Citation Nr: 1815232 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 10-06 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total disability evaluation based on individual employability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1974 to October 1986. This matter came before the Board of Veterans Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In December 2014, the Board remanded this matter for further evidentiary development. In May 2016, the Board found that the issue of entitlement to TDIU had been raised by the record in the increased rating claim on appeal and remanded the issue of entitlement to TDIU for further development. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). FINDING OF FACT The evidence of record indicates that the Veteran is not unemployable due to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's issues on appeal, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. On November 1, 2017, the RO sent the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unavailability, to verify his current work status. The letter accompanying the form advised the Veteran that if he did not provide the required information within 30 days a decision would be made based upon the evidence of record. There is no indication in the file, and the Veteran does not contend, that he did not receive the notice. The Veteran did not return the form or otherwise provide documentation of his work status to the RO. In pursuing a claim, a claimant has a responsibility to cooperate in developing all facts pertinent to the claim; that is to say, VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). If the Veteran wishes help in developing his claim, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining evidence. Id. In this case, the RO requested the required information from the Veteran and advised him that the decision would be made based upon the existing record if he did not respond. The Board therefore finds that VA met its duty to assist the Veteran. A total rating for compensation purposes may be assigned where the schedular rating is less than total when it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). The threshold eligibility requirements for schedular TDIU are met when a veteran has one service-connected disability ratable at 60 percent or more, or multiple service-connected disabilities with a combined rating of 70 percent or more, provided that at least one disability is ratable at 40 percent or more. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry in a veteran's claim for TDIU is "whether that veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.340, 3.341, 4.16. Throughout the appeal period, the Veteran has been service connected for multiple disabilities. He is rated at 60 percent for his left total knee replacement. He was assigned temporary total disability ratings due to convalescence from June 25, 2008 to August 5, 2008, from August 6, 2008 to September 1, 2008, and from September 1, 2008 to October 1, 2009. Other than the periods when he was assigned a temporary total rating for convalescence, the Veteran has had an 80 percent combined evaluation during the entire period on appeal. Accordingly, the Veteran meets the percentage criteria for schedular TDIU. 38 C.F.R. § 4.16(a). The Veteran submitted an application for TDIU in July 2008, which stated that he previously worked as a housekeeping aid at the VA Medical Center (VAMC) and that he stopped working in April 2000. However, the evidence of record indicates that he subsequently obtained employment. The Veteran's VA treatment records contain evidence of his employment in the housekeeping department at the VAMC. Records from July 2012 indicate that the Veteran obtained a sick note excusing him from work due to illness. In October 2012, VA treatment records document that the Veteran experienced an "on-the-job" injury that caused him to be unable to work from November 5, 2012 to November 7, 2012. December 2012 VA treatment records document a subsequent injury to his left knee that caused him to be unable to work beginning December 22, 2012, but April 2013 treatment notes show a return to light duty. Treatment notes from May 2014 indicate that the Veteran was also excused from work on May 15, 2014 and from May 19, 2014 to May 23, 2014 due to a case of shingles. May 2015 and July 2016 VA treatment records state that the Veteran was still working as housekeeping employee at the VAMC. A VA examination in August 2008 noted that the Veteran was "currently unable to work" and needed a walker to ambulate. However, the Board notes that this examination occurred after the Veteran's knee replacement surgery and during a period when the Veteran has already been assigned a temporary total disability rating. A July 2010 VA knee examination noted that the impact of the disability on his occupation was an inability to stand or walk for prolonged periods. A VA skin examination in October 2012 noted that the Veteran's skin disabilities did not impact his ability to work, as did a VA examination from the same date regarding his foot disabilities. The Veteran contends that he is unemployable due to service-connected disabilities. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds they are entitled to significant probative weight with respect to the Veteran's disabilities at the time of the examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008). The Veteran submitted a statement in August 2014 regarding an injury when his left leg buckled, which he stated prevented him from working for four months. The medical records the Veteran provided along with this statement indicate that this is the same December 2012 injury and absence from work referenced in the VA treatment notes. The Veteran stated that he subsequently returned to work, though he was under a doctor's care for an additional two months. The Board notes that the Veteran is competent to report on his employment and accords his statement significant probative weight. The Veteran's representative submitted a written statement in January 2018 contending that the Veteran is entitled to TDIU due to "his lack of employment which is very sporadic." The statement asserts that the Veteran previously held a position as a housekeeping aid, but that he was suffering with prolonged standing, and pain and suffering from his knee replacement. The statement then notes that "the Veteran is currently 100% and because of that rating, that VA considers his request, as a moot point." However, the Board notes that the Veteran is not currently rated at 100%, and has not been rated at 100% since October 1, 2009. In addition, while the statement refers to the Veteran's lack of employment and says that he "previously" held a position as a housekeeping aid, all of the evidence of record, including the Veteran's own August 2014 statement and VA outpatient treatment records of July 2016 documenting his reports of continued employment, indicates that the Veteran continues to be employed in that capacity. No specific evidence has been provided indicating that the Veteran has terminated or reduced his employment since his reports of continued employment in noted in the July 2016 VA treatment records. Again, the Veteran was provided the opportunity to submit evidence of his current employment status and he did not avail himself of the same. It is therefore not clear to the Board that the statement pertains to the Veteran's current employment status and the Board accordingly assigns it no probative weight. The Board finds that while the records document periods when the Veteran was unable to work due to injury or illness, they also indicate that he returned to work after each period. In addition, some of the periods when the Veteran required excused absence from work were due to illness, such as shingles, rather than to his service-connected disabilities. The Board notes that inability to work due to an illness unconnected to service-connected disabilities is not relevant for purposes of entitlement to TDIU. The Board also notes that the medical record does not contain any indication that the Veteran has required leave from work due to illness or injury since May 2014. Moreover, despite periods of inability to work due to injury or illness, subsequent VA treatment records from May 2015 and July 2016 indicate that the Veteran was still working as housekeeping employee at the VAMC. There is no evidence in the record that the Veteran has ended his employment. In sum, while the Veteran's service-connected disabilities resulted in functional limitations and periods when he required leave from work due to injury, the Board finds that the evidence as a whole, however, does not support the conclusion that the Veteran was unemployable due to service-connected disabilities. Instead, the evidence of record indicates that the Veteran maintained employment for the period at issue, returned to work after any period of sick leave, and that he continues to be employed. The Board therefore finds that the preponderance of the evidence is against a finding that the Veteran was unemployable due to service-connected disabilities during the period on appeal. Accordingly, the benefit-of-the-doubt rule is inapplicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. ORDER Entitlement to a total disability rating based on individual unemployability is denied. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs