Citation Nr: 1806775 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-20 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the appeal has since been assumed by the RO in Winston-Salem, North Carolina. In April 2017, the Board remanded the appeal to the RO for additional development. The matter has been returned to the Board for further appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Service connection is in effect for left ankle and foot fracture with arthritis, currently rated as 30 percent disabling, facial scars, currently rated as 0 percent disabling, tinnitus, currently rated as 10 percent disabling and bilateral hearing loss currently rated as 10 percent disabling. The service connected disabilities currently combine to be 40 percent disabling. 2. The Veteran's service connected disabilities do not prevent him from securing and following a substantially gainful occupation with consideration of all factors bearing on the issue, to include his employment history, educational and vocational attainment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.344, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with 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). Applicable Laws and Regulations When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is "that 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 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his service connected disabilities but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). Facts and Analysis The Veteran contends that his left foot and ankle conditions render him unable to work and caused him to retire from his job as a maintenance worker in 2010. Service connection is in effect for left ankle and foot fracture with arthritis, currently rated as 30 percent disabling, facial scars, currently rated as 0 percent disabling, tinnitus, currently rated as 10 percent disabling and bilateral hearing loss currently rated as 10 percent disabling. The service connected disabilities combine to be 40 percent disabling; as such, the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a) is not met. Nevertheless, it is VA's established policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation, for extra-schedular consideration of a TDIU. 38 C.F.R. § 4.16(b). For the reasons discussed below, the Board finds that referral is not warranted, as the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities alone. In support of his claim, the Veteran has submitted buddy statements from former co-workers. In a buddy statement dated in December 2009, D.L. writes that the Veteran seems to have trouble walking and performing normal work duties due to his pain. In another buddy statement dated in December 2009, L.J., wrote, "His condition severely impacts his work performance." See December 2009 Buddy Statement from L.J. L.J. describes some occupational duties such as going up and down stairs, moving heavy equipment, retrieving trash from uneven terrain, and being on ladders and step stools. L.J. reported that "when going from a lying position to standing and vice versa, [the Veteran] has to do it with one leg." Id. This issue was noticeable as the Veteran was required to routinely work under sinks and to check behind refrigerators for leaks. L.J. also reported observing the Veteran in pain. The Veteran's left foot and ankle were examined by VA in February 2016. For each disability, the examiner was asked whether the condition impacted the Veteran's ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.), and the examiner answered "no," respectively. The VA examiner opined that the Veteran "should have no difficulty performing sedentary occupation because he has completed high school and also has two years of college education." See February C&P Examination at page 3. Although the examiner noted that the Veteran will have difficulty performing physical labor and employment that requires physical or manual labor, his inability to lift heavy weight objects from a lower level and difficulty with prolonged bending was specifically attributed to a nonservice-connected back condition, and his difficulty with prolonged standing and crouching was attributed to his nonservice-connected left hip and left knee condition. A February 2012 VA audiology examination noted that the Veteran reported that his hearing loss made hearing in background noise impossible, and that his tinnitus made it hard to concentrate. The Veteran has not asserted his scars impact his ability to work. To afford the Veteran the opportunity to more fully explain the nature of his prior work experience, as well to obtain more information regarding the impact of his disabilities on his retirement, his extent of formal schooling, and specialized skill training, the Board remanded the Veteran's TDIU claim in April 2017 so that the Veteran could fill out an updated VA Form 21-8940. In June 2017, VA mailed out a notice letter which included the VA Form 21-8940. The Veteran, to date, has not responded. The decision about employability is one made by the finder of fact. In this inquiry however, the Board may only consider the impact of the Veteran's service connected left foot and ankle condition (as these are the conditions the Veteran specifies are the cause of this unemployability), on his ability to secure and follow gainful employment. Although the Veteran's buddy statements indicate that the Veteran struggled physically at times while on the job, they do not clarify how, exactly, the Veteran was prevented from carrying out his occupational duties. Upon examination, his foot and ankle disabilities were not shown to cause impairment in his ability to work. Although his hearing loss and tinnitus disabilities inhibit his ability to concentrate and hear when there is background noise, there is no indication that these disabilities would prevent him from working in a sedentary environment. The February 2016 VA examiner who assessed the Veteran specifically concluded that the Veteran would not be precluded from sedentary work. The Veteran has a high school education, with two years of college education. Although he worked maintenance in an apartment from 2004 to 2010, prior to that he was a cook, a truck driver, and an inspector. During service he served as a personnel clerk. See the Veteran's DD-214. The Board finds that such experience and training would not limit the Veteran to only having to work manual labor jobs. Notably, when provided an opportunity to clarify or update his employment history, the Veteran failed to return documentation that would have afforded the Board more information that could be used to determine whether his prior employment met the standard of substantially gainful, and to understand the extent to which he still may be working, or cannot work due to his service-connected duties. The duty to assist the Veteran in the development of evidence pertinent to his claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, when considering the physical examination reports of the February 2012 and February 2016 VA examiners and the Veteran's level of education and experience, the Board finds that the weight of the evidence is against the conclusion that the Veteran's service connected conditions, in and of themselves, have rendered him unable to secure or follow gainful employment. As such, referral of this case for extraschedular consideration is not warranted. In short, the Board finds that the preponderance of the evidence is against the claim for TDIU; therefore, entitlement to TDIU must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 49. (CONTINUED ON NEXT PAGE) ORDER Entitlement to TDIU is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs