Citation Nr: 21004501 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-46 297 DATE: January 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to February 20, 2008, including on an extraschedular basis, is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran’s service-connected disabilities alone prevented him from obtaining or maintaining substantially gainful employment prior to February 20, 2008. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to February 20, 2008, have not been met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to August 1967. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, granting entitlement to a TDIU effective February 20, 2008. The Board previously remanded this matter in September 2018 and October 2020. Entitlement to a TDIU due to service-connected disabilities prior to February 20, 2008, including on an extraschedular basis, is denied. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disabilities. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability). The claimant’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects on occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment, such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must fully consider “the effect of combinations of disability” in its determination, “neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he is entitled to a TDIU prior to February 20, 2008. Before February 20, 2008, the Veteran’s compensable service-connected conditions are evaluated as follows: residuals of low back injury, to include arthritis of the lumbar spine with herniated nuclear pulposus at L-4 with radiculopathy, status post hemilaminectory at L-4-L-5 evaluated as 40 percent disabling effective November 8, 2002; and type II diabetes mellitus evaluated as 20 percent disabling effective March 28, 2001. When combined, the Veteran’s disabilities are evaluated as 20 percent disabling effective March 28, 2001, and 50 percent disabling effective November 8, 2002. Accordingly, prior to February 20, 2008, the criteria for schedular consideration of TDIU are not satisfied. 38 C.F.R. § 4.16(a). However, VA regulations provide that if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of a service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the TDIU claim. In its September 2018 remand, the Board referred this matter to the Director of Compensation and Pension Services. See September 2018 Board Decision. In October 2019, the Director of Compensation Services provided an advisory opinion on the Veteran’s claim for extraschedular TDIU prior to February 20, 2008. The Director found that the evidence showed that the Veteran’s individual unemployability was not evidenced solely due to his diabetes and low back condition and that his neuropathy, which was secondary to his diabetes mellitus, was not evidenced prior to February 2008. Accordingly, the Director of Compensation and Pension Service recommended against the Veteran’s claim. See October 2019 Director of Compensation and Pension Service Advisory Opinions (each labeled VA Memo). On review of the evidence, the Board finds that the evidence does not reflect that the Veteran is solely unemployable due to his service-connected low back condition and diabetes mellitus prior to February 2008. The medical evidence and examinations, which are scant for this time period, do not speak directly as to the whether the Veteran’s service-connected disabilities had any impact on his ability to work. Notably, during a March 2008 spine examination, the Veteran reported that he was independent with occupational activities. Further, in October 2020, after issuance of the Board’s remand, the Agency of Original Jurisdiction (AOJ) sent correspondence to the Veteran to complete and return an attached VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. To date, the Veteran has not completed and/or returned the form. Without a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, which would identify the Veteran’s employment for the period on appeal, the AOJ was not able to request a VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, from the Veteran’s employer(s) from prior to February 2008. Simply put, the Veteran’s employment history could not be verified or considered. Although VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street and it is important that he make efforts to assist the VA in gather evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); Hurd v. West, 13 Vet. App. 449, 452 (2000); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a Veteran wishes help, he cannot passively wait for it. Wood, 1 Vet. App. at 193. If he is to have a reasonable opportunity to prevail on his claims, he must respond with specificity to VA’s requests for additional action. Otherwise, his claims may be denied. Here, the Veteran has asserted entitlement to a TDIU prior to February 20, 2008, but has not participated in any development of the claim. Significantly, the AOJ communicated in the November 2020 SSOC that in October 2020, the Veteran was sent a VA Form 21-8940 which the Veteran had not to date returned. The Veteran still, to date, has not submitted a VA Form 21-8940. Again, as the Veteran has not provided a VA Form 21-8940, his employment history prior to February 2008 could not be verified or considered. Furthermore, the Director of Compensation and Pension Service’s opinion discussing the Veteran’s service-connected disabilities and reviewed all relevant factors. This opinion is thorough, supported by the record, and answered the questions posed. Therefore, the evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the claim of entitlement to TDIU prior to February 20, 2008, and thus the claim must be denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.