Citation Nr: 25007945 Decision Date: 06/13/25 Archive Date: 06/13/25 DOCKET NO. 15-06 982 DATE: June 13, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from November 17, 2009, to December 31, 2010, is denied. Entitlement to TDIU from January 1, 2011, to February 21, 2017, is granted. Basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. chapter 35 from November 17, 2009, to December 31, 2010, is denied. Eligibility to DEA under 38 U.S.C. chapter 35 from January 1, 2011, to February 21, 2017, is granted. FINDINGS OF FACT 1. The Veteran has been employed substantially and gainfully from November 17, 2009, to December 31, 2010. 2. From January 1, 2011, to February 21, 2017, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. 3. From November 17, 2009, to December 31, 2010, the Veteran was not permanently and totally disabled. 4. From January 1, 2011, to February 21, 2017, the Veteran was permanently and totally disabled. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU from November 17, 2009, to December 31, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 2. The criteria for entitlement to TDIU from January 1, 2011, to February 21, 2017, 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 basic eligibility to DEA under 38 U.S.C. chapter 35 from November 17, 2009, to December 31, 2010, have not been met. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. 4. The criteria for basic eligibility to DEA under 38 U.S.C. chapter 35 from January 1, 2011, to February 21, 2017, have been met. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1994 to March 1995 and from November 2003 to March 2005. He had additional service in the Army National Guard of Florida. This matter came before the Board on appeal from a July 2018 rating decision by the Agency of Original Jurisdiction (AOJ) that granted service connection for a back disability and assigned an initial 10 percent disability rating from November 17, 2009. The Veteran subsequently challenged the initial rating assigned, and the merits of that claim were finally decided by the Board in April 2020 and July 2021 decisions. In its July 2021 decision, the Board also found that the issue of entitlement to a TDIU was raised as part and parcel of the back rating issue during the appeal, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In September 2023, the Board granted TDIU and eligibility for DEA from February 22, 2017, and remanded the issue of entitlement to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) to the Director of the Compensation Service (Director). The Director denied the claim. See September 2024 administrative decision. The AOJ has now returned the matter to the Board for further appellate consideration. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). Recently, the Court of Appeals for Veterans Claims (Court) has defined "employment in a protected environment," which is a type of marginal employment, as "employment in a lower-income position that, due to the [V]eteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." Labruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran does not currently meet the schedular criteria for TDIU prior to February 22, 2017. However, as stated above, the Board referred the claim to the Director for entitlement to extraschedular TDIU in September 2023. See 38 C.F.R. § 4.16(b). The Director denied the claim. See September 2024 administrative decision. However, the Director's decision is not evidence, but is rather akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities prior to February 22, 2017. As explained below, the medical and lay evidence of record shows that the Veteran's service-connected disabilities prevented him from obtaining substantially gainful employment from January 1, 2011, which is the date after the Veteran last worked full-time. The Board first notes that the Veteran is service connected for degenerative disc disease with chronic lumbosacral strain and bilateral lower extremity radiculopathy, and a left ankle disability as well as a left knee disability from November 17, 2009. 1. November 17, 2009, to December 31, 2010 The appeal period for this claim begins on November 17, 2009. Here, it is undisputed that he was working full-time before December 31, 2010, as a construction inspector and earned $57,600 a year in 2010. See May 2021 VA Form 21-8940. This exceeds the poverty threshold for one person, and the Veteran has not otherwise argued that he worked in a protected environment. Based on these facts, the Board concludes the Veteran was able to maintain substantially gainful employment from November 17, 2009, until he last worked full time on December 31, 2010. Thus, entitlement to TDIU prior to January 1, 2011, is denied. 2. January 1, 2011, to February 21, 2017 As stated above, the Veteran last worked full-time on December 31, 2010. See May 2021 VA Form 21-8940. At an August 2019 VA examination, a VA examiner found the Veteran could not perform as a mechanic because he could not bend, lift, or crawl. See August 2019 VA examination report. Further, he could no longer perform as a construction inspector because he could not stand, climb, or go up or down stairs. Id. He had similar impairments because of his left knee and ankle, as well as bilateral lower extremity radiculopathy. See September 2013 VA examination report. At a March 2010 VA examination, a VA examiner found the Veteran would be limited to half his usual daily activities when his back flared up. See March 2010 VA examination report. Importantly, his flare-ups were classified as severe, occurred weekly, and lasted hours. Id. His left ankle and knee would also contribute to stability and incoordination issues at work. See September 2013 and March 2010 VA examination reports. Id. Importantly, the Veteran's bilateral lower extremity radiculopathy contributed to numbness, paresthesias, leg or foot weakness, and falls. See March 2010 VA examination report (emphasis added). The Board notes that in the May 2021 VA Form 21-8940, the Veteran conveyed working just two hours per week as a notary. Such work is not substantially gainful. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical clinician's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the Veteran's physical limitations would make it difficult to stand or work without falling, while also making it difficult to concentrate and complete tasks on a full-time basis. As a result, the criteria for TDIU from January 1, 2011, to February 21, 2017, have been met. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021); 38 C.F.R. § 3.102. To the extent the Veteran argues TDIU is warranted based on his degenerative disc disease with chronic lumbar strain alone, the Board notes that SMC may be warranted if a Veteran has a 100 percent disability rating for a "single disability," and TDIU for a sole disability may satisfy this requirement. See Bradley v. Peake, 22 Vet. App. 280, 292 (2008). Nevertheless, as the use of "one disability" in the TDIU context was to assist certain veterans in reaching the baseline disability rating requirements to benefit from 38 C.F.R. § 4.16(a), no other purpose can be read into the regulation, including retaining the "one disability" designation to establish "a service-connected disability rated as total" for SMC eligibility. See Youngblood v. Wilkie, 31 Vet. App. 412, 417 (2019). In other words, the Court rejected the idea that primary and derivative service-connected disorders are to be considered one disability for purposes of TDIU and SMC. As a result, degenerative disc disease with chronic lumbar strain and lower extremity radiculopathy of each lower extremity are each supposed to be considered separately for purposes of a single disability to satisfy SMC. Here, as stated above, the Veteran's VA Form 21-8940 states he cannot work due because of a combination of his service-connected disabilities. See May 2021 VA Form 21-8940. Further, the Veteran has argued he left his primary vocation as a direct result of the mounting service-connected orthopedic disabilities and asked the Board to grant entitlement to TDIU for the Veteran who has not been able to work any more than a few hours a month at any point over the past decade as a direct result of his cumulative service-connected disabilities. See December 2022 brief (emphasis added). As the Veteran's back disability, and lower extremity radiculopathy of each lower extremity by itself did not prevent the Veteran from working, and he has otherwise argued it is a combination of his disabilities that prevent him from working, the Board finds entitlement to TDIU based on a single, service-connected disability is not warranted. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021); 38 C.F.R. § 3.102. DEA VA's regulations require VA to render a decision which grants every benefit that can be supported by law while protecting the interests of the Government. Because the Board has determined that the Veteran is entitled to TDIU and his service-connected disabilities render him permanently and total disabled from January 1, 2011, to February 21, 2017, basic eligibility to DEA is warranted from January 1, 2011, to February 21, 2017. 38 U.S.C. Ch. 35; 38 C.F.R. § 3.807. As the Veteran's service-connected disabilities do not render him permanently and total disabled from November 17, 2009, to December 31, 2010, basic eligibility to DEA is not warranted from November 17, 2009, to December 31, 2010. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Salazar, 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.