Citation Nr: 20022079 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 15-23 279 DATE: March 30, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude him from obtaining and maintaining any substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to September 1972. In August 2018, the Board of Veterans’ Appeals (Board) remanded this claim for further evidentiary development. The case has returned to the Board for further appellate review. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In reaching a TDIU determination, 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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Moreover, for a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect circumstances which place that veteran's case in a different category than other veterans with an equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The medical evidence addressing the functional effects of a veteran's disability on his ability to perform the mental and/or physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Regarding the schedular requirements, the Board notes that the Veteran’s service-connected disabilities include a right ankle disability, evaluated as 40 percent from June 28, 2013; a right total knee disability, evaluated as 30 percent from April 1, 2010; a left knee disability, evaluated as 30 percent from December 1, 2011; tinnitus, evaluated as 10 percent from October 20, 2011; and bilateral hearing loss, evaluated as noncompensable from July 16, 2012. The Board notes that the Veteran was awarded special monthly compensation (SMC) on account of his right ankle disability then temporarily rated as 100 percent and additional service-connected right knee disability, independently rated at 60 percent or more from December 1, 2009 to March 1, 2010. The Board further notes that the Veteran was granted 100 percent combined evaluation from December 1, 2009 to April 1, 2010. The SMC and temporary 100 percent rating were due to the Veteran’s knee surgery and while it does show that the Veteran was incapacitated for a period of time following his surgery, it does not show that the Veteran was or is unemployable due to his service-connected disabilities. The Veteran’s combined rating is 80 percent from June 28, 2013; therefore, the Veteran meets the threshold schedular requirement for TDIU from June 28, 2013. 38 C.F.R. § 4.16 (a). The Board notes that in an August 1997 Statement in Support of Claim form, the Veteran stated that he was a helicopter pilot and employed by the Federal Aviation Administration (FAA) as an Air Traffic Control Specialist from 1974 until 1994. The Veteran further stated that he saw a flight surgeon in the late 1980s and early 1990s regarding his ankle and knee disabilities, and the surgeon indicated that a record would not likely have been recorded as it did not affect his ability to fly or to work for the FAA. A July 2010 VA examination for the Veteran’s right knee shows that the Veteran reported retiring in 2007 from his usual occupation as a pilot, and the cause of retirement was listed as eligible for retirement by age or duration of work. A September 2010 VA examination for the Veteran’s left knee and right ankle shows that the Veteran reported that he retired from the FAA and had no limitations due to ankle pain while he was working, however, the Veteran reported that if he currently was working at that time, he would have difficulty with walking up and down the stairs, an inability to push carts, prolonged ambulation, and walking up and down sloped terrains. However, this appears that the Veteran was hypothesizing work issues that could potentially arise had he been working and not retired at the time; an award of TDIU cannot be based on unrealized events or what might occur in the future or could have occurred in the past. The September 2010 examiner noted that the Veteran’s activities are not affected by his current ankle problem or his current left knee problem. At a June 2012 VA examination for the Veteran’s hearing loss claim, the examiner noted that the Veteran’s hearing loss impacts ordinary conditions of daily life, including the ability to work in that the Veteran reported that he had difficulty hearing if there is a lot of background noise, he has trouble with the television and has to turn the volume up a lot, no specific reference was made regarding the inability of the Veteran to work. At September 2013 disability benefits questionnaires (DBQs) for the Veteran’s feet, ankles, and hands, the examiner noted that the Veteran’s feet disability did not impact his ability to work; for the Veteran’s right ankle, the examiner noted that the Veteran’s right ankle impacts his ability to work in that it affects his ability to walk long distances; for the Veteran’s hands, the examiner noted that the Veteran’s hand disability does not impact his ability to work but noted that the Veteran cannot lift greater than 10 pounds. In March 2014, the Veteran was afforded VA examinations for his knees, ankles, hands, and feet. The examiner noted that these disabilities do not impact his ability to work. As previously mentioned, this claim was previously before the Board in August 2018, and the Board found that the evidence shows that the Veteran is not working and in light of the decision of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board remanded the issue and instructed the AOJ to send the Veteran a VA Form 21-8940 and request that he complete and submit it. Pursuant to the Board remand, in August 2019, correspondence containing the VA Form 21-8940 was mailed to the Veteran and his representative. The correspondence notified the Veteran that he may be entitled to TDIU if he is unable to secure and follow a substantially gainful occupation because of his service-connected disabilities and that if he believed he qualifies for TDIU, to complete, sign, and return the enclosed VA Form 21-8940. The correspondence further encouraged the Veteran to send any information or evidence as soon as he can and if no response was received, a decision on this TDIU claim would be made after 30 days. No response or completed VA Form 21-8940 was received from the Veteran or from the Veteran’s representative. In November 2019, the AOJ issued a rating decision and supplemental statement of the case (SSOC) denying TDIU, noting that a completed VA Form 21-8940 was not received and informing the Veteran that this form is required to further consider this claim. In a submitted March 2020 statement, the Veteran’s representative noted that a VA Form 21-8940 had been sent to the Veteran’s residence, but it had not been returned. The representative further noted that she tried to contact the Veteran telephonically but there was no answer, she even sent out another request for the Veteran to fill out the VA Form 21-8940 with a cover letter to do so and send back to her immediately. While the representative concedes that the Veteran did not submit the requested form, the Veteran’s representative notes that the Veteran continues to assert that he is entitled to the relief sought on appeal but does not assert with specificity the Veteran’s contentions or provide additional information regarding the Veteran’s employment history. The Board acknowledges the Veteran’s representative’s statements and contentions of his unemployability. The ultimate responsibility for a TDIU determination is a factual question and is an adjudicative determination made by the Board or the AOJ. Geib, 733 F.3d at 1354 (citing 38 C.F.R. § 4.16 (a)). After consideration of the medical and lay evidence of record, the Board finds that the evidence is insufficient to show the Veteran is unemployable due to his service-connected disabilities. Based on the evidence of record, the Board finds that the Veteran’s disabilities did not precluded him from all forms of employment. Specifically, the evidentiary record, which includes medical evidence, opinion evidence, and the Veteran’s lay assertions concerning the impact of his disabilities, demonstrates that the Veteran is not precluded from working due to his service-connected disabilities. The available record reflects that the Veteran had been retired from his usual occupation throughout the course of this appeal, and the Veteran himself has not asserted that he was unemployable. Furthermore, the March 2020 statement submitted by the Veteran’s representative did not necessarily assert that the Veteran was unemployable. The Board notes that some of the Veteran’s medical records indicate that the Veteran’s disabilities did not have a functional impact on his ability to work. The Board additionally notes that other medical examinations and reports on record indicate the Veteran’s disabilities caused some functional impairment but did not opine or find that the impairments prevented the Veteran from obtaining or maintaining substantially gainful employment in an active or sedentary capacity. In addition, the Veteran was afforded the opportunity to clarify his work history and submit information on how his disabilities prevented him from obtaining or maintaining substantially gainful employment by submitting a VA 21-8940 form, but the Veteran did not complete the form and has not submitted any further evidence regarding his work history or the impact of his disabilities on his occupational ability. Accordingly, the Board finds that weight of the available lay and medical evidence demonstrates that the criteria for a TDIU have not been met or more nearly approximated. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.