Citation Nr: 1753477 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 11-12 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. E. Griffith, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to May 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, February 2016, and February 2017, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to request all Social Security Administration (SSA) records, not only medical ones. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board notes that it has a duty to assist the Veteran in obtaining relevant SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The VA attempted to obtain SSA records multiple times. In a November 2014 letter to the Veteran, the VA asked him to submit any available copies of SSA records and any other relevant evidence or information to support his claim. SSA records note that the Veteran applied for disability benefits, but no medical records were obtained by SSA. There is no evidence that any SSA records are relevant to the claim. Thus, the Board finds that there is no reasonable possibility that any SSA records are relevant to the Veteran's claim and VA has substantially complied with remand directives. Golz, 590 F.3d at 1317; Stegall, 11 Vet. App. 268 at 271. FINDING OF FACT The Veteran's service-connected disabilities do not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with respect to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As previously noted, the Board remanded this case in February 2017 to obtain SSA records. An April 2017 request for records from the VA to SSA asked for not only medical records, but also all other SSA records, including but not limited to copies of the Veterans application to the SSA and SSA decision. SSA responded in April 2017 with a check box form, indicating there are no medical records and further efforts to obtain them would be futile. Accordingly, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). Analysis A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, the Veteran's non-service-connected disabilities and his advancing age are not for consideration. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task is to determine whether there are circumstances apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this Veteran in a different position than other veterans. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). 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, 529 (1993). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b) (West 2014). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted in the February 2016 Board remand, the Veteran's combined rating is 70 percent, effective December 22, 2009. Therefore, he meets the schedular criteria (with 1 disability also rated individually at 40 percent) under § 4.16(a). The criteria for compensation based on TDIU have not been met. See 38 C.F.R. § 4.16. With respect to education, training, and work experience, the Veteran reported he had a high school education, no other education and training, and worked at Trane Company from 1970 until 2010. The Veteran drove a forklift when he stopped working, but had previously worked on the assembly line. The Veteran reported he retired because he was unable to perform job requirements. On his application for TDIU, the Veteran reported he was specifically unable to work due to his service-connected diabetes. In regard to lay statements in support of TDIU, the Veteran reported on his May 2011 substantive appeal that he was unable to walk without swelling and pain in his ankles. In August 2016, the Veteran's wife reported that the Veteran was sleepwalking, unable to control his bladder, and retired because he was unable to stay awake, as well as having constant pain. Several VA examiners provided opinions as to the Veteran's service-connected disabilities' functional impact on his ability to work. In May 2016, a VA examiner considered the functional effects of all of the Veteran's service-connected disabilities on his ability to obtain and maintain gainful employment. The examiner opined that the Veteran's prostate cancer, scars, ankle disabilities and peripheral neuropathy caused no impact on the Veteran's ability to work. The examiner considered the Veteran's heart conditions, including coronary artery disease, and opined that resulting work limitations may include avoidance of prolonged exertion, heavy lifting or carrying; the Veteran may need to be accommodated to attend medical appointments or procedures. With respect to the Veteran's diabetes, the examiner opined that the Veteran would need frequent breaks and a private place with hand-washing facilities and disposal for glucose testing strips; furthermore, there would be limitations on continuous physical exertion, working in extreme temperature or moist areas, working at unprotected heights, and working in isolated areas alone. Overall, the examiner opined that the Veteran's service-connected disabilities would affect some types of employment, but that the Veteran could obtain gainful employment in a sedentary or light duty occupation with minimal workplace accommodation. The May 2016 VA examiner's opinion has significant probative value. The Board places much weight on these clinical evaluations as the examiner considered all of the Veteran's service-connected disabilities and occupational effects and was consistent with previous examinations. As noted, consistent with the May 2016 examiner, in February 2010, a VA examiner opined that the Veteran's medical problems would not have any significant effect on his ability to continue his work as a forklift driver for Trane. Objective imaging at the February 2010 examination reflected normal appearance of the ankle and small metallic fragments. In February 2010 another VA examiner, a radiologist, opined that the Veteran would be able to work considering service-connected shrapnel wounds to the right and left ankle, and that the wounds had no residual effects. In reaching this decision, the Board acknowledges the lay statements from the Veteran and his wife submitted into the record which indicate sleepwalking, bladder control issues, and pain, specifically in the Veteran's ankles. However, the Board finds that these relevant pieces of evidence are outweighed by the 2010 and 2016 VA examination reports. Indeed, the Board places less weight on the lay statements because they do not specifically suggest restrictions placed on the Veteran's ability to work in a sedentary or light duty occupation with minimal accommodation. These symptoms would not preclude sedentary or light employment with access to a bathroom. Additionally, the Veteran's wife's statement did not address the Veteran's functional occupational effects or relation between his service-connected disabilities and unemployability. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against entitlement to TDIU. 38 U.S.C.A. § 5107(b). ORDER TDIU is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs