Citation Nr: 21068813 Decision Date: 11/13/21 Archive Date: 11/13/21 DOCKET NO. 20-10 040 DATE: November 13, 2021 ORDER Total disability due to individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from obtaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.2, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Marine Corps from July 1964 to March 1967. His decorations include a Purple Heart and Vietnam Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Board remanded this matter for further development. The Board notes that in its January 2021 remand, it directed the Veteran to complete a VA Form 21-8940 to develop his claim for a TDIU. In January 2021, the Veteran was provided a VA Form 21-8940 and informed that if he did not complete and return it within 30 days a decision would be made on his claim. The Veteran did not complete and return a VA Form 21-8940. The Board though finds that the claims file contains sufficient evidence on the Veteran's employment history and will proceed to adjudicate the merits of his claim. A TDIU 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 because of a single service-connected disability ratable at 60 percent or more, or because 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). The Veteran is service connected for shell fragment wound, left posterior thigh with neuropathy of the left posterior cutaneous nerve with retained foreign bodies, involving muscle group XIII; residuals of shrapnel wound, left ankle, muscle group XII; lumbosacral strain with degenerative changes; radiculopathy of the left lower extremity; left ankle, residuals of shrapnel wound; residual of shrapnel wound, right foot; scar, left thigh; radiculopathy of the right lower extremity; scar, lower left ankle; scar, right foot; and scar, left thigh. The Veteran's combined rating is 90 percent, and he has a disability rated at 40 percent. As such, he meets the schedular criteria for a TDIU. The Central inquiry in determining whether a TDIU is warranted is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.16, 4.19. Upon review of all evidence of record, the Board finds that the most probative evidence of record demonstrates that the Veteran's service-connected disabilities do not preclude him from maintaining and obtaining substantially gainful employment. The Veteran has undergone multiple VA examinations for his service-connected disabilities throughout the appeal period. In October 2016, the Veteran underwent a VA examination for his back disability. At the examination the Veteran reported that he had problems with balance after sitting or lying down and becoming ambulatory. The Veteran also reported that he could not walk any further than 100 feet without resting. The examiner found the Veteran's back disability did not impact his ability to work. The Veteran also underwent a muscle injury examination in October 2016. On examination it was found that his muscle injury affects muscle substance or function by causing the Veteran's muscles to swell and harden abnormally in contraction. The examiner also noted the Veteran to have consistent loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination in his left side muscle group XIII. It was noted that the Veteran constantly uses a cane. The examiner concluded the examination by finding that the Veteran's muscle injury disability did not impact his ability to work. In December 2019 the Veteran underwent a VA examination for his left ankle muscle injury disability. The Veteran was found to have consistent lowered threshold of fatigue and fatigue-pain. The examiner noted that the Veteran's left ankle muscle injury disability impacted his ability to work in that the Veteran's foot and ankle was aggravated on stairs, uneven ground, and weight bearing over thirty minutes. The Veteran also underwent a foot examination in December 2019. His symptoms were described as mild daily right midfoot/forefoot pain with weight bearing that can worsen after five minutes or more. The Veteran reported that he could not weight bear over thirty minutes at a time and after thirty minutes of weight bearing the pain is so severe that the Veteran has to sit down. The Veteran also reported difficulty on uneven surfaces. The examiner found the Veteran's foot disability to impact his ability to work as the Veteran has to take a twenty-minute non-weightbearing break for every thirty minutes of weightbearing, and that uneven ground and using stairs aggravates foot pain as well. VA treatment records document the extent of the Veteran's disabilities. In March 2016, the Veteran reported that he had fallen multiple times outdoors, with five to six falls in the last month. It is noted that the Veteran continued to endorse a mechanical pain in both feet when he stands too long or walk on concrete. Foot pain is consistently reported by the Veteran when seeking treatment. Treatment records also provide information on the Veteran's employment history and education level. In November 2011 it is noted that the Veteran worked in academia developing curriculum. In January 2012, he was still working as a university administrator, a job he had held for more than twenty years, while also working part-time as a subsistence farmer. In June 2012 it was recorded that the Veteran was unemployed, but in August 2014 it was noted that the Veteran works as a farmer. In January 2016, treatment records indicate that the Veteran is retired. In a November 2010 neurology note, included in the Veteran's social history is that he has a PhD. The Veteran and his wife have submitted statements describing the extent of his disabilities. In a June 2016 statement the Veteran described his symptoms as pain in both feet and a decreased ability to stand comfortably for any period of time, as well as loss of balance. He reported using a cane regularly, particularly when walking on uneven surfaces or when ascending or descending steps and that his instability has resulted in several falls. In May 2020, the Veteran's wife submitted a statement. The Board notes that the Veteran's wife is a board-certified clinical nurse specialist in adult health nursing and has been married to the Veteran for forty-five years. She stated that the Veteran has a worsening ability to stand due to pain, especially on his right foot to a tolerance of significantly less than five minutes. She described the pain to cause loss of balance and falls. In October 2021, the Veteran's representative submitted an informal hearing presentation. They argued that a TDIU was warranted due to the Veteran's mobility issues as documented in his December 2019 VA examination. The Board concludes that the Veteran's disabilities do not preclude him from obtaining and maintaining substantially gainful employment. Though his disabilities limit the Veteran's ability to stay on his feet for prolonged periods of time and he has difficulty walking, there is no evidence that the Veteran is unable to sit for prolonged periods of time. The Board acknowledges the Veteran's mobility difficulties evidenced by him being unable to walk or stand for thirty minutes with weight bearing along with his balance difficulties. These symptoms though are compensated by the assigned ratings for his disabilities. A TDIU is appropriate when a Veteran's disabilities preclude him from obtaining and maintaining substantially gainful employment which is not shown here. The Veteran has not presented any evidence that suggests his disabilities interfere with his ability to sit for prolonged periods of time. Without evidence of interference with sitting, the Board cannot find that the Veteran is precluded from substantially gainful employment. (Continued on the next page) The Board notes that in their informal hearing presentation the Veteran's representative raised an argument that if the Board could not grant TDIU based on the record that the Board should remand to obtain a new examination that assess the effect of all of the Veteran's service-connected disabilities on his employability. The 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). The record contains ample evidence regarding the current extent of the Veteran's service-connected disabilities. The Veteran's most recent VA examination was in December 2019, and he has not alleged that his disabilities have worsened since this examination. Accordingly, the Board finds that a remand is not necessary to obtain an examination that assesses the effect of the Veteran's service-connected disabilities on his employability. As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, a TDIU is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.