Citation Nr: 21066482 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-40 289A DATE: November 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The probative evidence of record does not show the Veteran was unable to obtain gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army on active duty from September 1978 to August 1984. The issue comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously before the Board in July 2018. The Board remanded for further development. The Veteran testified at a hearing before Veterans Law Judge (VLJ) Kroes in March 2018. A transcript of the hearing has been included with the record. VLJ Kroes has since retired from the Board. In April 2021, the Board sent the Veteran a letter informing him of the reassignment of his appeal to another VLJ, and that an optional new Board hearing was available upon request. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Additionally, the letter informed the Veteran that if he did not respond within 30 days from the date of the letter, the Board will assume the Veteran did not want another hearing and proceed accordingly. The record is absent of the Veteran's response regarding another hearing on this matter. The Board will consider the case on the evidence of record. In December 2020, the Board remanded to aid in developing the Veteran's claim for TDIU, to include obtaining outstanding treatment and employment records. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to cooperate in the development of his claim. See Wood v. Derwinski, 1 Vet. App. 190 (1991). In January 2021, the RO mailed the Veteran a VCAA letter informing the Veteran of what the evidence must show for a claim of TDIU. Additionally, the RO provided VA Form 21-8940 and requested updated employment information during the appeal period needed to develop the Veteran's claim for TDIU. Since that date, VA has not received a completed VA Form 21-8940 from the Veteran. There has been substantial compliance with the remand instructions, and the issue is again before the Board. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board may proceed forward with adjudicating the Veteran's claim with the available evidence of record. Entitlement to TDIU A total disability rating based on individual unemployability 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 as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). The Veteran does not meet the criteria for consideration of entitlement to TDIU on a schedular basis. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has a 50 percent rating for his service-connected major depressive disorder since July 1, 2010, and a 10 percent for left foot condition, 10 percent for tinnitus, and a noncompensable rating for bilateral hearing loss for the entire appeal period. Thus, he does not meet the criteria for consideration for entitlement to a TDIU on a schedular basis, and a TDIU rating is not assignable under 38 C.F.R. § 4.16(a). Nevertheless, an extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). 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, Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. (2001); Fanning v. Brown, 4 Vet. App. 225 (1993). Therefore, an extraschedular rating may be considered if the evidence of record shows the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b). Here, the evidence of record is against such a finding. The evidence of record shows that the Veteran earned a bachelor's degree in mechanical engineering after discharge from service. The record contains the Veteran's Vocational Assessment Profile from April 2013, completed as part of the VA Veteran Readiness and Employment (VR&E) (formerly known as Vocational Rehabilitation and Employment) program. The assessment profile noted the Veteran was seeking full-time employment. The Veteran included that work at a desk job was preferred. The Veteran noted some physical limitations in his ankles, shoulders, elbows, and back. The Veteran also noted his depression as a mental health limitation to employment; however, the Veteran noted that he was on medication and stated that all was good at that present time. The record contains the Veteran's employment information, submitted for the VR&E program in March 2016, noting the Veteran worked full time as a landscaper and designer beginning in August 2014. The Veteran participated in the VR&E program from October 2012 to April 2016. The VA proposal to discontinue the program from April 2016 listed the Veteran's serious employment handicap as his mental health condition which was not being actively treated. The Veteran completed some technical training and certification in the HVAC field, while enrolled in the VA Vocational VR&E program. The Veteran's VA rehabilitation counselor stated that the Veteran was able and qualified for employment in the HVAC industry, but noted the Veteran did not elect to seek employment in that field. Further, the Veteran was reported as working full time as a landscaper for his son's landscaping business. The record also contains the Veteran's private physical therapy note from September 2018. The treatment record noted the Veteran's work status was "full time/full duty" as a security officer. The treatment record stated the Veteran's occupational activities were standing and walking most of the shift. The Veteran testified before the Board in March 2018 that his anger management issues, associated with his service-connected psychiatric disorder, led him to leave his previous employment, where he worked as a mechanical engineer. Additionally, the Veteran testified that his tinnitus and hearing loss affected his ability to work, as it was difficult for the Veteran to wear hearing aids and ear protection in his line of work. The Veteran testified that his last job was as a mechanic in January 2011. In September 2020, the Veteran underwent a VA psychiatric examination. The VA examiner provided that the Veteran's major depressive disorder manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The VA examiner noted the Veteran reported mood symptoms that often impacted his ability to focus and sustain attention to his tasks. The VA examination reported the Veteran was easily frustrated and irritable, which mildly impacted his interpersonal functioning. The RO provided the Veteran a VA examination addressing the Veteran's service-connected foot disability in February 2021. The Veteran reported he was unable to move his foot and ankle at the joint. The Veteran reported severe daily pain of the left foot. He noted he could not stand, walk, or run. Upon examination, the VA examiner noted the Veteran's foot condition did not impact his ability to perform occupational tasks. The record contains the Veteran's private psychological evaluation report from May 2021. The private psychologist noted the Veteran's diagnosis of moderate recurrent major depressive disorder, with episodes of severe depression. The private psychologist reported the Veteran's mental health condition resulted in occupational and social impairment with deficiencies in most areas, such as: work, school, family relations, judgment, thinking, or mood. The Veteran noted that he was unemployed at the time of the examination. The Veteran reported that he had been unable to secure and maintain gainful, full-time employment since 2008. The private evaluation noted that an injury and chronic pain resulted in the Veteran being unable to work at that time. The private psychologist noted the Veteran changed his career path in the past due to his mental health issues. The private psychologist opined that the Veteran's major depressive disorder would likely cause considerable occupational impairment if the Veteran attempted to work again. The private psychologist noted the Veteran experienced periods of low motivation and drive; and reported the Veteran's symptoms of irritability and lack of interpersonal connection would be challenging for him to function in an occupational setting with other people. Finally, the private psychologist reported that the Veteran's troubles with concentration and short-term memory impairment could result in difficulty completing tasks if the Veteran attempted to work again. In light of the above, the Board finds the evidence of record does not demonstrate the Veteran was unemployable due to service-connected disabilities during the period on appeal. The evidence of record shows that, while the Veteran has experienced periods of unemployment during the pendency of his appeal, in which he was unable to secure full-time employment, the Veteran's service-connected disabilities did not render him totally unemployable. The record, including the Veteran's VR&E employment documentation, is not consistent with the Veteran's March 2018 testimony, that he last worked in 2011, or the Veteran's May 2021 private mental health evaluation, in which the Veteran stated that he had been unable to secure and maintain gainful, full-time employment since 2008. The record demonstrates the Veteran was able to secure and maintain employment during the period on appeal. As the evidence of record demonstrates that the Veteran was employed in some fashion during the pendency of the Veteran's TDIU claim, the Board must consider whether the Veteran was barred from substantial employment or only had marginal employment due to his service-connected disabilities. Here, the record provides no evidence that the Veteran was barred from gainful employment due to his service-connected disabilities. The available evidence of record shows the Veteran was able to secure full-time positions as a security officer, landscaper, and mechanic. The Board recognizes the Veteran was employed full-time by his son's landscaping business. However, there is no evidence showing the Veteran was employed in a protected environment or sheltered workshop to support a determination of marginal employment on a facts-found basis. Moreover, the record does not contain evidence sufficient to make any determination regarding whether the Veteran was unemployed due to his service-connected disabilities. The Board acknowledges the assessment, provided in the Veteran's May 2021 private psychological evaluation, that the Veteran's service-connected major depressive disorder would likely cause considerable occupational impairment. However, the private psychologist did not find the Veteran's depressive disorder resulted in total occupational impairment. While the Board sympathizes with the Veteran's asserted difficulties with employment, there is no evidence of record to warrant referral for extra-schedular consideration of a total disability rating based on his service-connected depressive disorder, left foot condition, tinnitus, and hearing loss. And in the absence of any evidence that the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment during the period on appeal, referral for extra-schedular consideration is not appropriate. 38 C.F.R. § 4.16(b). Thus, the Board finds that the available evidence of record fails to establish that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation. Accordingly, the benefit-of-the-doubt rule does not apply, and entitlement to the award of a TDIU is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.