Citation Nr: 21064512 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 15-16 035 DATE: October 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence does not show the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to January 1986 and from April 1986 to January 1996. The Veteran presented testimony before the undersigned Veterans Law Judge in March 2018. In July 2018 and February 2021, the Board previously remanded this appeal to the Regional Office for additional development and consideration. All requested actions have been completed and the appeal is once again before the Board. Entitlement to a TDIU In the prior February 2021 Board remand, it was determined that the issue of entitlement to a TDIU had been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (holding that TDIU is not a separate issue that must be raised with specificity; rather, it is a component of an increased rating claim). The Veteran filed his claims for increased ratings for these disabilities on September 4, 2012. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, from September 4, 2012, the Veteran has a combined disability rating of 60 percent, which includes the ratings of 0 percent for each migraine headaches, erectile dysfunction, and left ear hearing loss; 10 percent for the lumbar spine; 10 percent for tinnitus; 20 percent for the right shoulder; and 30 percent for posttraumatic stress disorder (PTSD). From October 24, 2014, the Veteran is in receipt of a combined rating of 70 percent, which includes the ratings of 0 percent for each migraine headache, erectile dysfunction, and left ear hearing loss; 10 percent for the lumbar spine; 10 percent for tinnitus; 20 percent for the right shoulder; 20 percent for left lower extremity radiculopathy; 20 percent for right lower extremity radiculopathy; and 30 percent for PTSD. From August 20, 2019, the Veteran is in receipt of a combined rating of 40 percent, which includes the ratings of 0 percent for each migraine headache, erectile dysfunction, and left ear hearing loss; 10 percent for tinnitus; 20 percent for the right shoulder; 20 percent for left lower extremity radiculopathy; 20 percent for right lower extremity radiculopathy; 30 percent for PTSD; and 40 percent for the lumbar spine disability. Based on the findings above, the Veteran does not meet the schedular requirements for a TDIU prior to October 24, 2014. See 38 C.F.R. § 4.16. However, since October 24, 2014, the Veteran meets the schedular requirements for a TDIU when considering the lumbar spine and bilateral lower extremity radiculopathy ratings, which arise from a common etiology and combine to a 40 percent rating. See 38 C.F.R. § 4.25. The United States Court of Appeals for the Federal Circuit stated that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the findings obtained on examination is not on whether the Veteran is unemployable due to his service-connected disabilities, but rather the functional impairment is caused solely by his service-connected disabilities in concert. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran's: work history, education, skill, and training; the Veteran's physical ability to perform work activities; and the Veteran's mental ability to perform work activities required by the Veteran's occupation. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16 (b). Here, however, the Board finds that neither a referral to the Director of the Compensation Service for extraschedular consideration for the period prior to October 24, 2014, nor a TDIU on a schedular basis since is warranted on the basis that there is no evidence of record to determine whether the Veteran is capable of substantially gainful employment on the economic basis alone. See Ray, supra. As requested in the prior February 2021 Board remand, the RO was directed to provide the Veteran with the required VCAA notice letter regarding a claim for TDIU. Similarly, VA Forms 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) were to be sent to the Veteran to allow VA to ascertain his employment history. See February 2021 Board Decision. However, to date, the Veteran has not returned the requested VA Form 21-8940 or furnish additional work history information to provide clarification on this issue. It is the Veteran's responsibility under 38 U.S.C. § 5107 (a) to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of 38 U.S.C. § 5107 (a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Board notes that the Veteran did report in person to multiple VA examinations scheduled regarding this matter of entitlement to a TDIU which precludes any possibility that he did not receive the forms from VA. Moreover, the evidence of record does not give any indication that the Veteran has ever been unemployed, unemployable, or engaged in marginal employment. Specifically, the August 2019 VA Shoulder and Arms Conditions and August 2019 VA Back Conditions DBQs noted that the Veteran's service-connected right shoulder and lumbar spine disabilities impact his employment as a truck driver in that he is unable to hold a steering wheel for long periods of time. See August 2019 VA Shoulder and Arm Conditions DBQ; see also August 2019 VA Back Conditions. Further, the Veteran's October 2017 private assessment indicates serious functional limitations in a work-like setting as a result of his shoulder and lumbar spine disabilities. However, no further comment was provided. Thus, the Board's ability to evaluate the Veteran's education, training, skill, and work history has been hindered by the Veteran's failure to submit a completed VA Form 21-8940, which was provided to him and requested to be returned, pursuant to the February 2021 Board remand directives. The Board notes that the duty to assist a claimant is not a one-way street and the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 406 (1991); 38 U.S.C. § 5107 (a). However, the Board notes that VA examinations of record do provide some pertinent information. Regarding his service-connected PTSD, a VA examiner in July 2021 noted the Veteran is presently employed with Campbell Soup as a truck driver and able to work with others. See July 2021 VA PTSD Disability Benefits Questionnaire (DBQ). The examiner also noted the Veteran denied experiencing any significant difficulties at work. While the Board acknowledges that the evidence does show that his physical disabilities have some impact on his ability to perform some types of occupational tasks due to pain or limitation of motion, there is no indication that he is unemployable or only marginally employed as a result of these disabilities, especially given that he is currently employed. See September 2013 VA Shoulder Conditions DBQ, September 2013 VA Back Conditions DBQ, September 2014 VA Shoulder Conditions DBQ, September 2014 VA Back Conditions DBQ, June 2021 VA Back Conditions DBQ, June 2021 VA Headache Conditions DBQ, June 2021 Peripheral Nerves Conditions DBQ, June 2021 Shoulder Conditions DBQ, and July 2021 VA Hearing Loss DBQ. Based on the above assessment of the Veteran's physical and mental abilities with the limited consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment. See id. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that Veteran is precluded from all forms of substantially gainful employment and, therefore, is not entitled to referral for extraschedular consideration of a TDIU rating for the period prior to October 24, 2014, or on a schedular basis since. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. Accordingly, the claim is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.