Citation Nr: 21063932 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-35 119 DATE: October 18, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence of record does not show that the Veteran's service-connected disabilities render him incapable of securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for an award of a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from November 1951 to August 1955, to include reserve service. In December 2019, the Board determined that the Veteran raised a claim for entitlement to a TDIU as part-and-parcel to his claim for an increased rating for a left wrist disability under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In that decision, the Board awarded a 40 percent rating for a left wrist disability and remanded the issue for entitlement to a TDIU. The Veteran contends that his service-connected disabilities render him unemployable and, therefore, is entitled to a TDIU. The Board initially notes that although he was scheduled for a hearing before the Board on this matter, the Veteran specifically withdrew that request in September 2021. As noted in a September 2021 Report of General Information, the Veteran also expressed a desire to withdraw this appeal. Because no written withdrawal was submitted, the Board sent the Veteran a letter asking for clarification as to his intent. The Veteran's representative responded with a brief on the merits, and a statement indicating that the Veteran wished for the Board to decide his appeal without oral testimony. Accordingly, the Board will proceed with adjudication. Total disability ratings for compensation based on individual unemployability 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). For the purpose of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology of single accident or affecting both upper extremities or both lower extremities or a single bodily system are considered as one, collective or aggregate disability. 38 C.F.R. § 4.16(a). Service connection is currently in effect for a left wrist disability (rated as 40-percent disabling) and a left thumb disability (rated as 10-percent disabling). As such, the Veteran does not meet the schedular criteria for a TDIU. That stated, the Board has considered whether extraschedular referral is warranted under the provisions of 38 C.F.R. § 4.16(b). Because the evidence does not demonstrate the Veteran's service-connected disabilities, in and of themselves, prevent the Veteran from securing or following gainful employment, the Board finds that referral is not warranted and the claim must be denied. In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Unemployability associated with advancing age or intercurrent or nonservice-connected disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Here, in November 2015, March 2016, and November 2017 letters, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, including submitting a completed application for this benefit (VA Form 21-8940) and was advised as to what the evidence must show for TDIU. In a December 2019 remand, the Board noted that the record showed that the Veteran was asked to complete a VA Form 21-8940 in connection with this claim, but failed to return the form. The Veteran was notified that the information contained in that form was vital to adjudicating a claim for TDIU as the determination is made within the context of the Veteran's particular educational and occupational history. Moreover, it left the Board without sufficient information as to whether the Veteran was engaged in some form of gainful employment at any point during appeal period. On remand, the Veteran was provided one additional opportunity to provide the relevant employment and income information. To this end, the AOJ sent him a letter in January 2020 advising him again that he may be entitled to compensation at the 100 percent rate if he was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. He was advised to complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, as well as the VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, completed by each of the employers identified on VA Form 21-8940. To date, the Veteran has not completed and returned a VA Form 21-8940 (TDIU application) or VA Form 21-4192, or otherwise provided specific information needed to make an informed decision in this appeal, to include specific dates his disability had affected his full-time employment, the date he was last employed full-time, the date he became too disabled to work, time loss from work due to disability, his annual earned income to include in the past 12 months, as well as any schooling and other training. Although multiple attempts at obtain this information have been made, the Veteran has not provided the necessary information to make an informed determination as to whether he is unemployable for purposes of receiving this benefit. Although the Veteran noted in recent correspondence dated in September 2021 he is no longer working, more information was and is requiredas the Veteran has been so advisedin order to award the benefit sought. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence). The Board observes there is medical evidence of record suggesting some occupational impairment due to the Veteran's service-connected wrist and thumb disabilities during the period under review, but there is not enough information to determine whether such impairment, in and of itself, warrants the award of a TDIU. Indeed, in June 2014 correspondence, the Veteran indicated that he could not bend or use his hand for any type of work since 2011. In his July 2014 notice of disagreement, he reported that he gave up driving a school bus around 2011/2012. During his February 2015 VA mental disorders examination, he reported that he was a full-time bus driver until 2012 and a part-time school van driver from 2012-2015, until he retired a week prior. In August 2015 correspondence, he indicated that he was seeking a loss in wages due to changing from driving a school bus to driving a school van related to his hand injury. On his June 2015 VA wrist condition examination, he claimed that he gave up his school bus driver position, as he was unable to evacuate the children from the bus. December 2015 correspondence from the Veteran's employer showed that there was approximately a $2.00 difference in his hourly rate from when he was a school bus driver versus a school van driver and included his total gross salary over a period of weeks ranging from 16 weeks to 37 weeks. In correspondence dated in February 2016, Dr. D.J.M. noted that due to the Veteran's left wrist disability, he was unable to lift greater than 10 pounds and was unable to unload the school bus. VA treatment records dated in March 2016 showed that the Veteran completed high school was a retired industrial engineer and currently worked part-time as a school van driver. On September 2017 VA wrist conditions examination, he reported that flare-sups occurred with overuse of the left hand or when lifting more than 10 pounds. As a result, he was forced to give up driving a school bus and now drove a school van, which was a difference of approximately $200 a month. In February 2019 correspondence, he claimed that he took a lesser paying job as a school van driver due to his service-connected left wrist disability, which cost him a $170 a month loss of income. As noted above, in a September 2021 statement, the Veteran simply stated he was no longer working. The Board has considered the Veteran's contentions as well as the medical records; however, as noted, the record does not contain sufficient evidence to how much work he performed during the appeal period, hours worked, annual income, or whether there is occupational impairment above and beyond what is already compensated by the schedular ratings for his service-connected disabilities. The Court of Appeals for Veterans Claims (the Court) has made clear that there are economic and noneconomic factors to consider in adjudicating a TDIU claim (see Ray v. Wilkie, 31 Vet. App. 58 (2019)), and that mere inability to obtain employment, or difficulty in doing that, is not tantamount to concluding a claimant is unemployable (see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993)). Here, although the Veteran and his representative have been asked to provide the information needed for informed adjudication, the Veteran has not provided it. Based on the existing evidence of record, the Board is unable to find that the Veteran cannot secure or follow a substantially gainful occupation as a result of his service-connected disabilities. (Continued on Next Page) Accordingly, referral of the Veteran's TDIU claim for extraschedular consideration is not warranted, and the claim for a TDIU must be denied. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Crohe, 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.