Citation Nr: 18142651 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 10-29 212 DATE: October 16, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT The Veteran has been employed on a full-time basis during the appeal and is not shown to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1977 to September 1981, March 1984 to March 1987, and from March 1990 to May 1992. He also had active duty for training (ACDUTRA) in the Reserves from July 2006 to August 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board and remanded in March 2017 for further development, to specifically include obtaining an opinion addressing the impact of the Veteran’s service-connected disabilities on his ability to engage in substantially gainful employment consistent with his education and experience. The remand also requested the examiner(s) to describe the types of employment that would be precluded and those that would remain feasible despite the disabilities. Fee-based VA opinions were obtained in July 2017, but the opinions do not include descriptions of the types of employment that would be precluded and the types that would be feasible. Although there was not compliance with this specific remand instruction, in light of Moore v. Shinseki, the opinions obtained are sufficient to render a decision in this matter. 555 F.3d 1369, 1373 (Fed. Cir. 2009); see also Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (the ultimate responsibility for a determination on the question of whether TDIU is warranted rests with the adjudicator and not with a medical examiner. There has been substantial compliance with the remand directives and further remand would serve no useful purpose in this case as the Veteran has been engaged in substantially gainful employment throughout the appeal. Stegall v. West, 11 Vet. App. 268 (1998); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board also remanded claims of service connection for bilateral upper extremity numbness, bilateral lower extremity numbness, and nerve damage of the neck. The RO granted these claims in an October 2017 rating decision. As this award represented a full grant of the benefits sought on appeal, these service connections claims are no longer before the Board. 1. Entitlement to a TDIU. In the March 2017 remand, the Board found that the issue of entitlement to TDIU was reasonably raised by the record because the Veteran reported in his substantive appeal that all of his conditions on appeal were caused by his service-connected back and neck disabilities, and led him to retire early. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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, 529 (1993); see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. “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). As further provided by 38 C.F.R. § 4.16(a), “marginal employment shall not be considered substantially gainful employment.” For purposes of TDIU, 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, Bureau of the Census. Marginal employment may also be held to exist, on a facts-found basis including, but not limited to, employment in a protected environment such as a family business or sheltered workshop-when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one service-connected disability, this disability shall be ratable at 60 percent or more; 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. Id. The Board notes that the Veteran meets the schedular requirements for a TDIU. The Veteran is service-connected for: (1) tension headaches rated at 30 percent from June 23, 2008 and 50 percent from July 23, 2010; (2) peripheral neuropathy of the right upper extremity rated at 40 percent from June 23, 2008; (3) peripheral neuropathy of the left upper extremity rated at 30 percent from June 23, 2008; (4) unspecified depressive disorder rated at 30 percent from August 3, 2010; (5) osteoarthritis with degenerative disc disease of the cervical spine with surgical scar rated at 10 percent from June 23, 2008, 100 percent from March 29, 2010; 10 percent from June 1, 2010; and 20 percent from July 3, 2017; (6) chronic lumbar strain rated at 10 percent from June 23, 2008; (7) peripheral neuropathy of the left lower extremity rated at 10 percent from June 23, 2008; (8) peripheral neuropathy of the right lower extremity rated at 10 percent from June 23, 2008; (9) tinnitus rated at 10 percent from January 27, 2011; residuals of traumatic brain injury (TBI) rated at 10 percent from August 3, 2010; and (10) bilateral hearing loss rated 0 percent from January 27, 2011. The Veteran’s combined evaluation is 90 percent from June 23, 2008; 100 percent from March 29, 2010; 90 percent from June 1, 2010; and 100 percent from January 27, 2011. The Board is mindful that from March 29, 2010 to June 1, 2010 and from January 27, 2011, the Veteran has a total rating. For the period from March 29, 2010 to June 1, 2010, the issue of entitlement to TDIU is rendered moot because the Veteran was already in receipt of special monthly compensation (SMC) based on housebound status. However, from January 27, 2011, the issue of TDIU is not rendered moot because of the possibility of assignment of SMC based on housebound status. See Bradley v Peake, 22 Vet. App. 280 (2008). Based on the evidence, the Board finds that the Veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. At the outset, the Board notes that the RO, by letter dated October 2017, asked the Veteran to report his employment history during the appeal period. A VA Form 21-8940 was enclosed with the October 2017 letter. However, the Veteran did not complete the VA Form 21-8940 as requested or otherwise provide the requested information. While failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to the Veteran’s employment history, educational history and training, and income information necessary to address a claim for TDIU. “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.