Citation Nr: 21003682 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-40 938A DATE: January 22, 2021 ORDER Prior to September 13, 2019, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Prior to September 13, 2019, the evidence of record is insufficient to determine that the Veteran was unable to secure or follow substantially gainful employment. CONCLUSION OF LAW Prior to September 13, 2019, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1996 to March 2000. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in April 2018 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In May 2020, the Board granted entitlement to a TDIU, from September 13, 2019, and remanded the issue of entitlement to a TDIU, prior to September 13, 2019, for additional development. Entitlement to a TDIU, prior to September 13, 2019. The Veteran seeks entitlement to a TDIU. Without regard to advancing age or impairment due to nonservice-connected disabilities, if the schedular rating is less than total, a TDIU rating can be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability(ies); provided that he 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a Veteran fails to meet the percentage standards set forth in § 4.16(a) but is unemployable by reason of service-connected disabilities, the claim may be submitted for extraschedular consideration. 38 C.F.R. § 4.16 (b). 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. Marginal employment shall not be considered substantially gainful employment. Consideration shall be given in all claims to the nature of employment and the reason for termination. 38 C.F.R. § 4.16. An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether a Veteran’s service-connected disabilities alone are of sufficient severity to render the Veteran unable to secure or follow a substantially gainful occupation. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, a TDIU analysis must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994); Beaty v. Brown, 6 Vet. App. 532, 534 (1994); Moore v. Derwinski, 1 Vet. App. 356, 357 (1991). The phrase “unable to secure and follow a substantially gainful occupation” in § 4.16 (b) has both an economic and a noneconomic component. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component means an occupation earning more than marginal income outside of a protected environment. Id. The noneconomic component concerns whether the veteran is able to “secure or follow” gainful employment. Id. In determining whether a veteran can secure or follow a substantially gainful occupation, the Board should consider the veteran’s history, education, skill, and training; whether he or she “has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required” to work in a substantially gainful occupation, and “whether the veteran has the mental ability to perform the activities required” to work in a substantially gainful occupation. Id. Currently, the Veteran’s unspecified depressive disorder is rated as 50 percent disabling, effective December 6, 2012. The Veteran also has a rating of 10 percent, for status post lumbar sprain with residual pain from April 1, 2000 to March 5, 2013; 20 percent for lumbar spondylosis from December 6, 2012; 10 percent for herpes simplex virus type I, from April 1, 2000; 10 percent each for radiculopathy of the right and left lower extremities, from September 13, 2019; and noncompensable ratings for status post burn to the right upper extremity with scar, effective April 1, 2000 and tinea pedis, effective November 7, 2011. He has a combined rating of 20 percent, from April 1, 2000; 70 percent, from December 6, 2012, 60 percent from March 5, 2013, and 70 percent, from September 13, 2019. At the time of the May 2020 Board decision, the Veteran met the schedular criteria for a TDIU rating, effective September 13, 2019. As discussed in the May 2020 Board decision, unfortunately, the Veteran did not complete a VA Form 21-8940, which was sent to him in October 2019; however, based on the evidence of record in the claims file and resolving all reasonable doubt in his favor, the Board granted entitlement to a TDIU, effective September 13, 2019, the date he met the percentage standards set forth in § 4.16(a). The Board remanded the issue of entitlement to a TDIU, prior to September 13, 2019, noting that due to the Veteran’s failure to complete the requested VA Form 21-8940 in October 2019, the Veteran’s file lacks specific information pertaining to the date of his last employment. The June 2020 Board remand explained that the Veteran’s file contains conflicting information about the dates of his last job. For example, a December 2012 Counseling Record Narrative Repot for Vocational Rehabilitation states the Veteran last worked fulltime from March 1, 2008 to December 16, 2010; however, during the April 2018 Board Hearing, the Veteran testified that he last worked in 2008. The remand specifically requested that the Veteran complete a TDIU claim form and that he provide the dates and information pertaining to his last employment, prior to September 13, 2019. He was also specifically advised that the failure to provide complete information on the TDIU claim form may result in denial of his TDIU claim. The Board directed the RO to refer the issue of entitlement to a TDIU, prior to September 13, 2019, on an extraschedular basis to the Director of Compensation Service if, and only if, the Veteran completed the VA Form 21-8940. The RO sent the Veteran a VA Form 21-8940 in August 2020, as a follow-up to the original TDIU form sent in October 2019. A copy of these forms was also sent to the Veteran’s representative in October 2019 and August 2020. The Veteran failed to respond to the August 2020 request for information. To date, despite multiple opportunities to provide the requested information, the Veteran has not completed and returned a TDIU claim form. The Veteran’s claim was, therefore, not referred to the Director of Compensation Service for extraschedular consideration while in remand status. While failure to complete the form is not fatal to a TDIU claim in and of itself, failure to do so deprives VA of accurate information as to the Veteran’s employment history, educational history and training, and income information necessary to address a claim for TDIU. In the absence of the information requested from the Veteran, the Board must make a decision on the information of record. As a result of recently assigned disability ratings and effective dates by the RO, in addition to the period of time from September 13, 2019, the Veteran now meets the percentage requirements for a TDIU, on a schedular basis, from December 6, 2012 to March 5, 2013. Prior to December 6, 2012 and the period of time from March 5, 2013 to September 13, 2019, the Veteran does not meet the schedular percentage requirements. The Board does not have the authority to assign extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16 (b). Here, an additional remand for referral for entitlement to TDIU on an extraschedular basis has been considered, however, the evidence of record is insufficient to determine that the Veteran was unable to secure or follow substantially gainfully employment, prior to September 13, 2019. As discussed in the May 2020 Board decision, a VA Form 5655 in December 2019 indicated he had not worked in the prior 2 years. A December 2012 Counseling Record Narrative Report for vocational rehabilitation services noted the Veteran completed high school, and some college. He reported he attempted 25 units in college in 2000, but only passed and/or completed 23 units and his grade point average was 1.913. He then attended a different college in 2005 and attempted 32 units but only earned 23 and had a grade point average of 1.313. He then attended a fashion college from 2001 to 2003 and completed 64 credits, reportedly earning an associate degree in 2003; but indicated he did not receive the degree because he was in default of his student loans. At the time of the Vocational Rehabilitation report, the Veteran reported he last worked full-time as an executive chef. He also reported prior jobs consisting of a deli clerk, a cook, and various part-time odd jobs. The December 2012 Counseling Record Narrative Report found that the Veteran had a serious employment handicap and that he struggled below average in all ability sub-categories with the exception of word knowledge, perceptual speed and accuracy, and manual speed and accuracy. It was noted that he was unable to continue to perform his work as a cook, as his service-connected disabilities resulted in limitation in employment, and he had limited transferrable skills or formal education for jobs that are compatible with his disabilities. The vocational counselor stated the Veteran does not have a degree or skill that is compatible with his functional limitations of chronic lower back pain; his only skills are as a cook and it is medically contraindicated to his service-connected disabilities. While the evidence reflects that the Veteran’s disabilities caused occupational impairment, the Board is unable to determine from the current record when the Veteran’s disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. As discussed, a December 2012 Counseling Record Narrative Repot for Vocational Rehabilitation states the Veteran last worked fulltime from March 1, 2008 to December 16, 2010. However, during the April 2018 Board Hearing, the Veteran testified that he last worked in 2008. The Board does not doubt that the Veteran’s service-connected disabilities caused impairing symptomatology, prior to September 2019. Importantly, however, because the Veteran did not provide the requested VA Form 21-8940, the Veteran’s file lacks complete information about the Veteran’s educational history and employment history. There is no specific evidence of when the Veteran became unemployed, and there is limited information regarding his past employment experience and educational background. There is no information provided as to whether the Veteran’s employment was gainful or not for the applicable periods of time. While the RO has tried to obtain additional evidence, neither the Veteran nor his representative has provided it. In sum, the Veteran failed to cooperate with VA’s attempts to develop the claim on multiple occasions, and the record that is before the Board is insufficient to determine that the Veteran was unable to secure or follow substantially gainfully employment as a result of his service-connected disabilities, prior to September 13, 2019. The duty to assist a Veteran in the development of evidence pertinent to a claim is not a “one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the claim for TDIU, prior to September 13, 2019, must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.