Citation Nr: 20022018 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 10-13 997A DATE: March 30, 2020 ORDER Entitlement to a total disability rating based on individual unemployability effective February 22, 2010, to July 6, 2010, and from September 1, 2010, to September 19, 2010, is granted. FINDINGS OF FACT 1. The evidence shows that the Veteran’s service-connected disabilities precluded him from securing and following a substantial gainful occupation from February 22, 2010, to July 6, 2010, and from September 1, 2010, to September 19, 2010. 2. Prior to February 22, 2010, the Veteran was substantially and gainfully employed. CONCLUSION OF LAW The criteria for a TDIU have been met from February 22, 2010, to July 6, 2010, and from September 1, 2010, to September 19, 2010. 38 U.S.C. § § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1996 to December 2008. The Veteran testified before the undersigned Veterans Law Judge at September 2016 hearing. A copy of the transcript has been associated with the claims file. The Board raised the issue of a total disability rating based on individual unemployability based on issues appealed from an August 2009 rating decision from a Regional Office (RO) for Department of Veterans Affairs (VA). 1. Entitlement to a total disability rating based on individual unemployability The Veteran contends his service-connected disabilities render him unable to obtain or maintain employment. See April 2010 VA Form 9. The Veteran is rated as 100 percent disabled from September 20, 2010 and is in receipt of special monthly compensation (SMC) from that date. The Veteran has also been in receipt of a 100 percent rating and special monthly compensation from July 7, 2010 to August 31, 2010, and from September 20, 2010. In the Board remand of September 2019, it was observed that the allegation of unemployability prior to and after the 100 percent ratings and grants of special monthly compensation formed the basis of the remand. The periods under review here are from December 3, 2008, to July 6, 2010, and from September 1, 2010, to September 19, 2010, when the Veteran’s combined rating was 90 percent. A total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Factors to be considered are the Veteran’s education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In evaluating total disability, 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 effects of combinations of disability. 38 C.F.R. § 4.15 (2017). The Veteran is service-connected for multiple disorder and has a combined rating of 90 percent from December 3, 2008, to July 6, 2010, a combined rating of 100 percent rating from July 7, 2010 to August 31, 2010, (with special monthly compensation at the S-1 level), and a 90 percent rating from September 1, 2010 until September 20, 2010. Following this date, the Veteran has had a combined rating of 100 percent with special monthly compensation assigned at the S-1 rate. He meets the schedular criteria under 38 C.F.R. § 4.16 (a) for a TDIU for all periods on appeal and therefore the only relevant inquiry is whether the Veteran’s disabilities resulted in unemployability. 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 or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016). Unfortunately, the Veteran did not complete a VA Form 21-8940. In the September 2019 Remand, the Board remanded the TDIU claim for further development. Pursuant to the Remand instructions, the RO sent the Veteran a notice with a request for completion of a Veteran’s Application for Increased Compensation Based on Unemployability or Form 21-8940 in October 2019. The Veteran did not return a completed Form 21-8940 to support his claim. While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran’s employment history, educational history and training, and income information necessary to properly address a claim for TDIU. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The pertinent evidence establishes that the Veteran worked for the Department of the Army from 2008 to 2010. When examined by VA in April, May, and June 2009, it was noted that the Veteran was employed fulltime as a hospital educator and had lost no time from work. VA progress notes from July 2009 show he continued in his position a safety specialist at an army hospital. In his October 2009 notice of disagreement, the Veteran stated that he was struggling with one of his service-connected disorders and that he did could not meet his appointments and kept his job. This implies his continued employment at the time of this appointment. A February 2010 letter from John D. Amar, M.D. confirms that the Veteran was unable to continue with this program as he was experiencing vertigo. It was his opinion that the Veteran should be reassigned to another job in a different category. The Veteran subsequently enrolled in school to pursue a social work degree and later that year, he was hospitalized for a lengthy period for a service-connected disability. The first indication from the Veteran that he was unemployed was a February 22, 2010 memorandum from the Department of the Army removing him from his position with their career program. There is evidence that the Veteran was capable of engaging in employment prior to this date and did engage in employment. The Veteran’s previous work history largely consisted of serving as a flight medic in the Army. The Veteran did not have a substantial civilian career prior to joining the Army. The Board notes that the Veteran was employed and capable of employment with the Department of the Army from 2008 until February 2010 as a safety advisor.   There is no indication in the record and no argument by the Veteran that his work from 2008 to 2010 was a protected environment or that his employment was not substantially gainful employment. A VA general medical examination from April 2009 indicates that the Veteran had not lost any time from work due to his medical conditions. In sum, the evidence demonstrates that appellant’s service-connected disabilities precluded him from maintaining gainful employment in his field beginning with his February 22, 2010 separation from his career program with the Department of the Army being the first date at which it is as likely as not ascertainable that he was no longer employed due to the physical limitations that his vertigo imposed. The Board also notes that the Veteran was experiencing suicidal ideation on a daily basis prior to his inpatient admission for treatment of his PTSD. He subsequently enrolled in a course of study to obtain a new career due to his inability to continue in his current field. After completing his course of study, the Veteran was able to secure gainful employment, and it appears that he may still continue to see patients on a part time basis at this time. The evidence shows that the Veteran was unable to follow a substantially course of employment during the period from February 22, 2010, until he obtained employment in August 2012. It appears from the Veteran’s vocational rehab records that he did not work from time he left the Department of the Army in February 2010 until approximately August 7, 2012 when he took on two part-time jobs. While the Veteran has failed to cooperate with VA’s attempts to develop the claim for TDIU, the evidence demonstrates that he was unable to secure and maintain employment from at least February 22, 2010 until August 2012. Given the foregoing, there is a basis for a TDIU based on the record before the Board   from February 22, 2010 to July 6. 2010, and from September 1, 2010, to September 19, 2010. As noted above, these dates represent the dates in which the Veteran received a 90 percent combined rating and did not receive SMC at the S-1 level. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John M. Middleton 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.