Citation Nr: 21065811 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 10-36 901 DATE: October 27, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU), to include on an extraschedular basis is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran is unable to secure and follow substantially gainful occupation by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a total disability based on individual unemployability, to include on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Navy from June 1984 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim has a long procedural history before the Board. Most recently, the claim was remanded in May 2021 to provide the Veteran with an opportunity to submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In June 2021, the RO mailed the Veteran a VA Form 21-8940 for completion within 30 days. The letter was not returned as undeliverable, and the Veteran failed to provide a completed VA Form 21-8940. The Veteran is reminded that the "duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the absence of the Veteran's cooperation in obtaining pertinent evidence, VA has no further obligation to develop the record on appeal. Furthermore, in the May 2021 Board remand, the Veteran was informed that the failure to return a completed VA Form 21-8940 could constitute abandonment of the TDIU claim. See 38 C.F.R. § 3.158; see also Jernigan v. Shinseki, 25 Vet. App. 220, 229-230 (2012). Nevertheless, the Board will proceed with adjudication of the Veteran's claim based on the available evidence of record. Entitlement to a total disability based on individual unemployability, to include on an extraschedular basis The Veteran contends that he is unemployable due to his service-connected disabilities, to include his low back disability. The Board notes that the Veteran's claim for a TDIU has been pending since September 17, 2008 when he filed a claim for an increased rating for his service-connected low back disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (finding that a claim for a TDIU is part of an increased rating claim when such a claim is raised by the record). Although the claim for an increased rating for the low back was adjudicated and finalized by a December 2020 Board decision, the claim for a TDIU was bifurcated from the increased rating claim and is therefore still pending. See Harper v. Wilkie, 30 Vet. App. 356, 360-362 (2018) (entitlement to a TDIU remains pending unless the benefit is granted in full for the entire appeal period). A total disability rating may be assigned when the schedular rating is less than 100 percent where 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims found that 38 C.F.R. § 4.16 (b) has two components: one economic and one non-economic. 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. From September 17, 2008, the Veteran had established service connection for mechanical low back pain with traumatic arthritis rated as 20 percent disabling. Therefore, the Veteran does not meet the schedular rating criteria for a TDIU. 38 C.F.R. § 4.16 (a). Subsequently, beginning April 30, 2019, the Veteran established service connection for mechanical low back pain with traumatic arthritis rated as 20 percent disabling, radiculopathy right lower extremity (sciatic nerve) rated as 20 percent disabling, radiculopathy right lower extremity (femoral nerve) rated as 20 percent disabling, radiculopathy of left lower extremity (sciatic nerve) rated as 10 percent disabling, radiculopathy of left lower extremity (femoral nerve) rated as 10 percent disabling; and left palm scar from electrocution, right palm scar from electrocution, and right thumb scar from electrocution each rated as noncompensable. The Veteran's combined rating for compensation purposes is 60 percent. 38 C.F.R. §§ 4.25, 4.26. As the Veteran's mechanical low back pain and radiculopathy disabilities result from common etiology, the Board finds that the Veteran meets the schedular rating criteria for a TDIU effective April 30, 2019. 38 C.F.R. § 4.16 (a)(2). Although the Veteran did not meet the schedular rating criteria prior to April 30, 2019, all Veterans who are unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). However, in cases where the Veteran fails to meet the percentage standards, the Veteran's claim for a TDIU should be submitted to the Director of Compensation Services for extraschedular consideration. Id. Here, in a January 2021 Advisory Opinion, the Director of Compensation Services found that the preponderance of the evidence does not support an extraschedular TDIU entitlement. The opinion noted that prior to April 30, 2019, the Veteran had some impairment with his service-connected back condition, but that condition alone would not prevent the Veteran from securing or following all forms of substantially gainful employment, including in sedentary work environments. While the Board is not bound by the Director's opinion, the Board agrees with the Director's conclusions and finds that prior to April 30, 2019, the Veteran's service-connected mechanical low back pain disability did not preclude the Veteran from securing or following substantially gainful occupation. See 38 U.S.C. § 511 (a); see also Wages v. McDonald, 27 Vet. App. 233 (2015). The Veteran's VA Vocational Rehabilitation records include an August 2009 Counseling Record Narrative Report. The Veteran indicated that he last worked in April 2008 and has since been looking for work. In April 2008, he was laid off from his as a construction field manager where he earned $4,500 per month. Prior to his job as a construction field manager, he worked in construction building residential and luxury homes for about 14 years. In the Navy, he worked as an Aviation Electronic Technician and completed training in basic electricity and aviation electronics. The Veteran completed 49 credits towards a college diploma. During the counseling session, the Veteran stated that he has difficulty bending, kneeling, stooping, and squatting due to his service-connected low back condition. He also stated that he has difficulty lifting objects heavier than 30 pounds and walking, standing, or sitting for longer than 2 hours at a time without a break. The Vocational Rehabilitation counselor determined that the Veteran has an employment handicap, but the nature and severity of his disability has not resulted in a history of prolonged unemployment, dependence on government income, persistent difficulty adjusting in society, or any significant expectation for negative employer attitude. Therefore, the Veteran was determined to not have a serious employment handicap and was denied services. While the Board is not bound by Vocational Rehabilitation decisions, the Board finds the counselor's decision probative. The Veteran provided records from Social Security Administration (SSA) in June 2013 showing that he was determined to be disabled due to adjustment disorder, memory loss, chronic arthritis of the lumbar spine, lungs, hearing, pain in the legs, neck and knees beginning March 16, 2009. However, the Board is not bound by SSA determinations and notes that the criteria for SSA disability and a TDIU vary greatly. