Citation Nr: 25004885 Decision Date: 04/10/25 Archive Date: 04/10/25 DOCKET NO. 16-17 059 DATE: April 10, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 14, 2021, is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, the evidence of record persuasively shows that the Veteran was precluded from engaging in substantially gainful employment due to his service-connected disabilities prior to January 14, 2021. CONCLUSION OF LAW The criteria for a TDIU prior to January 14, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the United States Army from July 1968 to June 1970. This matter is on appeal from a June 2015 rating decision. In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. In November 2021, the Board denied entitlement to a TDIU prior to January 14, 2021. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In a March 2023 Memorandum Decision, the Court set aside the Board's November 2021 decision and remanded the matter to the Board for further proceedings. In October 2023 and November 2024, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Entitlement to TDIU prior to January 14, 2021 The Veteran raised entitlement to TDIU during his increased rating claims for back and bilateral hearing loss. Therefore, the issue of TDIU was part and parcel of his increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). A September 2021 rating decision granted entitlement to TDIU, effective January 14, 2021, the date the Veteran met the schedular criteria for TDIU. As the Veteran's increased rating claims dates back to December 15, 2014, the Board must consider TDIU back to this date. See Harper v. Wilkie, 30 Vet. App. 356(2018). VA regulations allow for the assignment of a total disability rating based on individual unemployability when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). Marginal employment shall not be considered substantially gainful employment. Marginal employment is not considered substantially gainful employment and is 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. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). Whether a veteran is capable of more than marginal employment must be considered even if the veteran is not working. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016) (concluding that the terms "substantially gainful occupation" and "substantially gainful employment" in § 4.16 are "synonymous"). Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, C&P Service, for extraschedular consideration. 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 TDIU on an extraschedular basis to the Director, C&P Service. Bowling v. Principi, 15 Vet. App. 1 (2001). In Snider v. McDonough, the Court discussed the steps the Board must take to deny referral of an extraschedular TDIU. Pursuant to Ray v. Wilkie, 31 Vet. App. 58 (2019), entitlement to an extraschedular TDIU must be referred to the Director, Compensation Service, for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. When denying extraschedular TDIU referral, the Board must determine both of the following: 1) that a referral is not warranted under the "reasonable possibility" standard; and 2) that TDIU benefits are not warranted because the veteran is not unemployable due to service-connected disabilities. Snider, 35 Vet. App. 1 (2021). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. From December 15, 2014, to January 14, 2021, the Veteran is service connected for lumbar spine disability, rated 20% disabling; bilateral hearing loss disability, rated as noncompensable prior to July 3, 2019, and 10 percent thereafter; and tinnitus, rated 10% disabling. Accordingly, the Veteran did not meet the schedular requirements for consideration of a TDIU prior to January 14, 2021. 38 C.F.R. § 4.16 (a). Therefore, the only basis for the assignment of a TDIU is on an extraschedular basis. See 38 C.F.R. § 4.16 (b). Although the Veteran has not met the schedular percentage requirement, he may still be considered for a TDIU rating under 38 C.F.R. § 4.16(b) on an extraschedular basis, if unemployable by reason of service-connected disabilities that do not meet the percentage standards set forth in § 4.16(a). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). His service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Turning to the evidence, on May 2015 VA back disabilities examination the examiner opined that the Veteran's back disability impacted his ability to work. Specifically, he could not perform vigorous physical activities due to back disability. On June 2015 VA hearing loss and tinnitus examination the audiologist opined that the Veteran's hearing loss and tinnitus did not impact his ability to work. In a March 2016 statement, the Veteran indicated that he was unable to certain tasks as his job at a convenience store due to back pain. At a June 2019 Board hearing, the Veteran reported working at a convenience store and having to change boxes of 60 to 70 pounds of syrup in the soda fountain machines. He reported he could not do the work anymore and his co-workers would get upset because they would have to do his work. He also reported trouble hearing his customers and having to repeat his questions. The Veteran's friend testified when he talks to the Veteran, he has to make sure he is on the right side. He reported the Veteran was not able to do his job as far as the lifting and the embarrassment of not being able to hear the