Citation Nr: 21067835 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 14-06 962 DATE: November 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the periods from May 31, 2011, to January 29, 2014, and from March 2, 2015 forward, 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 for the periods from May 31, 2011, to January 29, 2014, and from March 2, 2015 forward 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 July 1964 to June 1967. In October 2018, the Veteran presented testimony during a videoconference hearing before the undersigned Veterans Law Judge of the Board. As stated then, and as stated now, we thank the Veteran for his service. A copy of the transcript is associated with the electronic claims file. In May 2019 and May 2021, the Board remanded this appeal to the Regional Office (RO) for additional development and consideration. The requested actions have been completed and the appeal is once again before the Board. Entitlement to a TDIU 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, for the entire period on appeal, the Veteran has a combined disability rating of at least 90 percent. See May 2021 Rating Decision Codesheet. He has a 100 percent combined rating from November 6, 2013. However, the receipt of a combined 100 percent rating does not render the issue of entitlement to a TDIU moot where the award of a TDIU based on a single disability may result in the Veteran being eligible for SMC. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). In this case, the Veteran is in receipt of SMC pursuant to 38 U.S.C. § 1114 (s) from January 30, 2014 to March 1, 2015. As such, entitlement to a TDIU during this period is moot. However, entitlement to a TDIU is not moot for the periods of May 31, 2011, to January 29, 2014, and from March 2, 2015 forward, as SMC has not been awarded. 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). Based on the evidence discussed below, the Board finds that a TDIU on a schedular basis for the periods from May 31, 2011, to January 29, 2014, and from March 2, 2015 forward is not warranted as there is insufficient evidence of record to determine whether the Veteran is capable of substantially gainful employment on an economic basis alone. See Ray, supra. As was requested in the prior May 2021 Board remand, the RO was directed to ask the Veteran to submit documents verifying his income (i.e., tax returns or W-2 forms) for each year from 2011 to 2020, and to also attempt to obtain the Veteran's income information from the Social Security Administration(SSA) or other appropriate agency from 2011 to the present. See May 2021 Board Decision. In a July 2021 Notification Letter, the RO requested income verification from the Veteran. The RO also received negative responses from the SSA in July 2021 and August 2021. However, to date, the Veteran has not returned any requested information pertaining to his income at any point from 2011 to the present. 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 concerning his numerous claims adjudicated during the appeals period, beginning in May 2011, which precludes any possibility that he did not receive the forms from VA. Thus, the Board's ability to evaluate the economic impact of the Veteran's service connected disabilities as it pertains to his education, training, skill, and work history has been hindered by the Veteran's failure to submit any income verification/ financial statements. 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 other evidence of record, include the multiple VA examination reports, do provide some pertinent information. Here, the Veteran's May 2016 VA Form 21-8940, reported that he last worked in May 2016 as a mail clerk for the Combined Benefits Administration, where he had worked since 1995. He stated he had to stop working as a result of his disabilities. The VA Form 21-8940 indicates that he worked as a private investigator and earned a maximum of $70,000 per year. He also had 2 years of college. Turning to the other evidence of record, the Board notes there are a significant number of VA examinations conducted during the appeals period, beginning in 2011. However, as is relevant to the matter on appeal, the October 2011 VA PTSD DBQ notes the Veteran has been a private investigator for the last 31 years, and employed by the Combined Benefits Administration (CBA) as a mailroom clerk for the last 16 years. There was no indication the Veteran is unable to obtain or maintain substantially gainful employment. The May 2014 VA Knee Conditions DBQ noted there was no impact on ability to work. The April 2016 VA PTSD DBQ noted the Veteran was employed full time for the last 20 years and not experiencing any problems due to his PTSD. However, a June 2016 VA medical opinion did note the Veteran's statement that he is no longer able to perform his job duties due to substantial pain in his left knee following injury and subsequent replacement, pain in his lower left leg, pain in his right hand following surgery with finger release, carpal tunnel in both hands, pain in his hip following hip replacement, and difficulty balancing due to one leg being 3 inches longer than the other. The January 2020 VA PTSD DBQ determined the Veteran was only partially unable to adapt to changes or stress and demands at work and concentrate/ interact with customers and coworkers. Overall, it was concluded that the Veteran's PTSD impacts him but does not render him unemployable. It was specifically noted that the opinion did not take into consideration the totality of all his service-connected medical conditions. See January 2020 VA PTSD DBQ. During the August 2020 VA PTSD DBQ, the VA examiner noted the Veteran stopped working in June 2020, but a date was not specified, nor was the manner of work. Also, in the August 2020 VA Ankle Conditions DBQ, Foot Conditions DBQ, Hip Conditions DBQ, and Knee Conditions DBQ, the VA examiners each noted the Veteran has difficulty with prolonged walking, standing, squatting, lifting, stairs, and rising from a chair. In compliance with the May 2021 Board remand, the Veteran was again scheduled for VA examinations to determine whether his service connected disability impacts his ability to obtain or maintain employment. Specifically, in September 2021 VA Opinions pertaining to the right ankle,left knee, left hip, scars, and right foot/ toe, the examiners notes that the Veteran's physical disabilities may cause limitations but there is no evidence to suggest he cannot maintain sedentary/ limited labor employment. In the September 2021 VA psychiatric opinion concerning unemployability, the VA examiner specifically found that the Veteran evidenced no cognitive limitations regarding ability to work in that overall intellectual capacities are currently in the average range, he is capable of learning a routine, repetitive skill, can function in a job setting without additional behavioral controls, and would likely not create a hazard at the workplace, as there was no history of workplace arrests. 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 VA Examinations, supra. 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, when considering the only information pertaining to his income was in the May 2016 VA Form 21-8940, which reported an annual income of $70,000. 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 a TDIU on a schedular basis for the periods from May 31, 2011, to January 29, 2014, and from March 2, 2015 forward. 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.