Citation Nr: 21000828 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-41 700 DATE: January 6, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities, alone, do not render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1973 to April 1974 and from December 1974 to May 1999. In January 2020, the Board found that the issue of entitlement to TDIU had been raised by the record (in an April 2019 VA examination report) and remanded it for additional development. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a TDIU. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Review of the record shows that service connection has been established for other specified trauma and stressor related disorder with insomnia and alcohol dependence in remission, rated as 0 percent disabling prior to June 16, 2014, and 50 percent disabling, from June 16, 2014; right knee chondromalacia with degenerative changes, rated as 10 percent disabling, prior to April 16, 2019, and 30 percent disabling from April 16, 2019; degenerative arthritis of the cervical spine, rated as 10 percent disabling, from April 16, 2019, and 30 percent, from April 16, 2019; radiculopathy, right upper extremity, rated as 30 percent disabling, from April 16, 2019; radiculopathy, left upper extremity, rated as 20 percent disabling, from February 10, 2020; degenerative arthritis of the right hip, rated as 10 percent disabling from April 5, 2020; tinnitus, rated as 10 percent disabling, from June 16, 2014; and bilateral hearing loss, rated as 0 percent disabling. Thus, prior to June 16, 2014, the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a), and from June 16, 2014, he does meet the schedular requirements. After weighing the medical and lay evidence of record, however, the Board finds that the criteria for referral of TDIU on an extraschedular basis are not met prior to June 16, 2014. Additionally, the preponderance of the evidence does not show that effective from June 16, 2014, the Veteran's service-connected disabilities have precluded him from securing or following a substantially gainful employment. Review of the record shows the Veteran received VA vocational rehabilitation services in 2002, and his impairment of employability was related to his right hip and right knee. His rehabilitation plan included training for computer systems technical support, and he attended college to obtain a Microsoft network specialist certificate. His services were discontinued in November 2002, and there are no subsequent vocational rehabilitation records. On the VA examination in September 2012, the examiner noted that the Veteran’s right hip internal derangement impacted his ability to work, noting that he was only able to walk for a ¼ mile, sit for an unlimited period, and stand for two hours. VA treatment records show that in September 2013, examination revealed the Veteran had hip pain and decreased range of motion. He reported that the pain kept him from sleeping and participating in activities he used to, like bike riding. In April 2014, he was seen for right hip and knee pain, and was taking medication with fair relief in symptoms. His hip did not seem to bother him much, and he occasionally had the sensation of his right knee giving way. In August 2015, it was noted the Veteran’s occupation was computer technician and that he was retired. On a VA examination in March 2015, it was noted that the Veteran worked in computer repair and putting in office networks, but retired in 2005 because he could not do the physical demands of the job such as crawling underneath desks. In March 2015, the examiner opined that the Veteran’s hearing loss and tinnitus impacted his ordinary conditions of daily life, including the ability to work, noting he had difficulty in understanding speech if there was competing noise, he could not see the speaker's face, the lighting was not good, or he was at a distance, and that his constant ringing caused him to become easily aggravated and behavioral changes due to agitation, and also the ringing in the ears caused headaches. In a statement received in November 2017, the Veteran reported his service-connected disabilities resulted in severe immobilizing joint pain, and an inability to move or maneuver which strictly limited his daily activities and life. On a VA disability benefits questionnaire (DBQ) examination in April 2019, the Veteran reported right hip pain and stiffness, but denied flare-ups. The examiner opined that the Veteran’s right hip disability impacted his ability to perform any type of occupational task, noting that he was retired, but unable to do prolonged walking, standing, or sitting. In an Individual Unemployability Statement, completed in conjunction with the DBQ, the examiner checked off a box indicating that, related to his service-connected right hip disability, the Veteran was unable to perform sedentary work in a normal 8-hour workday. Sedentary work was described as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull; and sitting most of the time, but may involve walking or standing for brief periods of time. Jobs were sedentary if walking and standing were required occasionally and all other sedentary criteria were met. On a VA DBQ examination in April 2019, the Veteran reported that his cervical arthritis resulted in pain, stiffness, and numbness and tingling to the right arm. The examiner opined that the Veteran’s cervical spine disability impacted his ability to perform any type of occupational task, noting that he had difficulty performing tasks that required gripping and grasping, and with elevating his arms overhead to perform work, and that he was unable to sit for prolonged periods. On a VA DBQ examination in April 2019, the Veteran reported that his right knee chondromalacia and degenerative changes resulted in pain, stiffness, swelling, and giving out. The examiner opined that the right knee disability impacted his ability to perform any type of occupational task, noting that he was unable to do prolonged walking, standing, or sitting. In an Individual Unemployability Statement, completed in conjunction with the DBQ, the VA examiner checked off the box indicating that, related to his service-connected right knee disability, the Veteran would be able to do sedentary work. In February 2020, the Veteran submitted an Application for Increased Compensation based on Unemployability (VA Form 21-8940), in which he reported that he was prevented from securing or following any substantially gainful occupation due to all of his service-connected conditions. He reported that his disability affected full time employment in April 2019, that he last worked full time in 2011, and that the most he ever earned was $70,000 in 2010, doing computer repair. In response to the section asking that he list all employment for the last five years he worked, the Veteran listed