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). It is also significant to note that the Veteran was awarded SSA disability due to the combined effects of the Veteran's disabilities, to include nonservice-connected disabilities, rather than solely due to his low back condition. The Veteran was afforded a VA examination in March 2009 for his low back condition. He stated that it is painful to go from a sitting to a standing position, and it is painful to walk, stand, or sit for any length of time. He further stated that he can no longer work in the yard and has limited ability to do inside chores other than vacuuming. He also noted that he has been unemployed for the past 1 12 to 2 years but is actively seeking employment. Range of motion testing showed that the Veteran is limited to 60 degrees at forward flexion with pain on motion. The examiner opined that the Veteran's back condition has significant effects on employment due to decreased mobility, problems with lifting and carrying, and decreased strength. An April 2009 physical therapy consult included in the Veteran's treatment record contain a statement from the Veteran that he has lost many jobs due to his back and hip pain. However, the Board notes that this statement is in direct contradiction to his August 2009 Vocational Rehabilitation counseling session where he reported that he was laid off from his previous job. Consequently, the Board affords limited probative weight to the Veteran's statement. Objective range of motion testing during the physical therapy consult revealed forward flexion limited to 45 degrees. During a January 2010 examination for SSA disability, the examiner noted that the Veteran walks with a cane. His range of motion of the lumbar spine was limited to 30 degrees for forward flexion and he could not straighten up. The examiner noted marked limitation for bending to the floor and lifting from the floor. A review of the Veteran's VA treatment records indicates that he remained unemployed until at least May 2014. VA treatment records in January 2017 indicate that the Veteran was again working as a construction manager. It was noted that that Veteran used to walk about 10,000 steps per day until 12 weeks prior due to complaints related to a claudication condition and not his service-connected low back condition. In April 2018 the Veteran was afforded a VA examination for his back. The Veteran reported daily back pain and denied functional loss or impairment due to his back. Range of motion testing revealed forward flexion limited to 90 degrees without objective evidence of pain. The examiner opined that there is nothing regarding the Veteran's lumbar spine condition that interferes with any employment, either physical or sedentary citing the Veteran's full range of motion and absence of pain upon examination. VA treatment records from November 2017 to February 2019 indicate that the Veteran was working full-time in construction earning an adequate income. A November 2017 physical therapy consult indicated that the Veteran worked a "desk job." The Veteran was afforded another VA examination for his low back in April 2019. He reported daily low back pain and uses a cane and a walker when his back pain gets severe. Range of motion testing revealed forward flexion limited to 60 degrees without additional loss of function after repeated use over time. The examination also revealed signs and symptoms of radiculopathy including constant pain, intermittent pain, and paresthesias and/or dysesthesias affecting the femoral and sciatic nerves. The examiner opined that the Veteran's low back condition impacts his or her ability to work as he has limitations with walking, standing, sitting, bending, and lifting more than 5 pounds. In August 2020, the Veteran was again afforded a VA examination for his low back disability. The Veteran reported pain with standing, walking, and sitting. His forward flexion was limited to 40 degrees during range of motion testing with no additional loss of function during flare-ups or after repeated use over time. There were no signs or symptoms of radiculopathy. The examiner opined that the back condition impacts the Veteran's ability to work as he cannot sit, stand, or walk for longer than 10 minutes, he cannot lift more than 25 pounds, and he cannot perform repetitive bending for more than a few minutes. A September 2020 VA treatment note indicated that the Veteran is now retired. After careful consideration of the evidence, the Board concludes that the preponderance of the evidence does not support a finding that the Veteran's service-connected disabilities render him unemployable prior to April 30, 2019 or thereafter. The evidence does not indicate that the Veteran is mentally or physically precluded from performing the activities necessary as a construction manager. The evidence shows that the Veteran was laid off from his job in April 2008, and was actively looking for work in the same field despite his low back disability. He obtained and maintained employment in the same field of construction from about January 2017 to September 2020. Although the March 2009, April 2019, and August 2020 VA examiner's opined that the Veteran's back condition impacts his ability to perform occupational tasks, the evidence shows that in January 2017, the Veteran walked 10,000 steps daily for his job as a construction manager without any back complaints. Additionally, during a November 2017 physical therapy consult, the Veteran indicated that he works a "desk job," and did not suggest any limitations due to his back condition. The Board also notes that the Veteran appeared to earn more than marginal income while employed as a construction manager. In August 2009, the Veteran reported earning $4,500 per month prior to being laid off, and VA treatment records from November 2017 to February 2019 reveal that the Veteran was working full-time and earning an "adequate income." The Board acknowledges that the Veteran was in receipt of SSA disability from March 2009. However, as previously noted, the Board is not bound by SSA decisions and the Veteran's disability payment was due to his service-connected low back disability and his nonservice-connected disabilities. (Emphasis added). Additionally, the April 2018 VA examiner opined that the Veteran's lumbar spine condition does not interfere with his employment in a physical or sedentary setting as the Veteran had full range of motion at the time of examination. It is also important to note that the Veteran's lumbar spine range of motion throughout the appeal period has warranted only a 20 percent evaluation for forward flexion greater than 30 degrees but not rather than 60 degrees. The Board finds that this fact is evident of a finding that the Veteran's low back condition has not substantially interfered with his ability to obtain and maintain gainful employment. When the Veteran has found employment in his field of skill and training, he has maintained the employment without incident or complaint related to his service-connected low back condition and/or residual lower extremity radiculopathy. In sum, the Board finds that the preponderance of the evidence does not support a finding that the Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation. Furthermore, the Veteran failed to provide the specific information necessary, the VA Form 21-8940, to support his claim for benefits. See 38 C.F.R. § 5107 (a). Consequently, the Board finds that the Veteran has essentially abandoned his claim for a TDIU. 38 C.F.R. § 3.158 (a). Accordingly, entitlement to a TDIU, to include on an extraschedular basis, is denied. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 4.3. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.