Citation Nr: 20007112 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 09-48 686 DATE: January 28, 2020 ORDER Entitlement to service connection for a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not preclude the Veteran from securing and following gainful employment. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1998 to April 1998 and from June 1998 to October 2004. This matter was previously before the Board in April 2018. In the decision, the Board resolved issues of entitlement to an increased rating for right knee strain and left knee strain. In addition, the Veteran’s claims of entitlement to earlier effective dates, for the assignment of separate evaluations, for right knee limitation of extension and left knee limitation of extension, were also decided. Pertinent to the current appeal, the Board also denied the Veteran’s claim for entitlement to TDIU finding that the Veteran abandoned his claim. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (the Court) and the parties entered into a Joint Motion for Partial Remand (JMPR) in July 2019. In the JMPR, the Veteran stated that he was not challenging the Board’s decision concerning his claims for an increased rating for his right and left knee disabilities and requested that the Court dismiss the appeal with regard to those issues. However, the Veteran disagreed with the Board’s decision concerning entitlement to TDIU. The parties agreed that the portion of the Board’s decision denying entitlement to TDIU would be vacated and remanded. As such, the matter has been returned to the Board for compliance with the Court’s order. 1. Entitlement to a TDIU. A 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. Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. 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 is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019) the Court clarified that substantially gainful employment contains economic and noneconomic components. The Court provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Ray v. Wilkie, 31 Vet. App. at 73. Here, the Veteran met the percentage requirements for a TDIU as of October 9, 2009 based on service-connected disabilities of PTSD, rated as 30 percent disabling; lumbar strain, rated as 10 percent disabling; right knee strain with degenerative arthritis, rated as 10 percent disabling; left knee strain with degenerative arthritis, rated as 10 percent disabling; right knee limitation of extension, rated as 10 percent disabling; left knee limitation of extension, rated as 30 percent disabling; and right hip strain, affecting adduction, abduction, and rotation, rated as 10 percent disabling. For the purposes of meeting the schedular requirements for the assignment of a TDIU, the Veteran’s service-connected left and right knee disorders, being disabilities of both lower extremities, including the bilateral factor, are considered one disability, which combine to a rating of 50 percent; and, the Veteran had a combined disability rating of 70 percent, as of October 9, 2009. Thus, for the entire appeal period, the schedular criteria for a TDIU have been met. 38 C.F.R. § 4.16 (a). Therefore, the pertinent question is whether these service-connected disabilities preclude substantially gainful employment. As noted above, the Veteran’s claim for TDIU was previously denied in the Board’s April 2018 decision. In doing so, the Board found that it could not properly adjudicate the Veteran’s TDIU claim since the Veteran failed to provide a completed VA Form 21-8940 (TDIU application). Thus, the Board concluded that the Veteran abandoned his claim. In contrast, the Veteran asserted that the Board erred in finding that he abandoned his claim for TDIU since the record contained other evidence relevant to the issue of TDIU that the Board did not consider. Specifically, the Veteran contended that his November 2014 hearing testimony, his December 2009 Notice of Disagreement (NOD), and a February 2018 letter to the Board all contained evidence of his unemployability. In reviewing the evidence cited by the Veteran, the Board notes that in his December 2009 NOD, the Veteran reported that he was not able to take a certain position at his job because of his knee pain. In his November 2014 hearing, he testified that he was unemployed due to his knees; and, in his February 2018 correspondence, he wrote that he cannot keep any employment because he cannot stand for long periods of time. While the Veteran has suggested in all three instances that his knees prevented him from securing and following gainful employment, the Board disagrees. The Board finds that a TDIU is not warranted as the evidence does not support a finding that the Veteran’s service-connected knees, alone, or in combination with his other service-connected disabilities, precluded the Veteran from securing or following gainful employment. In so finding, the Board initially notes that, to date, the Veteran has yet to provide an application for TDIU detailing the nature, hours, and income relating to any employment he may have had. However, as suggested by the Veteran, the Board has considered other evidence of record which shows that the Veteran was substantially and gainfully employed. A review of the record shows that in his attorney’s November 2019 brief, the attorney stated that the Veteran was employed as a mail handler with the United States Postal Service (USPS) from 2005 to 2014, and that this was the extent of his employment. The attorney further noted that the Veteran has remained unemployed since 2014, and the Veteran reiterated the same in his November 2014 hearing. However, in a December 2017 Rehabilitation Needs Inventory (RNI) form for vocational benefits, the Veteran reported that he worked as a mail handler from January 2010 to April 2013, and as a bus driver from September 2013 to July 2016. He indicated that the positions were full-time and that his average gross monthly salary for each position was $1,700.00 and $1,600.00, respectively. Similarly, in the Veteran’s resume, which was associated with the record in February 2017, it also included employment history as a bus driver from September 2013 to June 2016, and past employment with the USPS from January 2015 to January 2016. Considering these findings, the Board concludes that the Veteran was substantially and gainfully employed while working for the postal service and as a bus driver and would not have been eligible for TDIU since his average monthly income of $1,600.00 and $1,700.00 were above the poverty threshold for one person. The Board also finds that the Veteran’s service-connected disabilities did not preclude the Veteran from working. In his December 2017 RNI form, the Veteran indicated that his bus position ended because the company shut down, and that he left his job as a mail handler because the term ended. Notably, the Veteran did not assert that any of his service-connected disabilities caused him to leave these places of employment. Further, the Veteran’s VA examinations do not show that his service-connected disabilities prevented him from obtaining substantial gainful employment. For instance, in his April 2011 VA psychiatric examination, the Veteran reported working on and off for the past six years with the post office. Although he reported that it was difficult to relate to his supervisor and that relationships with his co-workers were poor, he reported that he did not lose any time from work. The examiner also did not find that the Veteran’s PTSD prevented him from working. Instead, the examiner concluded that the Veteran’s symptoms cause an occasional decrease in work efficiency and inability to perform occupational tasks. Additionally, in his November 2015 VA knee examination, the examiner found that the Veteran’s knees did not impact his ability to work. In fact, the examiner noted that the exam was “notable for a lot of overplay” and that the “Veteran gave poor effort,” which limited the accuracy of the exam. Conversely, in his October 2017 knee examination, the examiner found that the Veteran would have difficulty with duties involving kneeling, squatting, prolonged standing or walking. Similarly, in his April 2017 back examination, the examiner found that the Veteran is unable to squat, lift heavy objects, as well as, sit and stand for long periods of time; and in his October 2017 back examination, it was noted that he would have difficulty with duties involving prolonged standing, twisting, bending, heavy lifting, or extensive walking. Moreover, in his April 2017 hip examination, the examiner concluded that the Veteran is unable to stand, sit, and walk for extended periods of time, and that he was unable to lift heavy objects and squat; while his October 2017 hip examination found no functional impact. Although the Veteran’s service-connected knees, back, and right hip appear to limit the Veteran’s functional ability involving certain types of employment, none of the examiners found that the Veteran’s conditions precluded the Veteran from working altogether. Furthermore, the evidence shows that the Veteran was working part-time in 2019 and was seeking assistance to obtain full-time employment. The Board particularly notes that in an amended January 2019 Individualized Written Rehabilitation Plan (IWRP), it was noted that the Veteran had not worked since 2016 as a bus operator, but that he was interested in an administrative position. It was also noted that the Veteran advised that he did not have any barriers to seeking employment; he had stable housing/transportation, etc., and no acute medical conditions. Additionally, in a May 2019 email correspondence, the Veteran reported that he was working at USPS in a temp position but that he wants help looking for something full time. The Board notes that while the record appears to show that the Veteran may have been unemployed from 2016 to 2019, a March 2017 Rehabilitation Plan shows that the Veteran was enrolled in school to pursue a degree in information technology. Moreover, there is no evidence that his service-connected disabilities precluded the Veteran from obtaining gainful employment during this period, which was confirmed by the Veteran’s own statement in the January 2019 IWRP when he stated that he does not have any barriers to seeking employment. Furthermore, VA treatment records do not show that the Veteran’s service-connected disabilities precluded employment. For example, treatment records show that the Veteran received knee injections approximately every six months and that he had good results. In a March 2016 medical visit, he reported that his last knee injection, completed in September 2015, relieved pain for about five months. The examiner noted there was increased function demonstrated by his ability to walk and stand longer. In a September 2016 primary care visit, the Veteran reported no complaints. Physical examination of his extremities showed no edema, clubbing or cyanosis; and minimal crepitus to both knees. It was also noted that his PTSD was stable. Further, in an April 2017 medical visit, the Veteran again reported that his last knee injection provided relief for five months. Physical examination showed no swelling, no heat, and no effusion. The Board also notes that treatment records are silent for any complaints or treatment for his back or right hip; and, in an October 2015 medical visit, the examiner noted that the Veteran’s back exhibited full range of motion with forward bending and there was no tenderness. The Board has also considered the credibility of the Veteran’s statements. For instance, in his 2014 hearing, the Veteran testified that he was unemployed because of his knees. He further testified that he cannot drive because his knee stiffens up and hurts even when driving down the street for half a mile. However, contrary to his testimony, the evidence shows that the Veteran was gainfully employed until 2016, particularly as a bus driver from 2013 to 2016, and that he merely left the job because the company shut down. Further, in a February 2018 correspondence, the Veteran wrote that he cannot keep any employment because he cannot stand for periods of time; however, this limitation did not prevent the Veteran from securing and following gainful employment as he was able to obtain part-time employment in 2019 and was seeking full-time employment. Moreover, the evidence suggests that the Veteran may have exaggerated his knee disability as the November 2015 examiner noted that the accuracy of the examination was limited since the Veteran did not perform optimally during his knee examination. Given the above and remaining evidence, the Board finds that the preponderance of the evidence is against the claim. The evidence shows that the Veteran was gainfully employed from 2010 to 2016, and in 2019; and there is no evidence that his service-connected disabilities precluded the Veteran from working. The Board notes that in his 2014 hearing, the Veteran testified that he sought private treatment for his knees; however, the RO attempted to assist the Veteran in retrieving these records, but the Veteran did not return the enclosed VA Form 21-4142, Release of Information Form, nor did he return the enclosed VA Form 21-8940 Application for TDIU. Therefore, since the Veteran has not identified any specific outstanding records that indicate he is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, the Board concludes that the criteria for entitlement to a TDIU are not met. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is a “two-way street”). There exists no evidence, other than the Veteran’s statements, to support a finding that his service-connected disabilities are of sufficient severity to produce unemployability. Thus, the claim for entitlement to TDIU is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.