Citation Nr: 1807694 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-17 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD S. A. Abarr, Associate Counsel INTRODUCTION The Veteran had active service from September 1970 to February 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This matter was previously before the Board in October 2015, when it was remanded for further development. The issue has now been returned to the Board for appellate consideration. The record also reflects that the Veteran was previously represented by a private attorney who submitted a motion to withdrew from representation in May 2017. In September 2017, the Board granted the motion. The Veteran has not appointed another representative since that time and stands unrepresented. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for an award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA's duty to notify was satisfied by letters dated in June 2016, September 2016, and October 2016. The June 2016 letter was returned as undeliverable, but resent upon receipt of a corrected address from the Veteran. These letters set forth what the evidence must show to support a TDIU claim. They also included a request for a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, with a blank form provided. To date, the Veteran has not completed and returned this form to VA. Further, no notice deficiency has been alleged. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA's duty to notify is met. In a May 2014 appeal to the Board, the Veteran's former private attorney raised the issue of a failure to fulfill the duty to assist with respect to VA medical center (VAMC) records that had not been obtained and added to the claim file. After the Board's October 2015 remand, VAMC treatment records spanning the period from 2009 to 2016 were secured and added to the Veteran's claim file. The Board finds that the record as it now stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. The Board further finds that there has been substantial compliance with the instructions in the Board's October 2015 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Total Disability Based Upon Individual Employability The Veteran contends that he is unemployable due to his service-connected disabilities. In order to establish entitlement to a TDIU, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, 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. 38 C.F.R. § 4.16(a). The Veteran is currently service-connected for multiple disabilities as follows: prostate cancer, rated as 20 percent disabling; and erectile dysfunction, with a noncompensable rating. He also receives special monthly compensation (SMC) on account of loss of use of a creative organ. From the period from February 19, 2010 to January 31, 2013, he was rated as 100 percent disabled due to his prostate cancer. Effective February 1, 2013, that rating was reduced to 20 percent due to an improvement in his condition. Thus, his combined disability rating is 20 percent. Where two or more disabilities are service-connected, as in the instant case, at least one disability must be rated at 40 percent or more, and the combined rating must be at least 70 percent. Here, the Veteran's highest rated service-connected disability is 20 percent, and his combined rating is also 20 percent. Hence, the threshold criteria for a schedular rating have not been met, and a TDIU is not warranted under § 4.16(a). Even when the percentage requirements under 38 C.F.R. § 4.16(a) are not satisfied, a total disability evaluation may still be assigned on an extraschedular basis. Indeed, it is the established policy of VA 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. 38 C.F.R. § 4.16(b). Therefore, exceptional cases may be submitted to the Director of Compensation and Pension Service for extraschedular consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). The Veteran asserts that he is entitled to a TDIU based on his service-connected disabilities. There is no suggestion either by lay or medical evidence, that the Veteran's service-connected prostate cancer, in remission, and erectile dysfunction preclude substantially gainful employment. The evidence shows that he retired in January 2012 from his usual occupation as a commercial fisherman, but contains no mention of retirement due to his service-connected disabilities. The Veteran's February 2012 VA examiner concluded that he "would be able to perform his occupation as a commercial fisherman despite his genitourinary condition; however, he would have to make frequent visits to the bathroom for urination due to his genitourinary condition." He added, "[p]atient's activities of daily living are not affected by his genitourinary condition." At his November 2013 VA examination, the examiner stated that the Veteran's prostate cancer does not impact his ability to work. The Veteran has not submitted any medical opinion evidence to rebut the February 2012 and November 2013 VA examination and employability findings. Moreover, there is no other competent evidence of record that contradicts the VA examiners' determinations, which are predicated on a clinical examination of the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Because the previous VA examinations have yielded findings relevant to his TDIU claim, an additional VA examination is not necessary for the Board to make a determination on the issue of entitlement to a TDIU. Accordingly, the Board finds that the functional limitations imposed by the Veteran's service-connected disabilities do not preclude his performance of substantially gainful employment. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit has held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board further notes that in the November 2016 Supplemental Statement of the Case, the RO stated, "On August 3, 2016, September 21, 2016 and October 24, 2016, we wrote and asked you to send us a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. As of this date, we have not received a complete VA Form 21-8940. This form is required to further consider your claim." The claim file still does not contain this completed form. Thus, the Veteran's failure to submit VA Form 21-8940 has also precluded potentially favorable evidence, to include a history of his work experiences, education, and training. See Wood v. Derwinski, 1 Vet. App 190, 193 (1991) (noting that the duty to assist is not a one-way street). For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria, including 38 C.F.R. § 4.16(b) referral, for TDIU have not been met. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a TDIU due to service-connected disabilities is denied. ____________________________________________ E.I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs