Citation Nr: 21000560 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-20 015A DATE: January 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Service connection is in effect for posttraumatic stress disorder (PTSD), which has been rated as 70-percent disabling effectively since March 27, 2009 and presumes it causes occupational and social impairment with deficiencies in most areas. 2. However, the most probative (meaning most competent and credible) evidence of record is against finding that this service-connected disability precludes him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria are not met for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.   REASONS AND BASES FOR FINDINGS AND CONCLUSION Aside from increasing the rating for the Veteran’s PTSD from 30 to 70 percent, the Board remanded this derivative TDIU claim in September 2020 to have him complete an official TDIU application (VA Form 21-8940), partly to ascertain his income and, in turn, determine whether his employment is just marginal instead of substantially gainful. In October 2020, to this end, VA requested this information from him; thus, the Board finds there was compliance, certainly the acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). But, despite VA’s request, he has not provided the information. The Board also sees that, in November 2020, VA sent him and his attorney a Supplemental Statement of the Case (SSOC) explaining that this TDIU claim was being denied and that the Veteran had failed to submit evidence that he was not gainfully employed due to his service-connected disability, also that he had not returned a completed VA Form 21-8940. Despite this additional notification, he still has not submitted the required information. The duty to assist is not a one-way street. If he 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 Board, therefore, is proceeding with its adjudication of this claim. Entitlement to a TDIU The Veteran contends that his service-connected PTSD precludes him from obtaining or maintaining substantially gainful employment. This is his only service-connected disability – which, as already mentioned, has been evaluated as 70-percent disabling effectively since March 27, 2009. He has decades of experience as a truck driver. He has a GED (General Equivalency Diploma) and has reported not knowing how to read or write while in school, that he only went to school until age 12, that he only completed 5th grade or that he only completed 8th grade, and that he was considered to have learning disabilities.   The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. So, above and beyond that, there must be indication of inability to work in any substantially gainful capacity for a claim of entitlement to a TDIU to prevail. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disability alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. In March 2019, the higher U. S. Court of Appeals for Veterans Claims (Veteran’s Court/CAVC) issued a panel decision in Ray v. Wilkie, 31 Vet. App. 58 (2019) – which, in part, formulated a definition for "substantially gainful employment". The Court explained that this term contains economic and noneconomic components; the economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also 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.   Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment also may be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. §§ 4.16(a), 4.18. When remanding this claim in September 2020, the Board pointed out the Veteran apparently was still working, albeit seemingly just on a part-time basis. That was one of the reasons for asking that he complete and return a TDIU application (VA Form 21-8940) so that VA adjudicators, in turn, could assess his income in relation to the poverty level and determine whether his employment is substantially gainful versus just marginal in comparison. An April 2009 VA mental health record reflects that the Veteran owns and drives his own truck (his then current wife traveled with him because she could not be left alone). He reported that he was driving less recently, though business had picked up more lately. His wife insisted that they are financially stable, and that he does not need to work as much as he does; however, he was concerned with the economy and doctor’s bills. A July 2009 record shows he had been a driver for some 25 years for A. N., but that work was not good because there was less traveling and since the economy was bad (at that time). A May 2012 record indicates the Veteran reported still working part time as a truck driver, but that he calls his wife often because he gets lost and cannot properly follow GPS (Global Positioning System) directions. A May 2012 VA neuropsychology consult record contains the opinion of the provider that there is “little evidence that [the Veteran’s] cognitive skills have declined recently, rather it seems that they have always been a challenge for [him]”. A July 2012 VA treatment record reflects that the Veteran reported that his attention and memory are a problem for him, but that he will “try to work for 1-2 years and will move to Columbia with his wife.” A November 2012 Disability Benefits Questionnaire (DBQ) shows the Veteran had occupational and social impairment due to just mild or transient symptoms. He indicated that he was, at that time, employed as a truck driver but that he was driving less due to decreased cognitive function. Records dated in 2013 recount complaints that the Veteran’s cognitive issues were getting worse, and that his wife was encouraging him to retire and file a claim for an increased rating (which, as already mentioned, he eventually did, which, in turn, resulted in the increase in rating for his PTSD from 30 to 70 percent). More recent records dated in 2014 and 2015 also note complaints, to include memory issues. For example, he reported having difficulty with directions while driving, getting lost easily, and cannot find his way without a GPS. He also reported that he sometimes cannot find words, he misplaces things, he can no longer do mental calculations, he has issues with counting change, and has difficulty reading. A December 2014 record reflects that he reported forgetting tasks more frequently and described how his memory does not expand but stays in one place. Still other records continue to show complaints of memory loss and the statement of the Veteran’s wife that he does not want to leave the house, isolates, is sad, unmotivated, and has a lack of energy. He explained that his memory is worse when he is stressed. However, the records in the file continue to reflect that the Veteran is employed. For example, a July 2013 record notes that he was behind in his mortgage and still working part-time as a truck driver to “supplement his income”. An October 2013 record shows he reported working as a truck driver for approximately 8 hours a day (which, if true, is a full workday). A July 2015 record reflects that he wanted to retire from truck driving but that it was his source of income; he was advised to reduce his workload, and if he continued to have difficulties with contention to stop working and apply for Social Security Administration (SSA) benefits.   He was 71 years old at the time and, thus, would have been eligible for benefits from this other Federal agency owing to his age, although a more recent SSA inquiry in 2020 does not reflect that he is receiving SSA benefits based on disability, so including because of his service-connected PTSD. A June/August 2020 private DBQ confirms the Veteran is still employed as a truck driver. The examiner (H. H.-G.) opined that the Veteran’s PTSD prevents him from “maintaining substantially gainful full[-]time employment.” However, she failed to elaborate on why his part-time employment is not substantially gainful employment. Essentially, it is not the number of hours worked that is paramount, instead, the income earned is the determinative factor. The DBQ indicates the Veteran works part-time three times a week to “make ends meet” and that he needs to work to buy food and pay rent. The Veteran has stated that his work lessened, in part, due to the economy and/or due to his cognitive functioning. He has stated that he has relied on his co-workers to load the deliveries, but he failed to elaborate on how his PTSD, especially, interferes with loading deliveries and whether this is a required element for drivers. He has not provided sufficient evidence to support the notion that his employment has been in a sheltered (protected) work environment, meaning only with special accommodation. There are no letters, affidavits, or statements from co-workers or supervisors documenting his need for accomodation or indicating a date he became too disabled to work or listing his gross monthly earnings. To reiterate, because the claims file does not include the Veteran’s income, the Board remanded this claim in September 2020 so he could provide this needed information. Unfortunately, though, he has not provided this necessary income information despite VA’s October 2020 request. Essentially, then, as an unfortunate consequence, there is insufficient evidence of record upon which to find that his PTSD precludes substantially gainful employment because he has not provided VA with information regarding his income from 2009 to the present. The record reflects that he has been employed rather continuously in some form or fashion as a truck driver continually during the rating period on appeal (i.e., since March 2009).   The evidence further reflects that he earns enough money to pay for food and rent (albeit at one time he was behind in his mortgage payments). There is no evidence of record that his spouse or anyone else provides income or that he only lives above the poverty level due to such support. To the contrary, the evidence indicates that he cares for his adult son, that he gives money to his adult stepdaughter for expenses, and that his first wife did not work. The Board simply cannot find that he has been unable to maintain substantially gainful employment for the last 11 years when he has failed to provide specific income information needed to assist in making this important determination, and when there are 2012 examination findings against any such conclusion. For these reasons and bases, a TDIU is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.