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, the Board finds that the record contains generally sufficient evidence to assess the Veteran’s employment status for the period on appeal. A July 2010 letter from St. Francis Medical Center confirmed that the Veteran was employed at the hospital. The letter also reported that the Veteran’s job required lifting and moving equipment and that he had been unable to do any lifting or moving for some time. During a January 2011 fee-based VA examination for his ears, the Veteran reported that he had been employed with St. Francis Medical Center for the past five years. Additionally, during an April 2017 fee-based VA examination for his TBI, the Veteran reported that he possessed a bachelor of science degree and is presently employed at St. Francis Medical Center in the maintenance engineering department working 7 a.m. to 3 p.m. Moreover, in a fee-based VA examination for the Veteran’s unspecified depressive disorder in July 2017, the Veteran reported that he works full time at St. Francis Medical Center and is able to do his job because of the support and understanding from his fellow workers. In a July 2017 fee-based VA opinion, the examiner opined that while the Veteran has bilateral hearing loss, he is able to sustain most types of employment consistent with his education and experience, though he may require hearing aids and/or assistive listening devices while employed. In a July 2017 fee-based VA examination for the Veteran’s peripheral neuropathy, the examiner opined that the impact of the peripheral neuropathy on the Veteran’s ability to work is partial impairment of physical activities of employment such as running, jumping, climbing, exercise, heavy lifting, pulling, and carrying. The same impact was reported during the Veteran’s July 2017 fee-based VA examination for his back condition. Additionally, in another July 2017 fee-based VA opinion, the examiner opined that the Veteran’s service-connected cervical and lumbar spine conditions and TBI with tension headaches and tremors do not render him unemployable, and he is able to obtain and maintain substantially gainful employment. Based upon the above, the Board finds that the Veteran’s service-connected disabilities do not preclude him from securing and following substantial gainful employment. The record clearly shows that the Veteran has been working as a maintenance engineer for the same employer during the entire appeal period. While the examiners noted that the Veteran’s service-connected disabilities cause some functional impairment, they did not indicate total impairment. Additionally, while the Veteran’s employer has reported that the Veteran’s service-connected disabilities make it difficult for him to perform certain responsibilities of his job such as lifting and moving equipment, the evidence does not show that they have made him unable to work. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unemployable due to his service-connected disabilities. The Board notes that the Veteran’s current disability ratings take into account any limitations and difficulties he has while working and he continues to work on a full-time basis. In sum, the evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities. Further, to the extent that it may be argued that the Veteran is engaged in sheltered or protected employment because (1) the Veteran reported that he is able to do his job due to the support and understanding of his fellow workers, and (2) the Veteran is employed despite the fact that his employer reported he is unable to do certain responsibilities of his job, the evidence presented does not support such a finding. The Veteran’s failure to complete the VA Form 21-8940 leaves the Board without the ability to request information from his employer, and he has not otherwise provided his income or any other information that would support a finding of marginal employment in this case. Further, there is no evidence showing St. Francis Medical Center is the type of occupational environment envisioned by the regulations, such as a family business or sheltered workshop. No evidence has been presented to show the Veteran’s employer made any special or extraordinary accommodations to allow him to perform his job successfully and on a full-time basis. Thus, the Board must find that the Veteran has been engaged in substantially gainful employment based on the evidence of record. (Continued on the next page)   As the Veteran has been gainfully employed on a full-time basis during the entire appeal, there is no basis for granting TDIU. As the preponderance of the evidence is against the claim for TDIU, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel