Citation Nr: 18144895 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 12-16 165 DATE: October 25, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), on the basis of substitution, is denied. FINDING OF FACT The evidence fails to establish that the Veteran was precluded from engaging in substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from March 1968 to January 1972. He died in April 2014. The appellant is his surviving spouse. This matter is on appeal to the Board of Veterans’ Appeals (Board) from an April 2011 rating decision of a regional office of the Department of Veterans Affairs (VA). In April 2016, the appellant testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This case was most recently before the Board in September 2017 where the claim was remanded for further development as the RO did not determine whether referral for consideration under 38 C.F.R. § 4.16(b) was necessary. Duties to Notify and Assist Pursuant to the Board’s September 2017 remand directives, notifications were sent in February 2018 and April 2018 requesting that the appellant complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Individual Unemployability). The record reflects that letters were also previously sent in February 2013 and April 2016. To date, neither the appellant nor her representative has submitted the requested evidence and information. The record does not indicate any correspondence was returned undelivered. Further, in compliance with the Board’s remand, in March 2018, VA obtained medical opinions to assess the impact of the Veteran’s service-connected disabilities on his ability to secure and maintain employment from August 2010 through the date of his death. Accordingly, there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he or she still may receive a TDIU on an extraschedular basis if it is determined that he or she is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). TDIU As will be explained below, the Board finds that the competent evidence of record does not show that the Veteran was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities, and referral of the TDIU issue for extraschedular consideration is, therefore, not warranted. At the outset, the Board notes that VA’s duty to assist has been frustrated in this case by the appellant’s failure to participate in the development of the Veteran’s TDIU claim. Meaning, if the appellant believes entitlement to a TDIU, on a substitution basis, is warranted, she must at least fulfill her minimal obligation of submitting employment information critical to the resolution of the claim. As noted above, to date, the appellant has not submitted a VA Form 21-8940 or any comparable statement containing the requested employment information. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him or her from securing or following a substantially gainful occupation, and the treatment he or she has received for the disability(ies). The veteran is further asked to supply information about employment, including dates when the disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. The VA Form 21-8940 also requests information regarding the veteran’s employment, educational and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether the veteran attempted to obtain employment since he became too disabled to work. The information provided by a veteran on a VA Form 21-8940 can be used by the RO to submit requests for previous employers to complete a VA Form 21-4192. As such, this information is essential to the resolution of the Veteran’s TDIU claim. The critical facts at this stage are clear. The appellant has not provided the information or VA forms necessary for VA to adjudicate the Veteran’s claim of entitlement to a TDIU, and particularly since the September 2017 Board remand. Thus, the Board is presented with a less-than-complete evidentiary picture, made so by the appellant’s failure to cooperate. With that said, however, for purposes of this decision, the Board observes there is sufficient competent lay and medical evidence of record to proceed without prejudice to the appellant. Initially, the Board finds that the Veteran did not meet the schedular criteria for TDIU. At the time of his death, the Veteran was service-connected for ischemic heart disease rated at 30 percent disabling from April 1, 2013; posttraumatic stress disorder rated at 10 percent from January 11, 2013; erectile dysfunction, rated at 0 percent; and with a combined evaluation for compensation of 40 percent from April 1, 2013. Indeed, the period from December 17, 2012 to March 31, 2013, the period when the Veteran was assigned a total 100 percent schedular rating is excluded. Therefore, the Veteran does not have either a single disability rating of 60 percent or a combined rating of at least 70 percent with at least one disability rated at 40 percent so as to meet the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a). As the Veteran does not meet the applicable percentage standards, the Board must consider whether the Veteran would have nevertheless been unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. See 38 C.F.R. § 4.16(b). To specifically address this question, the Board remanded the matter in September 2017 to obtain medical opinions from VA medical professionals to assess the impact of the Veteran’s service-connected disabilities on his ability to secure and maintain employment from August 2010 through the date of his death, given his education and occupational experience. According to the appellant, the Veteran’s previous work experience was operating a small packaging business, and working as a self-employed home inspector. He had two Associate Degrees in Business and Electronics. See April 2016 Hearing Transcript, pp. 22-24. The record reflects a March 2018 medical opinion from a VA physician addressing the Veteran’s service-connected ischemic heart disease and erectile dysfunction. Based on a thorough review of the claims file and Veteran’s medical history, the VA physician found that the Veteran’s medical records “suggested his coronary artery disease was felt to be stable prior to his demise and indicates he was employed as a building home inspector up and until his demise in April 2014.” The physician indicated that there is no evidence to indicate that the Veteran was not employable secondary to his service-connected ischemic heart disease or erectile dysfunction, and further explained that the Veteran’s employment as a small business owner/building inspector appeared consistent with his education background in business. See VA Medical Opinion Disability Benefits Questionnaire (DBQ) dated March 2018. The record also reflects a similar opinion of March 2018 rendered by a VA psychologist concluding that the Veteran’s service-connected PTSD did not negatively impact his ability to secure and follow substantially gainful employment, for which his education and occupational experience would have otherwise qualified him, at any time from August 2010 through the date of his death. See Addendum/ Clarification DBQ dated March 2018. A review of the evidence of record, taken in total, does not suggest that the Veteran was unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities. The Board emphasizes the persuasive VA medical opinions that weigh against the Veteran’s claim and are found to have great probative value. The medical professionals who thoroughly reviewed the claims file consistently opined that the Veteran’s service-connected disabilities did not appear to be of such severity to render him unable to obtain or maintain substantially gainful employment. In fact, the examiners indicated that the Veteran’s employment as a small business owner/building inspector, up until the time of his death, was consistent with his education background in business. The evidence simply does not establish that the Veteran’s service-connected disabilities alone resulted in unemployability. As such, TDIU is not warranted in this case. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Lastly, the Board acknowledges that the appellant is competent and credible to report observable symptoms of the Veteran’s disabilities and how it affected his employability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). However, as a lay person she is not competent to identify a specific level of disability according to the appropriate diagnostic code or to assess whether the symptoms preclude employment. Such competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities, and in particular his ability to work, has been provided by VA medical professionals. As such, the Board finds the appellant’s lay statements not competent medical evidence for this purpose. Thus, her assertions standing alone have little probative value and the Board assigns more weight to the medical opinions provided by VA examiners. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran was rendered unemployable due to his service-connected disabilities. (CONTINUED ON NEXT PAGE) As the Veteran does not meet the applicable percentage standards, the Board finds that referral of the TDIU issue for extraschedular consideration is not warranted and the claim must be denied. See 38 C.F.R. § 4.16(b). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel