Citation Nr: 1827770 Decision Date: 05/02/18 Archive Date: 05/14/18 DOCKET NO. 12-02 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Jeffrey J. Bunten, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted entitlement to service connection for right knee patellofemoral pain syndrome and assigned an initial noncompensable disability rating. In September 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. In a December 2016 decision, the Board granted an initial rating of 20 percent for right knee patellofemoral pain syndrome and assigned a separate rating of 10 percent for right knee instability. The Board assumed jurisdiction for the Veteran's claim for a TDIU rating that was raised by the record in connection with the above-referenced appeal. The Board remanded the Veteran's claim for a TDIU rating for further development. The Board finds that there was substantial compliance with the Board's December 2016 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). The AOJ accomplished the Board's directives in a March 2017 letter. That development having been completed, the claim has returned to the Board. FINDING OF FACT The Veteran's service-connected disabilities did not render him unable to secure or follow substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Applicable Law Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability); see also 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must give full consideration to "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to a TDIU rating. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. If the schedular requirements for TDIU are not satisfied, but the veteran is still found to be unable to work due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). II. Analysis The percentage requirements for schedular consideration of entitlement to a TDIU rating are satisfied as the Veteran's service-connected disabilities have a combined rating greater than 70 percent. For the reasons that follow, the Board finds that the Veteran's service-connected disabilities have not produced unemployability. In March 2017, the Veteran was provided with a formal application for a TDIU rating (VA Form 21-8940). The Veteran did not return the completed application or submit any additional information. A substantially complete VA Form 21-8940 is required to establish entitlement to TDIU. Veterans Benefits Administration (BVA) Adjudication Procedure Manual (Manual), IV.ii.2.F.2.b. It provides relevant and indispensable information regarding a claimant's disabilities and employment and educational histories, and concludes with a series of sworn certification statements endorsing the Veteran's employment status and signaling his or her understanding that TDIU benefits are incompatible with substantially gainful work. Id. When a claimant does not cooperate with development of a TDIU claim by not returning a completed VA Form 21-8940 when requested, the VBA Manual instructs that the claim is to be denied. VBA Manual, IV.ii.2.F.4.k; cf. 38 C.F.R. § 3.158 (2017) (providing that when evidence requested in connection with an original claim is not furnished within one year after the date of request, the claim will be considered abandoned). Moreover, the evidence shows that the Veteran is currently gainfully employed. A May 2016 VA treatment records reflects that the Veteran was not working due to back surgery. However, by September 2016 the Veteran was released back to work without restrictions. See September 2016 VA Treatment Record. VA treatment records dated from September 2016 to November 2017 consistently note the Veteran was working full-time in avionics. The Veteran underwent a VA Mental Disorders (other than PTSD and Eating Disorders) Examination in May 2017. The examination report notes that the Veteran currently works as an avionics technician for Eagle Med. Where the evidence establishes that a veteran is gainfully employed on a full-time basis, a TDIU cannot be granted during this period as a matter of law. See Sabonis v. Brown, 6 Vet App 426 (1994); see also Faust v. West, 13 Vet. App. 342, 356 (2000); 38 C.F.R. § 4.16(b) (reflecting that, 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 disability shall be rated totally disabled). While the evidence shows that the Veteran was unemployed for a period of time, or temporarily not working while recovering from back surgery, it does not show that the Veteran's service-connected disabilities were sufficiently disabling as to prevent him from obtaining or maintaining substantially gainful employment. The Veteran denied occupational impairment in an August 2007 VA Mental Health Outpatient Initial Evaluation Note. A September 2008 VA Counsel Record - Narrative Report demonstrates the Veteran was employed for approximately the last two years in a stable position. A VA treatment record from October 2009 illustrates the Veteran quit his employment in February 2009 because it became too painful. However, a December 2011 VA Mental Disorders (other than PTSD and Eating Disorders) Examination shows the Veteran resigned his position in 2009 because of stress and problems taking leave to attend medical appointments. A May 2010 VA treatment record shows the Veteran was working in Wichita, Kansas. A June 2010 VA Heart Exam notes the Veteran had been employed full-time as an electronic repairmen for less than one year and lost less than one week of time of work due to back pain. A July 2011 Mental Examination demonstrates the Veteran was working for one and a half years as an electronics technician. A VA Nurse Practitioner Note from October 2012 shows the Veteran quit his employment and was attending "aviation technology school." VA treatment records in 2013 and 2014 show the Veteran was at times working part-time and also attending school and attending school full-time. The Veteran underwent a VA Knee and Lower Leg Conditions Examination in January 2015, in which the examiner concluded that while the Veteran reports he is not working due to back and knee disabilities, he should be able to perform sedentary work. The evidence of record does not reflect, and the Veteran does not maintain, that his earned annual income ever failed to exceed the poverty threshold determined by the U.S. Department of Commerce, Bureau of the Census. See 38 C.F.R. § 4.16(a). In a September 2008 VA Rehabilitation Needs Inventory, the Veteran advised he is employed full-time in a permanent position and his average monthly salary is $3,800.00 plus overtime. Neither is there any argument or evidence suggesting that the Veteran's actual employment was "marginal" in nature, i.e., that he was ever employed in a protected environment, such as a family business or sheltered workshop, so as to support a determination of marginal employment on a facts-found basis. See id.; see also Moore, 1 Vet. App. 356 (work that is more than marginal permits the individual to earn a "living wage"). Accordingly, there is no indication that the Veteran's employment was anything other than gainful. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The preponderance of the evidence weighs against a finding that the Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation during the period under review. Further, the evidence of record indicates the Veteran is currently gainfully employed. Consequently, the benefit-of-the-doubt rule does not apply, and a TDIU rating is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs