Citation Nr: 1734616 Decision Date: 08/22/17 Archive Date: 08/30/17 DOCKET NO. 09-15 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION The Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from June 1993 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2007 by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied an increased rating for a service-connected lumbar spine disability. In September 2010, the Veteran testified regarding his lumbar spine disability, and his related vocational impairment, before the undersigned Veterans Law Judge. In April 2011, the Board adjudicated the Veteran's lumbar spine increased rating claim and determined that the issue of entitlement to a TDIU had been raised as part and parcel of the lumbar spine disability increased rating claim on appeal and assumed jurisdiction of this claim per Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the TDIU claim required further development, the Board remanded this claim at this time and again in February 2016 and February 2017. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran has not met the requirements for schedular TDIU consideration. 2. The Veteran has been gainfully employed throughout much of the rating period, and during the portion of the appeal period in which the Veteran was employed marginally, the Veteran's service-connected disabilities have not prevented him from obtaining or maintaining full-time, gainful employment. CONCLUSION OF LAW The criteria for the award of a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and 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. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.16(a). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2015). There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. As the Veteran has been receipt of a combined disability rating of 20 percent from October 2006 (the date of receipt of the Veteran's lumbar spine disability increased rating claim from which his TDIU claim was construed) to April 2012, and 40 percent thereafter, the Veteran is not eligible for the award of a TDIU on a schedular basis at any point during the appeal period, per 38 C.F.R. § 4.16(a). However, the Veteran may nevertheless be awarded a TDIU on an extraschedular basis per 38 C.F.R. § 4.16(b) if the evidence reflects that his service-connected disabilities rendered him unemployable during the appeal period. If the Board finds sufficient evidence to suggest such an effect of the Veteran's service-connected disabilities, the Board must then refer the claim to the VA Director of Compensation Service for an initial administrative determination as to whether the service-connected disabilities did indeed produce unemployability. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that the Board is authorized to award an extraschedular TDIU after obtaining the Director's decision). When last remanding the Veteran's claim, the Board directed the RO to request that the Veteran complete an updated VA Form 21-8940 (formal TDIU application) outlining his work history in detail, due to inconsistencies in the work history reports of record. However, while the RO provided this form in March 2016 to the Veteran and requested that he complete and return it, the Veteran failed to do so. See Olson v. Principi, 3 Vet. App. 480 (1992) (holding that VA's "'duty to assist is not always a one-way street'; nor is it a blind alley," quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)). Notably, VA's Adjudication Procedures Manual requires a substantially complete VA Form 218940 to establish entitlement to at TDIU. See M21-1, IV.ii.2.F.2.b. See also Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Nevertheless, the Board will rely on the evidence that is of record regarding the Veteran's work history in adjudicating the claim. In that regard, the Board finds that the work history outlined in the Veteran's March 2016 VA social work and industrial survey report contains the most comprehensive and detailed account of his work history. During this examination, the Veteran reported that at the time this appeal period began (October 2006), he worked 20 to 30 hours per week as a self-employed mechanic earning approximately $48,000 per year. He reported reducing his hours to 5 to 10 hours per week in 2008 after his back surgery, due to back pain, until sometime in 2010 when he resumed his former 20-30 hour work week. He continued his self-employment until 2012, when he moved to a different state and began working 45-50 hours per week as a mechanic for a logging company, by whom the Veteran was still employed at the time of the March 2016 examination. The Veteran has not made any subsequent reports indicating his unemployment. Based on the above work history, the Board finds that the Veteran was gainfully employed throughout the rating period, except for the period spanning from April 2008 (when records indicate the Veteran underwent back surgery) to 2010, during which time he reports he reduced his workload to 5-10 hours per week due to back pain. The Board finds that the period prior to April 2008 when the Veteran reports he earned approximately $48,000 per year while working 20-30 hours per week constitutes gainful employment, given not only the amount of time worked per week, but also based on the annual salary that employment produced. Moreover, the Veteran's current 45-50 hour per week job, earning $17.00 per hour, as a mechanic employed by a logging company is also deemed to be gainful employment, for the same reasons set forth above. However, the Board will assume, for the purposes of this analysis, that the Veteran's reduced work schedule from April 2008 to 2010 was marginal employment, as contemplated by 38 C.F.R. § 4.16, based on the infrequency of work and the presumed related salary decrease. However, medical evidence of record from this time period in which the Veteran was marginally employed fails to reflect that the Veteran's two service-connected disabilities, his low back disability (evaluated as 20 percent disabling during this period) and his right knee disability (evaluated as noncompensably disabling during this period), were sufficiently disabling to preclude gainful employment. In that regard, the Veteran's treatment during this time period reflects the Veteran's report of some bilateral knee pain, with his left (then nonservice-connected) knee disability worse than his right (service-connected) knee disability. However, clinical and radiological examinations of the Veteran's right knee evidenced no abnormalities. With regard to the Veteran's service-connected back disability, in March 2008 (shortly before the Veteran's back surgery), the Social Security Administration (SSA) denied the Veteran's appeal seeking disability benefits, concluding that while the Veteran's sole noted disability of a lumbar degenerative disc disease produced symptoms and a related impairment, his back disability did not preclude the Veteran's gainful employment. Further, clinical assessments of the Veteran's low back disability during this period include a March 2009 VA examination report noting the Veteran to have 130 degrees of combined thoracolumbar flexion and no radicular symptoms, and a June 2010 VA examination report noting that the Veteran demonstrated 220 degrees of combined thoracolumbar flexion and no radicular symptoms. Thus, the Board finds that these clinical findings are commensurate with the SSA's determination that the Veteran's lower back, while symptomatic, was not so severe as to preclude gainful employment. In sum, the record reflects that the Veteran is not schedularly eligible for TDIU consideration, and a referral for extraschedular consideration is not warranted, as the Veteran has been gainfully employed during the majority of the appeal period, except for the period from 2008 to 2010 when he was marginally employed but not precluded from gainful employment due to his service-connected disabilities. Thus, the preponderance of evidence is against the Veteran's claim seeking a TDIU; there is no benefit of the doubt to be resolved in the Veteran's favor, and a TDIU is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER A TDIU is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs