Citation Nr: 18160507
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 09-08 895
DATE:	December 27, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to May 29, 2008, is granted.
FINDING OF FACT
The Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful employment for the period prior to May 29, 2008.
CONCLUSION OF LAW
The criteria for entitlement to a TDIU due to service-connected disabilities were met for the period prior to May 29, 2008.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active military service from June 1993 to October 1998, and from December 2003 to April 2005.
This appeal comes to the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. 
The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2009.  A transcript of the hearing has been associated with the claims file.   
In July 2014, the Board found that the issue of TDIU had been raised by the record under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), and remanded the issue for further development.  In February 2016, the Board remanded the issue for further development.
In a September 2016 rating decision, the RO granted entitlement to a TDIU from December 29, 2011.  In May 2017, the Board denied TDIU for the appeal period prior to December 29, 2011.
The Veteran appealed the May 2017 Board determination to the United States Court of Appeals for Veterans Claims (Court).  In December 2017, the Court issued an order granting the parties’ Joint Motion for Partial Remand (JMPR), vacating the part of the Board’s decision that denied the claim for a TDIU prior to December 29, 2011, and remanding the issue back to the Board for compliance with the JMPR.  
In August 2018, the Board granted TDIU from May 29, 2008 to December 28, 2011, but remanded TDIU for the appeal period prior to May 29, 2008.  Therefore, the issue of entitlement to a TDIU prior to May 29, 2008, is currently before the Board.  
Entitlement to a TDIU due to service-connected disabilities prior to May 29, 2008.  
In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018).  In reaching such a determination, the central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993).
“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. For purposes of 38 C.F.R. § 4.16, 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 as the poverty threshold for one person.  Marginal employment may also be held to exist, on a fact 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.  38 C.F.R. § 4.16(b) (2018).
In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an 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.  A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated.  Additionally, a veteran may be granted TDIU despite being employed and having an income in excess of the poverty line if his employment is sheltered.  Cantrell v. Shulkin, 28 Vet. App. 382 (2017).
The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993). 
The applicable regulations place responsibility for the ultimate TDIU determination on the VA adjudicator, not a medical examiner.  Gelb v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  TDIU is to be awarded based on the judgment of the rating agency.  Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).
The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation.  In such an instance, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that 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.   For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities or affecting a single body system will be considered as one disability.  38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018).  It is also the policy of VA, however, 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(b) (2018).  Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability.  38 C.F.R. § 4.16(b) (2018); see also Fanning v. Brown, 4 Vet. App. 225 (1993).
Currently, the Veteran is service-connected for: posttraumatic stress disorder (PTSD) rated at 30 percent from April 12, 2005, 50 percent from September 1, 2006, and 70 percent from February 7, 2011; right Achilles tendonitis rated at 10 percent from April 12, 2005 and 20 percent from September 1, 2006; spondylolysis rated at 10 percent from May 29, 2008; left Achilles tendonitis rated at 10 percent from May 29, 2008; tinnitus rated at 10 percent from October 18, 2012; and residuals of nose fracture with deviated nasal septum and sinusitis rated at 0 percent from April 12, 2005.  The combined rating is 40 percent from April 12, 2005; 60 percent from September 1, 2006; 70 percent from May 29, 2008; and 80 percent from February 7, 2011.
For the appeal period prior to May 29, 2008, due to the fact that the Veteran did not meet the rating requirements under 38 C.F.R. § 4.16(a), in an August 2018 decision/remand, the Board remanded the issue for referral to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b).  
In September 2018, the RO drafted a memorandum to the Director of Compensation Service recommending a finding that available evidence from VA examinations and private treatment reports supported the Veteran’s contention that his service-connected disabilities or a combination of the effects of the disabilities prevented all types of gainful employment.  The RO suggested that TDIU should be granted on an extraschedular basis prior to May 29, 2008.  However, in October 2018, the Director of Compensation Service issued a memorandum denying entitlement to TDIU benefits for the period prior to May 29, 2008, finding that none of the available objective medical evidence supported the Veteran’s contention that any of his service-connected disabilities or a combination of the effects of the disabilities prevented all types of gainful activity for that time period.  
The Board finds that the evidence of record establishes that the Veteran is unable to secure or follow a substantially gainful occupation for the period prior to May 29, 2008.  Ultimately, it is the responsibility of adjudicator to make the final determination regarding employability.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  
The record reflects that the Veteran has been struggling with employment since April 2005 due to his service-connected disabilities.  He has not held a full-time position since that time.  In the Veteran’s February 2017 affidavit, he reported that he worked as a plumber with his family’s business from April 2005 to October 2006; however, he was only able to work about 20 to 30 hours per week due to his service-connected disabilities.  He suffered from PTSD symptoms daily that interfered with his ability to interact with coworkers and supervisors.  The Veteran reported that it was a constant struggle for him to keep his temper under control.  Also, the Veteran’s tendonitis, back pain, and chronic Achilles pain prevented him from being able to use ladders or stairs, which were required daily when he was working as a plumber.  The Veteran asserted that due to the sheltered nature of his employment and the struggles he had with his service-connected disabilities, he was able to leave work early or not come in at all when the severity of the pain in combination with his mental state was too much for him to bear.  However, he would not get paid when he left for work early or did not come in.  In October 2006, he stopped working altogether as a result of his chronic pain and PTSD.  The severity of the symptoms got to a point where he could not get out of bed most days.  In March 2008, he attempted to work at a plumbing company, where he averaged about 20 hours per week.
The Board agrees with the Veteran that his work as a plumber with his family’s business can be characterized as “sheltered” employment.  This employment was within a protected environment, a family business, and, therefore, should be considered marginal employment.  
In an August 2005 VA examination for PTSD, the VA examiner noted that although the Veteran was currently working, the Veteran’s PTSD symptoms were making employment difficult.  During his September 2006 VA examination for his joints, the Veteran complained that the pain in his right Achilles tendon had gotten worse.  It was getting harder for him to do his job as a plumber and it was very hard to go up and down the ladder.  It was also difficult for him to crawl under houses.  He was unable to do any prolonged standing, running, or walking.  On his September 2006 VA psychiatric examination, the VA examiner concluded that he did not find that the Veteran’s PTSD symptoms precluded employment.  On his September 2006 VA examination for nose/sinus, the Veteran asserted that his recurring sinusitis condition had consisted of non-seasonal facial swelling, pressure pain, and nasal obstruction.  He had headaches associated with it and averaged one episode per month.  The Veteran reported that he had difficulty in many of his environmental positions at work, where he could not work at all due to acute swelling and nasal obstruction that occurred.  
In March 2013, a VA Form 21-4192 Request for Employment Information, was submitted by the Veteran’s former employer, a plumbing company.  It was noted that the Veteran began working in March 2008, but his employment ended in December 2011.  It was reported that the time that the Veteran lost due to his service-connected disabilities during the 12 months preceding his last date of employment was 90 percent.  Further, the Veteran only worked an average of 6 hours per week.  
In August 2015, the Veteran submitted an employability evaluation report, dated July 2015, written by a vocational rehabilitation consultant, M.L.  M.L. thoroughly reviewed the Veteran’s claims file, to include medical history.  In the evaluation report, the consultant provided a detailed summary of the Veteran’s medical treatment for his service-connected disabilities.  The consultant also noted the limitations expressed by the Veteran that he perceived his PTSD, Achilles tendonitis, spondylosis, and tinnitus caused.  Further, the consultant took into account the Veteran’s work history and education.  M.L. opined that it was at least as likely as not that the Veteran’s service-connected disabilities prevented him from securing and following a substantially gainful occupation.  The Veteran’s unfortunate status of “unemployability” (being unable to secure and follow substantially gainful employment) had been maintained since the year of 2005, occurring immediately after the Veteran’s return from Iraq.  The Veteran would be unable to engage in employment activities that required standing and/or walking to any significant degree due to limitations imposed by his Achilles and back conditions.  The VA claim file was replete with references to the Veteran’s symptoms and limitations.  The Veteran would also be unable to work in a production setting due to many reasons, including the panic attacks that would lead to unacceptable absenteeism, his inability to work in close proximity to others, his need to work in a low volume environment, his inability to work as a member of a team, the frustration levels that he would experience, drowsiness, his tinnitus, inability to work around dangerous machinery, and diminished concentration.  Further, the consultant explained that medical documentation from 2006 suggested a worsening of symptoms, that would interfere with the Veteran’s ability to sustain employment.  In addition, the Veteran had decreased concentration, diminished physical functioning, poor sleep, and a poor memory.  The Veteran’s problems continued to be well documented into 2006 and 2008, but it was also noted that the Veteran was working at that time in a sheltered/protected work environment, as well as having been capable of working only a part-time basis.  The vocational consultant reported that earnings during those years were also extremely low; well below earnings for plumbers.  
Moreover, a review of the record reflects the Veteran’s income was $14,395 in 2005; $1,189 in 2006; $9,236 in 2007; $16, 908 in 2008; $540 in 2009; $0 in 2010; and $0 in 2011.  See May 2010 SSA/SSI Letter.  With the exception of the years 2005 and 2008, the Veteran’s income shows that he has had marginal employment.  See U.S. Department of Health & Human Services, Office of the Assistant Secretary for Planning and Evaluation, Prior HHS Poverty Guidelines and Federal Register References, https://aspe.hhs.gov/prior-hhs-poverty-guidelines-and-federal-register-references. 
It is clear that the Veteran is unable to unable to secure or follow a substantially gainful occupation for the period prior to May 29, 2008.  Based on the evidence presented above, including the competent and credible lay statements provided by the Veteran, the various VA examinations, and the vocational rehabilitation report, the Board finds that the Veteran’s service-connected disabilities precluded substantially gainful employment prior to May 29, 2008. 
						(CONTINUED ON NEXT PAGE)
 

Accordingly, entitlement to a TDIU is warranted for the period prior to May 29, 2018.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
BARBARA B. COPELAND
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Crawford, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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