Citation Nr: 25009258 Decision Date: 07/16/25 Archive Date: 07/16/25 DOCKET NO. 18-05 431 DATE: July 16, 2025 ORDER For the entire period on appeal, a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment throughout the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1986 to February 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In April 2019 and December 2022, the Board remanded the case for further development and adjudicative action. In a July 2023 decision, the Board denied the increased rating claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a May 2024 Court Order granting a Joint Motion for Remand (JMR), the Court vacated the Board's July 2023 decision and remanded the case for further development in compliance with the directives specified in the JMR. In August 2024, the Board remanded the case to comply with the terms of the JMR. After completing the necessary development, the RO readjudicated the case by way of a February 2025 rating decision and supplementary statement of the case (SSOC). In April 2025, the Board raised the issue of entitlement to a TDIU as allowed under Rice v. Shinseki. In June 2025, the RO issued a rating decision and SSOC denying the claim of entitlement to a TDIU. TDIU An award of TDIU "does not require proving 100 percent unemployability." Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, an award of TDIU requires that the claimant show an inability "to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). When making this determination, "the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (internal citations and quotations omitted). Additionally, the Board "must take into account the individual veteran's education, training, and work history" but "may not consider [nonservice]-connected disabilities or advancing age." Id. (internal citations omitted). The phrase "substantially gainful employment" has an economic component and a non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). "The economic component simply 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." Id. The noneconomic component goes to the veteran's individualized ability to secure and follow substantially gainful employment. Ray, 31 Vet. App. at 73. Attention must be given to the veteran's history, education, skill, and training, whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy). Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, and auditory and visual limitations; whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. These factors do not constitute a checklist; rather, "discussion of any factor is only necessary if the evidence raises it." Id. "'[E]mployment in a protected environment' ... unambiguously means employment in a lower-income position that, due to the veteran'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 (CAVC 2024). Neither employer intent nor accomodation is dispositive. Id. When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies to circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred one year prior to the claim, the increase is effective as of the date the increase is "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Dalton, 21 Vet. App. at 31-32. VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a). The same is true for disabilities resulting from common etiology or a single accident. 1. Entitlement to a TDIU The Veteran contends that his service-connected disabilities render him unable to secure or follow substantially gainful employment such that a TDIU is warranted. Initially, the Veteran meets the schedular criteria for consideration of a TDIU throughout the period on appeal, based upon a combined rating of at least 70 percent with a single disability rated as 40 percent disabling (i.e. diabetes mellitus, type II and associated radiculopathy and diabetic neuropathy of the left lower extremity and right lower extremity each rated as 20 percent disabling throughout the period on appeal). See 38 C.F.R. § 4.16(a). Accordingly, the dispositive issue is whether his service-connected disabilities rendered him unable to secure or follow substantially gainful employment throughout the period on appeal. In this case, the issue of entitlement to a TDIU was raised by the Board in the April 2025 in acknowledgement of the Veteran's August 2024 Appellate Brief. In that document, the Veteran through his attorney stated that he was unable to secure or follow substantially gainful employment due to his numerous service-connected disabilities. The Veteran stated that he was retired, and that he "has not engaged in substantially gainful work (above marginal income)." In April 2025, VA advised the Veteran that additional information was needed to address the claim. Specifically, VA requested that the Veteran submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability to provide necessary information concerning the Veteran's employment history and to identify the disabilities which he believed rendered him unable to secure or follow substantially gainful employment. In that same form, the Veteran was instructed to submit a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability, for any employers identified in the VA Form 21-8940. Despite being notified in April 2025 that such documents were necessary to adjudicate the claim for entitlement to a TDIU, the Veteran did not respond to VA's requests for VA Forms 21-8940 and 21-4192. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The Board will proceed with the available evidence of record. In April 2016, the Veteran told a VA social worker that he "works as an Administrative Officer in the United States." Several years prior, he similarly reported working as an "Administrative Officer at the [VA], South Texas Veterans Health Care System." See February 2009 VA case manager note. However, a December 2021 VA psychology note shows that the Veteran requested to be seen for depressive mood in context to financial and work-related issues and chronic pain. He reported low moods after "numerous" attempts to acquire a job, but that he had been out of work for "over 10 years" despite possessing a master's degree. Without any evidence in the record to conflict with the Veteran's report to his VA provider in December 2021 that he was not employed for the prior decade, and without evidence that he has since become employed, the Board is satisfied that the Veteran was indeed unemployed throughout the period on appeal. Moreover, a review of the medical evidence, including VA examination findings from March 2023, show that the Veteran's service-connected disabilities including bilateral lower extremity radiculopathies cause significant occupational impairment. For instance, his bilateral lower extremity radiculopathies cause constant numbness and significant balance issues. The Veteran is a fall risk, as documented in VA primary care notes. Thus, it follows logically that the Veteran's service-connected neuropathies would create a significant health risk were he to pursue nearly any form of employment. Accordingly, the Veteran's service-connected disabilities as a whole rendered him unable to secure or follow substantially gainful employment throughout the period on appeal. Each element of the TDIU claim is met. A TDIU is granted for the entire period on appeal. Paulette Vance Burton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hukill, Benjamin 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.