Case 23012717

NEIL T. WERNER · 2023 · Case ID: 23012717

GRANTED

Summary

The Veteran, who served from August 2003 to December 2010, appeals the denial of a total disability rating based on individual unemployability (TDIU). The Veteran claims his service-connected disabilities prevent him from engaging in substantially gainful employment. The Board reviewed the Veteran's work history, including his last employment as a barber from June 2018 to November 2020, where he earned $12,000 annually, which was below the poverty threshold for a single person. The Veteran has multiple service-connected disabilities, including PTSD (70%), Crohn's disease (30%), lumbosacral strain (10%), right knee chondromalacia patella (10%), migraines (10%), tinnitus/hearing loss (10%), and a pilonidal cyst scar (0%). The Board found that the Veteran met the schedular requirements for TDIU, as he has a 70% disability rating from PTSD and a combined rating exceeding 70% with his other service-connected conditions. The Board considered the Veteran's testimony and a letter from his cousin, who provided an accommodating work environment at his salon. The VA examinations indicated that the Veteran's PTSD and Crohn's disease significantly impacted his ability to work, causing anxiety, frequent bathroom trips, and difficulty interacting with others. The Board concluded that the Veteran's combined service-connected disabilities render him incapable of substantially gainful employment, granting the TDIU claim.

Rationale

Veteran meets schedular requirements for TDIU (one disability rated 40%+, combined rating 70%+); Veteran's service-connected disabilities (PTSD 70%, Crohn's 30%, etc.) prevent substantially gainful employment; Income from last employment below poverty threshold; worked in accommodating environment

Special Benefit

TDIU

Docket No.

18-08 276

Full Decision Text

Citation Nr: 23012717
Decision Date: 03/01/23 Archive Date: 03/01/23

DOCKET NO. 18-08 276
DATE: March 1, 2023

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

FINDING OF FACT

The Veteran's service-connected disabilities preclude substantially gainful employment.

CONCLUSION OF LAW

The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 2003 to December 2010.

This matter comes before the Board of Veterans' (Appeals) Board on appeal from an October 2016 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO).

In March 2021, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A transcript has been associated with the claims file.

Entitlement to a TDIU.

The Veteran claims he is entitled to a TDIU because his service-connected disabilities prevent him from working.

Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341.

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render his incapable of substantial gainful employment. 38 C.F.R. § 4.16 (a).

A TDIU may be assigned where the schedular rating is less than total if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a).

An award of a TDIU is predicated upon a claimant being unable to engage in "substantially gainful" employment which has been defined as income not exceeding the poverty threshold for one person. Faust v. West, 13 Vet. App. 342, 356 (2000); 38 C.F.R. § 4.16 (a); Bowling v. Principi, 15 Vet. App. 1, 7 (2001). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment may be held to exist, on a facts-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.

The Board recognizes that "protected environment" has not been expressly defined by regulation. Merriam-Webster's Collegiate Dictionary offers several definitions of the word "protect," but one that appears to be applicable in this inquiry is "to save from contingent financial loss." See Merriam-Webster's Collegiate Dictionary (online). "Contingent" can mean "likely but not certain to happen: possible." Id. Thus, within the context of awarding a TDIU, a protected work environment exists when one's employment is not based
-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.

The Board recognizes that "protected environment" has not been expressly defined by regulation. Merriam-Webster's Collegiate Dictionary offers several definitions of the word "protect," but one that appears to be applicable in this inquiry is "to save from contingent financial loss." See Merriam-Webster's Collegiate Dictionary (online). "Contingent" can mean "likely but not certain to happen: possible." Id. Thus, within the context of awarding a TDIU, a protected work environment exists when one's employment is not based on merit alone, but rather is established to save the individual from likely financial loss. In other words, a protected environment is an employment environment that would not exist but for the willingness of the employer to hire and pay the employee for altruistic reasons.

credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

The record shows that the Veteran is service connected for the following disabilities:

Posttraumatic stress disorder (PTSD), rated as 70 percent disabling;

Chron's disease, rated as 30 percent disabling;

Lumbosacral strain, rated as 10 percent disabling;

Chondromalacia patella, right knee, rated as 10 percent disabling;

Migraines, rated as 10 percent disabling;

Tinnitus, associated with hearing loss, rated as 10 percent disabling;

Scar, residual of pilonidal cyst, rated as 0 percent disabling; and

Hearing loss, rated as 0 percent disabling.

The Veteran has two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. Accordingly, the Board finds that the schedular requirements for a TDIU have been met. See 38 C.F.R. § 4.16(a).

Thus, the question for the Board to consider is when, if ever, his service-connected disabilities rendered him incapable of substantial gainful employment. See 38 C.F.R. § 4.16(a).

As to his work history, the Veteran previously worked as a barber. See March 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran's last place of employment was at a salon owned by his cousin. See Mach 2021 Hearing Transcript. The Veteran worked at his cousin's salon from June 2018 to November 2020 and estimated a weekly income of $200. This is reflected in the Veteran's 2019 individual income tax return, showing a total income of $12,000. Comparing the 2019 poverty thresholds for one person under 65, the Veteran's earned annual income was less than the poverty threshold of $13,300. See 2019 Poverty Thresholds (census.gov).

As to his education and training, the Veteran has completed one year of college and received barber training. See March 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.

In support of his claim, the Veteran submitted a March 2021 letter from his cousin and last employer. His cousin provided an employment opportunity for the Veteran to allow him to work in an accommodating environment for his health conditions. They
total income of $12,000. Comparing the 2019 poverty thresholds for one person under 65, the Veteran's earned annual income was less than the poverty threshold of $13,300. See 2019 Poverty Thresholds (census.gov).

In support of his claim, the Veteran submitted a March 2021 letter from his cousin and last employer. His cousin provided an employment opportunity for the Veteran to allow him to work in an accommodating environment for his health conditions. They witnessed the Veteran having to excuse himself, cancel appointments, or abruptly leave based on the unpredictability and severity of his PTSD and Chron's. Despite these efforts and accommodations for the Veteran, the business permanently closed in November 2020. The Veteran has not worked since.

VA examinations also show how the Veteran's service-connected disabilities impacted his ability to work. A May 2021 VA examiner opined that the Veteran's intestinal conditions impacted his ability to work by causing frequent bathroom trips to alleviate diarrhea. The examiner noted that Chron's disease does not limit all forms of work for the Veteran and stated sedentary work would be possible.

A separate May 2021 VA examiner noted the Veteran's primary occupational limitation to be his anxiety related to both his diagnosis of PTSD and his medical condition of Chron's disease. Due to anxiety, the Veteran has difficulty being in crowded settings. If the barbershop became crowded, the Veteran would have to leave. He also found it difficult to be consistently talkative and cheerful in his line of work. In addition, his gastrointestinal flair ups include symptoms of difficult bowel movements, reduced appetite, and fatigue, which have led to excusals and cancellations for appointments. Moreover, the Veteran finds it difficult to trust others. This feeling intensified after two of his barber positions were discontinued in recent years.

As to the Veteran's being able to work performing jobs that require sedentary employment and non-sedentary employment, including his past employment as a barber as well as other possible employment that could make use of his work experience and 1-years of college, the Board finds that the medical records show that the problems caused by his service-connected PTSD, Chron's disease, lumbosacral strain, right knee disability, migraines, tinnitus, hearing loss, and scar adversely impact his ability to work in any field because of the overall impairment they have to his body and mind to include the stamina needed to work a full-day, concentrate on the tasks required by employment, and interact effectively with co-workers and/or customers, and carry out the tasks required by employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office).

The Board also finds that his service-connected connected PTSD, Chron's disease, lumbosacral strain, right knee disability, migraines, tinnitus, hearing loss, and scar would make it very difficult to learn the new skills needed to work in most non-sedentary employments as well as make it dangerous for the Veteran and his co-workers for him to work in most non-sedentary employments. Id. Similarly, the Board finds that that his service connected disabilities would make it very difficult to continue working in most sedentary employments because of the problems it would cause interacting with his co-workers as well as any customers and carry out the duties required by such employment. Id.

Given the above, the Board finds that the Veteran's service-connected disabilities prevent him from securing or following a "substantially gainful" occupation given his prior vocational history, work experience, and the impact his service-connected PTSD, Chron's disease, lumbosacral strain, right knee disability, migraines, tinnitus, hearing loss, and scar have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment as a barber, because of the problems they would cause in any work environment. See Owens, supra.

In reaching the above conclusion the Board has not overlooked his old employment as a barber. However, the Veteran's income did not exceed the poverty threshold for one person. The Veteran was also working in a protected environment at his last place of work. Most notably, the Veteran was even unable to hold employment in his past barber
, and the impact his service-connected PTSD, Chron's disease, lumbosacral strain, right knee disability, migraines, tinnitus, hearing loss, and scar have on obtaining and maintaining substantially gainful non-sedentary employment and sedentary employment, including in his past employment as a barber, because of the problems they would cause in any work environment. See Owens, supra.

In reaching the above conclusion the Board has not overlooked his old employment as a barber. However, the Veteran's income did not exceed the poverty threshold for one person. The Veteran was also working in a protected environment at his last place of work. Most notably, the Veteran was even unable to hold employment in his past barber positions. The accommodations and lenience provided to the Veteran by his cousin allowed him to maintain employment before shutting down in November 2020. However, even after considering his previous accommodations, the Veteran's service-connected disabilities clearly impact his ability to perform the type of activities required by a barber.

Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities render him incapable of substantial gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities had on all employment and the claim for a TDIU is granted. See 38 C.F.R. § 4.16(a); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us.

Neil T. Werner

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Cochran, Laura

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.

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