Citation Nr: 18148172 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 16-27 349 DATE: November 7, 2018 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The service-connected disabilities do not render the Veteran unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1979 to December 1993 in the United States Army. His awards and decorations include the Combat Medical Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). TDIU VA will grant disability compensation based upon individual unemployability (TDIU) when the evidence shows that the Veteran is precluded, by reason of his service connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. The Veteran’s service connected disabilities include posttraumatic stress disorder (PTSD) with depressive disorder and alcohol dependence (70 percent disabling), and chronic obstructive pulmonary disease (COPD) (60 percent disabling). He has been in receipt of a combined disability higher than 70 percent since August 8, 2013 (throughout the entire appeal period), with at least one disability rated at 40 percent or higher. Thus, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) have been met for the entire appeal period. Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage.”) Moore v. Derwinski, 1 Vet. App. 356 (1991). In November 2014 and again in August 2016, the RO asked the Veteran to complete a form entitled, “Veterans Application for Increased Compensation Based on Unemployability” (VA Form 21-8940). A substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. The form concludes with a series of sworn certification statements, and in endorsing it, a Veteran both attests to his/her employment status, and signals understanding of the TDIU benefit's incompatibility with substantially gainful work. A completed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran's entitlement to TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. Despite VA's repeated requests for the Veteran to complete VA Form 21-8940, and VA’s despite VA’s explanation of the significance of the form, the Veteran has not complied. He is represented by an attorney and his failure to complete and submit this form is without explanation. Turning to the evidence of record, on VA psychological examination in December 2010, prior to the current claim, the Veteran was noted to still be working for the United States Postal Service. The examiner noted that the PTSD symptoms caused clinically significant impairment in functioning both socially and at work. The Veteran was assigned a Global Assessment of Functioning (GAF) score of 45, indicating serious symptoms. See Diagnostic and Statistical Manual of Mental Disorders (4th Ed.) (DSM-IV) at 44-47. On VA examination in July 2014 for his COPD, the VA examiner concluded that COPD did not impact his ability to work. Instead, the Veteran had not worked since having a heart attack and was on medical leave. In December 2014, the Veteran was awarded disability benefits from the Social Security Administration, effective July 25, 2014, based on cardiomyopathy as the “primary” medically determinable impairment. An anxiety disorder was a “secondary” impairment, and COPD, obesity, and affective disorders were “other” impairments. In October 2015, a treating VA physician noted he stopped working at the postal office in 2013 when he had a heart attack. In November 2015, his VA pulmonologist stated he was retired due to coronary artery disease. In January 2017, the Veteran underwent a psychological evaluation with Dr. H.-G. She reviewed the claims file and examined the Veteran. She completed a Disability Benefits Questionnaire (DBQ) in which she determined the Veteran did not have total occupational or social impairment, but opined he could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to PTSD. She stated that his “troubling PTSD symptoms are preventing him from maintaining substantially gainful employment.” She provided and discussed medical literature in support of her conclusions. In February 2017, the Veteran underwent a vocational evaluation by Dr. B. She reviewed the claims file and provided a report. Her discussion was focused on the evidence above and medical literature. She stated that the Veteran has a “combination of physical and emotional conditions which interact in terms of severity level.” She summarized the psychological findings of record, as well as the July 2014 examiner’s findings that he had not worked after having a heart attack. She concluded the Veteran is totally and permanently precluded from substantially gainful work because of his PTSD and COPD. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The record, including findings of the July 2014 VA examiner, October 2015 VA physician, and November 2015 VA physician, indicate the Veteran is unemployed because of his non-service connected heart condition. Further, the SSA determined he was entitled to disability benefits due primarily to his non-service connected cardiomyopathy. The July 2014 VA examiner specifically found that his service-connected COPD did not impact employment. As for the remaining evidence, the December 2010 VA examiner found the PTSD symptoms caused significant interference at work, but did not find he was unable to maintain substantially gainful employment due to PTSD; moreover, he was still working at the time. The opinion of Dr. H.-G. is not persuasive to the extent her findings are unclear and inconsistent. See Madden v. Gober, 125 F.3d 1477, 1481 (Fec. Cir. 1997) (holding the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). In the DBQ, she found he was not totally occupationally impaired, but did not explain this or indicate what types of employment were possible. In the narrative, she found that PTSD prevented him from maintaining all substantially gainful employment. Similarly, the report of Dr. B. is not persuasive to the extent she determined his COPD precluded substantially gainful work, without any supportive rationale. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding medical opinions have no probative value when they are based on an inaccurate factual predicate). To the contrary, the only evidence on this point is the July 2014 VA examiner’s finding that COPD did not impact work. Dr. B.’s conclusion also appears predicated, in part, on the non-service connected heart condition as she recited the July 2014 examiner’s findings in her conclusion, and noted he has “extremely limiting” physical limitations. Considering only the service-connected disabilities, the file indicates the Veteran is capable of physical labor as COPD does not impact employment. The Board finds he is capable of non-physical labor as well. Based on the information available regarding his educational background, found in the December 2010 VA examination report, he has completed some college, completed training to be a medic, and nearly has enough hours to proceed into physician’s assistant school. This level of education and medical training support a finding that he could perform non-physical employment, such as in an isolated environment in medical records or coding, for example, with limited interaction with others. See Withers v. Wilkie, __ Vet. App. __, No. 16-1543 (August 10, 2018). The only other evidence to the contrary is the lay evidence. He does not, however, have the technical expertise to discuss how each of his service-connected disabilities result in occupational impairment. While he is certainly free to discuss his personal experience, the competent medical evidence above is persuasive in so much as the medical professional have expertise in determining how the Veteran’s symptoms result in occupational impairment. Finally, the record also lacks a completed VA Form 21-8940. The Board has reviewed the record but cannot otherwise point to the information this form would provide, including, for example, his maximum past salary and when it was earned, his attempts to obtain employment since becoming disabled, his exact educational history, and whether he attempted any training before or after becoming disabled. As he has not completed this form, VA's efforts have been frustrated in developing the claim. VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193(1991). 38 C.F.R. § 3.151 Claims for disability benefits. (a)General. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. (Continued on the next page)   The above evidence reflects that the weight of the evidence is against a TDIU as it indicates that the Veteran's service- connected disabilities do not produce unemployability. Rather, the disability ratings assigned for his service-connected disabilities is recognition of the occupational impairment they cause. On this record, the Board finds that no basis exists to award a TDIU. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel