Citation Nr: 22017692 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 09-19 106 DATE: March 25, 2022 ORDER Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) prior to March 6, 2012, is granted. FINDING OF FACT From November 21, 2008, to March 6, 2012, the evidence is at least in equipoise, that the Veteran's service-connected disabilities prevented him from maintaining substantially gainful employment. CONCLUSION OF LAW From November 21, 2008, to March 6, 2012, the criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in in the United States Navy from April 1965 to May 1969. In December 2015, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. In April 2016, the Board denied an earlier effective date for the 100 percent rating assigned to interstitial fibrosis, but remanded the issue of whether, prior to March 6, 2012, he was eligible for a TDIU. In May 2017, the Board denied a TDIU rating prior to March 6, 2012. The Veteran appealed that ruling to the United States Court of Appeals for Veterans Claims (Court). In November 2017, counsel for both parties filed a Joint Motion for Remand (JMR), in which they agreed that the Board's May 2017 decision failed to adequately explain its finding that, prior to March 6, 2012, the Veteran was not engaged in "marginal employment" as the term is used in 38 C.F.R. § 4.16(a). By granting the JMR, the Court vacated the Board's denial of a TDIU rating prior to March 6, 2012, and remanded the issue back to the Board. In June 2018 and July 2019, the Board remanded the case to the AOJ, with instructions to obtain further information about the Veteran's employment at the relevant time. Entitlement to a TDIU due to service-connected disabilities prior to March 6, 2012. The Veteran contends that his service-connected disabilities prevented him from maintaining substantially gainful employment since 2008. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). 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. 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. The Board observes that the Veteran met the schedular requirements to entitlement to TDIU beginning on November 21, 2008. During this time, service connection was established for bilateral interstitial fibrosis (herein after referenced as a respiratory condition), rated at zero percent; PTSD, rated at 50 percent; lichen simplex chronicus with tinea pedis, rated at 30 percent from February 5, 2008; tinnitus, rated at 10 percent, and bilateral hearing loss, which was noncompensable. His combined rating disability rating was 70 percent. In August 2009, the Veteran afforded a VA mental health examination. The Veteran endorsed frequent irritability and outbursts of anger that impacted his daily functioning. His post service work history was marked by interpersonal difficulties with supervisors and coworkers. The VA examiner indicated that the Veteran had difficulty being around people including family members. The Veteran had difficulty coping with symptoms at work. He also experienced interference in performing activities of daily living. The VA examiner concluded that the experienced occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms included panic attacks more than once per week; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. In August 2011 the Veteran was afforded a VA respiratory examination. The Veteran's bilateral interstitial fibrosis with chest wall pleural plaques was manifested by cough with purulent sputum, orthopnea, and shortness of breath at rest. He endorsed respiratory infections twice per year that lasted for a week. The VA examiner concluded that the Veteran's service-connected respiratory disorder did not impact his ability to maintain substantially gainful employment. The Veteran's March 2012 VA Form 21-8940 indicates that the Veteran last worked full time in 2008 as an accountant. The Veteran explained that he was unable to work due to his respiratory disability and diabetes. If his family did not own the business, he would be unable to work. He was unable to maintain a parttime work schedule. In March 2013, the Veteran filed another VA Form 21-8940. The Veteran indicated that he last worked full-time in December 2011 as tax preparer. He elaborated that he was unable to sit for long periods of time because of his breathing and poor circulation which caused his legs to go numb and swell. He attached a statement that he was only able to work a few hours per day before needing to go to bed to rest due to coughing and shortness of breath. In March 2013, D.R., J.M,S.D.. and R.F., wrote that the Veteran could not walk far before having to sit and catch his breath. The Veteran's conditioned had worsened in the last 3 years. He explained that the Veteran would be unable to do any type of work. Also, in March 2013, C.T. and T.A., wrote that they had witnessed the Veteran coughing to the point that he did not think the Veteran would be able to catch his breath. In May 2013, J.I., a co-worker of the Veteran, wrote that his breathing problems had gotten progressively worse. The walk from the Veteran's car to the office left him winded. J.I. indicated that these problems had been ongoing for 7 years. Also, in May 2013, A.E. wrote that the Veteran had been her customer for several years. She had witnessed him having continuous breathing problems which made her concerned for his health. He displayed extreme shortness of breath and continuous coughing. In September 2019, the Veteran wrote that he worked for a family business from 2008 to 2012. He was only able to work parttime due to medical reasons. Regarding the respiratory disability, the evidence is unclear regarding whether this disability rendered the Veteran unemployable in 2008 or 2011. The Veteran's statements in the record are conflicting. However, the record clearly shows that the Veteran has been employed in a family business and benefited from employment in a protected environment throughout the appeal period. As discussed above, this constitutes marginal employment. The August 2009 VA mental health examination finds demonstrate that the Veteran was unable to work outside of a protected setting. In this regard, the VA examiner found that the Veteran had difficulty with the activities of daily living and experienced difficulty coping with PTSD symptoms at work. At times, the Veteran found it difficult to be around family. Therefore, TDIU is warranted effective November 21, 2008. This is the effective date of the Veteran's award of service connection for PTSD and the date he met the schedular requirements for TDIU. Because the Board is awarding a TDIU based on the functional impairment caused by the Veteran's PTSD, an effective date prior to November 11, 2008, is not warranted. As a final matter, the Board finds the Veteran is not entitled to an award of TDIU beginning on and after March 6, 2012. In a May 2013 rating decision, the Veteran was awarded a 100 percent disability evaluation for his respiratory condition, effective March 6, 2012. While receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU, in the Veteran's appeal it does. See Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008). Specifically, the May 2013 rating decision awarded the Veteran entitlement to special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 350(i) for his respiratory condition and PTSD. Therefore, as any additional award would be a duplicative counting of disabilities, entitlement to a TDIU beginning on and after March 6, 2012, is moot. In conclusion, entitlement to a TDIU is granted from November 21, 2008, to March 6, 2012. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.