customers. A July 2019 private treatment visit shows the Veteran complained of back pain. He reported that he stopped working due to not being able to lift. On January 2020 VA back disabilities examination the Veteran complained of back pain aggravated by bending, walking, standing, lifting, and sitting. He reported he had to stop working due to his back. The clinician opined his lumbar disability impacted his ability to work due to limited lifting of over 20 pounds. On January 2020 VA hearing loss and tinnitus examination, the audiologist opined that the Veteran's hearing loss and tinnitus impacted his ability to work. The Veteran reported having to quit working at a convenience store because he could not hear what customers were saying. He reported it was difficult hearing in noisy environments and in group situations. In October 2020, the Board remanded the Veteran's claim for entitlement to a TDIU, to include on an extraschedular basis, to have an examiner provide a retrospective opinion regarding the impact of the Veteran's service-connected disabilities on his ability to work, including a functional assessment of the Veteran's service-connected disabilities and the occupational limitations associated with these conditions. The Board noted that the Veteran reported at VA examinations of the lumbar spine in May 2015 and in January 2020 and during private treatment in July 2019 that his low back disability affected his ability to work. Pursuant to the Board's October 2020 remand, on January 2021 VA hearing loss and tinnitus examination the audiologist opined that the Veteran's hearing loss and tinnitus impacted his ability to work. The Veteran stated that some days he heard better than other days and needed people to repeat themselves. He also stated that his tinnitus was annoying and made it hard to sleep or hear. In a January 2021 individual unemployability statement the VA audiologist opined that with proper hearing and/or adaptive devices, the Veteran had no work restrictions for hearing loss or tinnitus. On January 2021 VA back disabilities examination the examiner diagnosed the Veteran with degenerative arthritis of the spine, intervertebral disc syndrome, and bilateral lower extremity radiculopathy. The examiner reported the Veteran's back disability impacted his ability to work. The examiner reported he was limited in bending, stooping, pushing, pulling, carrying/lifting moderate objects, hauling, running, standing, sitting, walking, climbing, squatting, and standing. She also noted that his moderate to severe limitation of his axial skeleton was affecting his emotional well-being, negatively impacting his quality of life, interfering with normal activities and attendance, and decreasing productivity and efficiency. The examiner also determined that the Veteran was unable to consistently perform sedentary work or usual daily activities of daily living due to service-connected disabilities. In a January 2021 individual unemployability statement the clinician opined that the Veteran was unable to consistently perform sedentary work or usual daily activities of daily living due to his low back disability. In May 2021 the Board again remanded the claim. The Board stated that evidence in the claims file indicates the Veteran worked during a portion of the appeal period. It was unclear whether the work was part-time or full-time and if/when the Veteran stopped working. The Board stated that this information is essential to adjudicate the Veteran's TDIU claim. On remand, the Board asked the Veteran to complete an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Pursuant to the May 2021 remand, in June 2021 the Veteran provided an Application for Increased Compensation Based on Unemployability reported his back injury prevented him from substantial gainful employment. He reported last working at a convenience store from 2016 to 2018 and stated that he became too disabled to work as of June 15, 2018. He indicated that he completed two years of high school. In November 2021 the Board denied the Veteran's claim. In denying the claim, the Board found that the Veteran's service-connected disabilities would allow him to perform unskilled work that did not require lifting over 20 pounds, such as a parking lot attendant, ticket taker/seller, or toll collector. In a March 2023 Memorandum Decision, the Court remanded the Veteran's claim for entitlement to a TDIU due to service-connected disabilities prior to January 14, 2021, to provide an adequate statement of reasons or bases addressing whether VA substantially complied with the terms of the October 2020 Board remand. The Court noted that the Board is not required to consider "availability of work in making a TDIU determination." Citing Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011) ('a TDIU determination does not require any analysis of the actual opportunities available in the job market'). See Court Mem. Dec. (March 20, 2023), at Page 4. The Court stated, "...this principle does not apply where the Board itself identifies occupations appellant could perform and relies on those occupations to deny a TDIU rating. The Board here, of its own accord, found that appellant could be a parking lot attendant or a ticket and toll collector. Thus, the Board raised the issue whether appellant had the physical and mental capabilities to perform such work and was required to provide a complete analysis