5) if a serviceperson is on active duty as a member of the Armed forces and is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power. Service-connected disability or death must have been the result of active military, naval, or air service on or after April 21, 1898. The Board herein awards entitlement to a TDIU, effective March 1, 2011, which fulfills the requirement of a permanent and total service-connected disability for eligibility to DEA, as of such date. However, as the Board denies the award of a TDIU prior to March 1, 2011, and the award of TDIU fulfills the requirement of a permanent and total service-connected disability for eligibility to DEA, the Veteran did not meet any of the basic eligibility requirements for DEA under 38 U.S.C. Chapter 35. Accordingly, entitlement to an effective date of March 1, 2011, but no earlier, for the award of eligibility to DEA under 38 U.S.C. Chapter 35 is proper. CLAIRE M. DAVIDOSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.