one employer, Deltatronics, noting that he worked 40 hours a week doing computer repair. He reported that he did not leave his last job because of his disability. He also reported his highest year of education completed was one year of college, and that he had not had any education or training before or since he became too disabled to work. In a letter dated in February 2020, the AOJ acknowledged that the Veteran submitted a VA Form 21-8940, but asked that he provide an address for his employer(s) and the period of employment. In March 2020, the Veteran submitted another VA Form 21-8940, in which he indicated that his right hip, right knee, and cervical spine prevented him from securing or following any substantially gainful employment. He reported that disability affected full time employment as of August 2013, that he last worked full time in August 2013, that he became too disabled to work in August 2013, and that the most he ever earned was $12,000 in 2012, doing computer repairs and network installation. He did not list any employers in the section that asked for a list of all employment for the last five years he worked. He reported that he did leave his last job because of his disability. He also reported his highest year of education completed was one year of college, and that he had training in computer and network installation and repairs from January 1999 through September 2003, but that he had not had any education or training since he became too disabled to work. In a letter dated in April 2020, the AOJ requested that the Veteran complete and submit the enclosed VA Form 21-8940, and, if possible, a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit) completed by each of the employers identified on the VA Form 21-8940. The AOJ also requested that the Veteran complete section 3 of VA Form 21-8940, and to make sure to provide a complete employment history. On a VA DBQ examination in November 2020, the Veteran reported right knee pain, throbbing, sharp, and worse with weight bearing. At times he had collapsed on it and had trouble reaching down to his legs and ankles. The examiner opined that the Veteran’s right knee disability impacted his ability to perform any type of occupational task, noting that right knee chondromalacia with degenerative changes severely limited his capacity to perform physically demanding activities such as heavy lifting, squatting, kneeling, bending over, and climbing stair, but that he was capable of performing sedentary tasks such as sitting and desk work. On a VA DBQ examination in November 2020, the Veteran reported recurrent right hip pain, at times dull, sharp, and constant, and worse with standing, walking, and sitting. Range of right hip motion was limited, and limited his ability to squat, sit, and use the stairs. The examiner opined that the Veteran’s right hip arthritis impacted his ability to perform any type of occupational task, noting that it resulted in pain and decreased range of motion which limited his ability for physically demanding weight bearing activities such as walking, standing, and repetitive stair use, and pain that limited the duration of sitting with sedentary work. On a VA DBQ in November 2020, the Veteran reported recurrent neck pain, that was dull and worse with turning his head or raising his arm, occasional numbness in his hands, and subjective right-hand weakness. The examiner opined that his cervical spine condition impacted his ability to perform any type of occupational task, noting it limited duties requiring looking up, down, and around for safety. After reviewing the relevant evidence, as outlined above, the Board acknowledges that the Veteran's service-connected disabilities, to specifically include his cervical spine, right hip, and right knee disabilities, are productive of a significant degree of disability, and have affected his ability to secure or follow substantially gainful employment. In 2015, the Veteran reported he retired in 2005 because he could not do the physical demands of the job. VA examiners in 2019 and 2020 opined that his service-connected cervical spine, right hip, and right knee disabilities would impact his ability to work. Although the VA examiner in April 2019 opined that due to his right hip disability, the Veteran was unable to perform sedentary work in a normal 8-hour workday, the Board notes that in November 2020, the VA examiner opined that the Veteran’s hip pain would limit the duration of sitting with sedentary work. In considering these opinions regarding the impact of Veteran’s right hip on his ability to perform sedentary work, the Board notes that both opinions appear to be based on a thorough examination of the Veteran and consideration of his medical history and available employment history. However, the Board notes that the Veteran has not provided clear information regarding his employment history. Although the Veteran submitted two separate VA Forms 21-8940, he provided conflicting information and did not complete the part of the form that requests information regarding the last 5 years of employment, despite having been requested to do so. Additionally, no further information on his employment history has been provided, and although it is clear the Veteran did computer repair and network installation work subsequent to 2003, it is unclear as to the exact dates and circumstances of his employment, and the scant details and dates he has provided regarding his work history are inconsistent. Although failure to complete the form is not fatal to a TDIU claim, his failure to do so deprives the Board of information as to his complete employment history, educational history and training, and income information necessary to address a claim for TDIU. Importantly, the Veteran is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so subjects him to the risk of an adverse adjudication based on an incomplete or underdeveloped record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). “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, 1 Vet. App. at 195. Because the Veteran has not responded to VA’s attempts to develop the claim for TDIU that was raised by the record, and has not provided the information requested to permit adequate adjudication of the TDIU claim, the Board cannot conclude that he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. In conclusion, while the Board does not wish to minimize the nature and extent of the Veteran's service-connected disabilities, the evidence of record simply does not support his claim that his service-connected disabilities alone are sufficient to produce unemployability. To the extent he is limited by his service-connected disabilities, any such limitation is contemplated in, and is being adequately compensated by, the current disability ratings assigned. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.