concerning this question." Id. Finally, the Court noted that the appellant argued that the Board clearly erred by failing to ensure substantial compliance with the October 2020 remand since the January 2021 VA examiners failed to provide a retrospective opinion regarding the impact of the Veteran's service-connected disabilities on his ability to work. On remand, the Court ordered the Board to address whether VA substantially complied with the terms of the October 2020 remand. In the October 2023 remand, the Board found that the January 2021 VA examiner failed to provide the requested retrospective opinion regarding the impact of the Veteran's service-connected disabilities on his ability to work, including a functional assessment of the Veteran's service-connected disabilities and the occupational limitations associated with the disabilities, and thus, the Board found that the AOJ did not substantially comply with the Board's October 2020 remand directives. The Board remanded the case to obtain a retrospective opinion regarding the impact of the Veteran's service-connected disabilities on his ability to work and for referral of the claim to VA's Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. Following the Board's October 2023 remand, the Veteran was provided a VA back disabilities examination in November 2023. The examiner provided an assessment of the functional impact of his back disability but did not provide a retrospective opinion for the period prior to January 2021. The AOJ requested an addendum opinion; however, in an April 2024 opinion, the examiner addressed the Veteran's functional impact based on the November 2023 VA back examination and did not address the period prior to January 2021. The AOJ requested another addendum opinion, and in a May 2024 opinion, the VA examiner addressed the functional impact of the Veteran's back disability for the period prior to 2021. The examiner opined that although the Veteran was seen for lower back and reports difficulty bending with radiating pain to extremities, there is no MRI to support evidence of further limiting function of his lower back. On this basis the examiner opined that the Veteran's back disability did not affect sedentary work or being able to lifting a small amount of weight of about 25 lbs. However, the examiner failed to address the functional impact of the Veteran's other service-connected disabilities (hearing loss and tinnitus). In June 2024, the Veteran was provided a VA hearing loss and tinnitus examination. However, the examiner did not address the functional impact of his hearing loss. The examiner addressed the functional impact of his tinnitus but did not provide a retrospective opinion for the period prior to January 2021. The AOJ referred the Veteran's claim for entitlement to a TDIU on an extraschedular basis, and in an August 2024 Advisory Opinion, VA's Executive Director of Compensation Service denied entitlement to a TDIU for the period prior to January 14, 2021. Specifically, the Executive Director conceded that the Veteran's service-connected disabilities could cause occupational limitations. However, the preponderance of evidence did not show that the Veteran as unable to obtain or maintain gainful employment due to his service-connected disabilities prior to January 14, 2021. In November 2024 the Board again remanded the Veteran's claim finding that substantial compliance with the prior remand directives was not achieved. No examiner provided a retrospective opinion addressing the functional impact of the Veteran's bilateral hearing loss and tinnitus for the period prior to January 2021. Pursuant to the Board's November 2024 remand, in a December 2024 VA medical opinion an examiner opined that the VA examinations have shown steady progression of limitations due to bilateral lower extremity radiculopathy and degenerative back disease since 2015. The examiner opined that the Veteran's left leg radiculopathy would limit most forms of physical employment opportunities and would require significant accommodations. However, the Veteran was not service-connected for radiculopathy of the lower extremities until January 2021. After review of the evidence, the Board finds that the persuasive evidence supports a finding that prior to January 14, 2021, the Veteran's combined disability picture rendered him unemployable. Resolving all doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted prior to January 14, 2021. The Board has also considered whether SMC at the housebound rate is warranted, even though not expressly raised. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see Buie v. Shinseki, 24 Vet. App. 242 (2010) (requiring VA to assess all of the claimant's disabilities to determine whether entitlement to SMC under 38 U.S.C. § 1114 (s) is established whenever a veteran with a total disability rating is subsequently awarded service connection for any additional disability or disabilities even in the absence of an express claim for SMC). However, SMC benefits are not warranted in this case as the Veteran does not have a single disability rated as total along with additional disabilities that total 60 percent. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (holding that a TDIU rating could qualify for compensation at the 38 U.S.C. § 1114 (s) rate, but only if the TDIU was based on a single disability). Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.