Citation Nr: 21069027 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 14-43 770 DATE: November 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). FINDING OF FACT The Veteran's service connected disabilities did not render him unable to secure or follow a substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from January 1983 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This claim was remanded in December 2020 for the RO to develop the Veteran's TDIU claim under Rice v. Shinseki, 22 Vet. App.447, 453-54 (2009), to include providing the Veteran with an Application for Increased Compensation Based on Unemployability Form (VA Form 21-8940) to complete and return. The RO sent the VA Form 21-8940 to the Veteran in January 2020. The Veteran failed to submit the completed application and his claim was denied in a February 2021 supplemental statement of the case. The Veteran's representative specifically requested in an April 2021 Informal Hearing Presentation that the Veteran be afforded another opportunity to submit a completed TDIU application. The Board remanded the claim in April 2021 to provide the Veteran another opportunity to submit his VA Form 21-8940. An April 2021 letter to the Veteran requested that he complete the VA Form 21-8940 and that the failure to complete the form may result in the denial of a TDIU claim. As of the time of this decision, the VA Form 21-8940 has not been submitted. The Board finds that there has been substantial compliance with its previous remands. This matter now returns to the Board for further adjudication. Entitlement to a TDIU The Veteran contends that his service-connected disabilities have impacted his ability to maintain employment, to include his knee disabilities. See June 2018 Lay Statements. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An assessment of TDIU entitlement based on the combined effects of all service-connected disabilities should address all such disabilities. Therefore, the cumulative effects (functional impairment) of all service-connected disabilities should be addressed in determining if the service-connected disabilities prevent substantially gainful employment. Floore, 26 Vet. App. 376; accord Geib v. Shinseki, 733 F.3d 1350, 1353-54 (Fed. Cir. 2013). In making such a determination, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record and every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad, 1 Vet. App. at 169. The veteran's credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). 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. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During the appeal period, the Veteran has been service connected for the following disabilities: obstructive sleep apnea, rated as 50 percent disabling from May 15, 2008; migraine headaches, rated as 50 percent from October 31, 2011; a right knee, meniscal injury, rated as 20 percent disabling from June 13, 2012; a left knee, meniscal injury, rated as 20 percent disabling from June 13, 2012; degenerative joint disease, left knee, rated as 10 percent disabling from February 1, 2003; pseudofolliculitis barbae, rated as 10 percent disabling from February 1, 2003; left knee instability, rated as 10 percent disabling from May 25, 2010; degenerative joint disease, left ankle with residual scar, rated as 10 percent disabling from June 11, 2010; degenerative joint disease, right great toe (also claimed as gout, right great toe), rated as 10 percent disabling from October 31, 2011; degenerative joint disease, right ankle, rated as 10 percent from September 1, 2013; degenerative arthritis, right knee, rated as 10 percent from January 1, 2016; low back strain, rated as noncompensable from February 1, 2003; hypertension, rated as noncompensable from January 6, 2006; erectile dysfunction associated with hypertension, rated as noncompensable from May 15, 2008; non-painful scars, right knee associated with degenerative arthritis, right knee, rated as noncompensable from November 16, 2015, non-painful scar, left knee associated with degenerative joint disease, left knee, rated as noncompensable from April 11, 2018; right knee instability, rated as noncompensable from December 6, 2018. The combined rating is 40 percent from February 1, 2003; 70 percent from May 15, 2008; 80 percent from May 25, 2010; 80 percent from June 11, 2010; 90 percent from October 31, 2011 and 100 percent beginning on June 13, 2012. Therefore, the criteria for consideration of a TDIU pursuant to 38 C.F.R. § 4.16(a) has been met from May 15, 2008. As mentioned above, the Veteran was sent a letter in January 2021 and April 2021 notifying him of the evidence required for an award of a TDIU. These letters requested that he complete a Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The Veteran has not responded and did not complete a VA Form 21-8940. The "duty to assist is not always a one-way street," and a Veteran is obliged to cooperate in the development of the pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board will decide this matter based on the evidence of record. Turning to the functional impact of his disabilities, in a May 2010 correspondence from the Veteran, he reported being on light duty because of his knees since October 2009. In an August 2010 VA examination for his knees and ankles, the examiner noted that the Veteran's functional impairments includes difficulty with standing and walking and limitations to bending and stooping. In an October 2013 treatment letter from Dr. L.G., the examiner stated that the Veteran is currently limited in his social and work life due to his symptomatology. In a March 2017 VA examination for his knees, the Veteran stated that his job has been trying to fire him for the last five years. However, his job made special arrangements for him to work outside of his expertise because of his condition and because he is a Veteran. The examiner noted that the Veteran's functional impact was severe. She emphasized that the Veteran had decreased range of motion of the knee and that the degree of osteoarthritis present would cause a decreased ability to perform postural changes such as bending, stooping and crouching along with a decreased ability to carry heavy objects. The examiner concluded that prolonged walking and standing would be difficult and navigation of stairs or climbing ladders would also be difficult. In a June 2018 correspondence from the Veteran, he stated that his job accommodated him and moved him to assist with employee training and development because of his disabilities. In a January 2019 VA examination for a psychiatric evaluation, the Veteran reported working as a contractor since 2003 in a shipyard and currently working at a shipyard since 2009. In an April 2019 VA examination for his knee instability, the Veteran's functional loss was noted as difficulty with kneeling, squatting, going up or down stairs and ladders. The examiner emphasized that the functional impact of the Veteran's degenerative joint disease right ankle and degenerative joint disease left ankle included difficulty with prolonged standing and walking. Based on the foregoing, and in consideration of the pertinent clinical findings, the Board concludes that the functional impact of the Veteran's service-connected disabilities on his employability does not warrant a TDIU. The Board recognizes that it has been reported by the Veteran that he is still working as of January 2019 and the Veteran's current employment status is not clear from the record. The Veteran was granted convalescence for his right ankle disability after surgery from July 10, 2013 to September 1, 2013 and from November 3, 2015 to January 1, 2016. However, the records reveal that his service-connected disabilities do not prevent or preclude him from obtaining and maintaining gainful employment. Although it has been noted that the Veteran's knee and ankle conditions are severe and limit his ability to stand and walk for prolonged periods of time, it was noted that the Veteran was provided special arrangements to work outside his expertise to accommodate his disabilities in March 2017. In 2018, the Veteran stated that he was assisting with employee training and development at work because of his disabilities. In the January 2019 VA examination, the Veteran stated that he has been working since 2003 and started his current job since 2009. He also stated that he had been working on light duty since 2009. See May 2010 Correspondence. The Board has carefully considered the Veteran's statements regarding the effects of his service-connected disabilities on his employability. Although the Veteran experienced some limitations as a result of his service-connected disabilities, and these have been found to cause some impact on his daily functioning and earning capacity, that impact was considered in the scheduler ratings currently assigned. Simply stated, if he did not have impairment with his service-connected disabilities, there would be no basis for a combined rating for such. The fact that he was having difficulties does not provide a basis to grant TDIU. Accordingly, the Board concludes that a TDIU is not warranted for the appeal period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.