Citation Nr: 21062229 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-28 347A DATE: October 6, 2021 ORDER Entitlement to total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1966 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This issue was remanded by a July 2018 Board decision. The Board instructed the RO to obtain an opinion as to whether the Veteran was unemployable due to the combined effects of his service-connected disabilities, including an opinion as to his unemployability since August 2008 and prior to July 27, 2016. Such opinions were obtained in October 2019, November 2020 and February 2021. In June 2020, VA requested that the Veteran submit a new Application for Increased Compensation Based on Unemployability (VA Form 21-8940) for all his employment, as the reporting of his employment history conflicted with the evidence of record. A follow-up letter was also sent in November 2020 and the March 2021 supplemental statement of the case also indicated that the Veteran failed to complete the requested VA Form 21-8940. Furthermore, in February 2021, an extraschedular review of the Veteran's unemployability prior to July 27, 2016 was conducted by the Executive Director of the Compensation Service. The Executive Director of the Compensation Service concluded that an extraschedular rating for a TDIU prior to July 27, 2016 was not warranted. The Board therefore finds that there has been substantial compliance with its previous remand. In an August 2018 rating decision, the rating for the Veteran's major neurocognitive disorder was increased from 70 percent disabling to 100 percent disabling effective June 13, 2018. Therefore, the Veteran's TDIU issue becomes moot beginning on June 13, 2018. Entitlement to a TDIU is denied. The Veteran contends that his service-connected disabilities have impacted his ability to maintain employment in any field prior to June 13, 2018, specifically emphasizing that he became unemployable since 2014. See September 2021 Appellate Brief. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An assessment of TDIU entitlement based on the combined effects of all service-connected disabilities should address all such disabilities. Therefore, the cumulative effects (functional impairment) of all service-connected disabilities should be addressed in determining if the service-connected disabilities prevent substantially gainful employment. Floore, 26 Vet. App. 376; accord Geib v. Shinseki, 733 F.3d 1350, 1353-54 (Fed. Cir. 2013). In making such a determination, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record and every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad, 1 Vet. App. at 169. The Veteran's credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During the appeal period, the Veteran has been service connected for the following disabilities: major neurocognitive disorder, rated as 70 percent disabling from July 7, 2017; coronary artery disease status post coronary artery bypass graft and stenting, rated as 60 percent from May 13, 2011; Parkinson's disease, rated as 30 percent disabling from July 27, 2016 to June 13, 2018; weakness of right lower extremity and brady kinesia secondary to Parkinson's, rated as 20 percent disabling from June 13, 2018; scars, residual, coronary artery bypass graft associated with coronary artery disease, rated as noncompensable from June 30, 2010; erectile dysfunction associated with major neurocognitive disorder due to another medical condition associated with coronary artery disease, rated as noncompensable from July 10, 2013; constipation as secondary to Parkinson's, rated as noncompensable from June 13, 2018; hyophonic voice as secondary to Parkinson's, rated as noncompensable from June 13, 2018. The combined rating is 80 percent from July 27, 2016; 90 percent from July 07, 2017 and 100 percent from June 13, 2018. Therefore, the criteria for consideration of a TDIU pursuant to 38 C.F.R. § 4.16(a) has been met from July 27, 2016. As previously mentioned, the Veteran was sent a letter in June and again in November 2020 requesting that he complete a new VA Form 21-8940 as well as a 21-4192, Request for Employment Information in Connection for Disability Benefit, for each employer listed on the VA Form 21-8940. The November 2020 letter also indicated that the VA Form 21-8940 was necessary to clarify the Veteran's work history as the June 2018 VA Form 21-8940 indicates that the Veteran last worked in 2008 as a self-employed roofer and that other evidence in the file indicates that he worked after 2008, and as recently as 2015 or 2016, as a self-employed insurance contractor for an insurance company. The Board also notes that the Veteran reported that he was still semi-active in the insurance industry in a February 2014 VA examination but further detail was not provided. The Veteran has not provided a new VA Form 21-8940 or otherwise clarified his employment history. The "duty to assist is not always a one-way street," and a Veteran is obliged to cooperate in the development of the pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board will decide this matter based on the evidence of record. Turning to the functional impact of his disabilities, in an October 2016 private treatment note, the examiner noted that the Veteran has a history of coronary artery disease, transient global amnesia, and dizziness and should not be driving, or going up on roofs in his job. The examiner emphasized that the Veteran should not be working with his condition. In a December 2016 private treatment note, the Veteran reported working for 40 years in the insurance industry and continuing to work four hours a week as a consultant. He denied occupational functioning problems. He reported not having a retirement date set yet. The Veteran's wife submitted a statement about her husband's functioning in June 2017. She stated that the Veteran had dizziness and could no longer drive because of his dizziness. He also developed amnesia because of his stroke, which causes him to blank out which also prevents him from driving, and she noted that he can no longer put his thoughts down on paper in a consistent readable manner. In a July 2017 VA examination for central nervous system and neuromuscular diseases, the examiner opined that the Veteran's central nervous system condition is at least as likely as not sufficient to impact his work because it affects his gait, ambulation, and balance as well as his memory. In a July 2017 psychiatric VA examination, the examiner noted the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that after the military, he worked for Trinity Insurance for 12 to 15 years, for consulting companies, and as an insurance contractor. He was last self-employed as an insurance contractor one to two years ago. The Veteran submitted a VA Form 21-8940 in June 2018 in which he reported that his cerebral condition, coronary artery disease and Parkinson's disease were the service-connected disabilities that hindered him from securing substantially gainful employment. The Veteran noted being self-employed until 2008 making $6,000.00 a month. In a Social Security Administration (SSA) earnings statement submitted in May 2021, it was noted that the Veteran received SSA earnings in 2016 of $1,385.00 and his earnings in the years between 2005 and 2015 as well as the year of 2017, 2018 and 2019 were zero. Based on the foregoing, and in consideration of the pertinent clinical findings, including the Veteran's reports that his barriers to employment included his service-connected disabilities, the Board concludes that the functional impact of the Veteran's service-connected disabilities on his employability does not warrant a TDIU. The Veteran's reports regarding his employment history are inconsistent in the record. In his June 2018 VA-21-8940, the Veteran reported he was self-employed until 2008 while the Veteran's representative reported the Veteran was employed until 2014. However, in December 2016, the Veteran reported that he was working as a consultant four hours a week and did not know when he would retire. Also, in a July 2017 VA examination it was noted that the Veteran was last self-employed as an insurance contractor one to two years prior to the examination. In the SSA earnings statement, there were reports of earnings in 2016 and the source of those earnings is not clear. The Veteran's employment status is inconsistent in the current record. Although the October 2016 and July 2017 examiners noted that the Veteran's service-connected abilities hindered his ability to work, it appears that the Veteran was able to do some work during the appeal period. Significantly, the Veteran has not clarified his employment history despite VA's requests that he do so. The Board has carefully considered the Veteran's statements regarding the effects of his service-connected disabilities on his employability. Although the Veteran may have experienced some limitations as a result of his service-connected disabilities, and these have been found to cause some impact on his daily functioning and earning capacity, that impact was considered in the scheduler ratings currently assigned. Simply stated, if he did not have impairment with his service-connected disabilities, there would be no basis for combined rating for such. The fact that he was having difficulties does not provide a basis to grant TDIU. Accordingly, the Board concludes that a TDIU is not warranted for the appeal period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, Associate 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.