Citation Nr: 21069310 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 12-14 836 DATE: November 18, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT The Veteran did not return a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and the evidence does not support that he is prevented from obtaining or maintaining gainful employment as a result of his service-connected disability. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1971 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2013, the Veteran testified at a video conference hearing before a Veterans Law Judge who has since retired from the Board; a transcript is of record. The law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. 38 C.F.R. § 20.604. Therefore, the Veteran was offered a new hearing in a letter dated in September 2020. He was advised that if he did not respond within 30 days, the Board would assume he did not want another hearing and proceed accordingly. The Veteran did not respond to the letter, and the Board proceeded with appellate consideration. As this case has a long and complicated history, the Board finds a recitation of the procedural history to be instructive for purposes of clarity. The Veteran's appeal was first remanded by the Board in March 2014 to ensure that VA fulfilled its duty to assist the Veteran. The Veteran's appeal was returned to the Board, which denied the Veteran's claim for a TDIU in a May 2017 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in December 2018, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand (JMR). In a December 2018 Order, the Court vacated the Board's May 2017 decision and remanded the matter for readjudication in light of the JMR. In June 2019, the Board then remanded the Veteran's appeal to the AOJ for actions consistent with the parties' agreements in the December 2018 Court-endorsed Joint Motion and subsequently remanded the Veteran's claim in November 2020. The Board again remanded this claim in April 2021 for additional development. As the actions specified in the remand have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. In response to the Board's March 2014, June 2019, November 2020 and April 2021 remand directives, the RO sent the Veteran letters in July 2014, November 2019, November 2020, April 2021, and June 2021 requesting that he complete and return a VA Form 21-8940. To date, the Veteran has not responded to any of VA's requests. Given the decision by the Veteran not to participate in any further development of his claim, the Board points out that the duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that, as the Veteran has rejected VA's attempts to generate the necessary information to assist with substantiating his claim, there is no duty to seek further development. Neither the Veteran nor the record has raised any other issues with regard to VA's duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). As such, the Board will proceed with appellate consideration of the issues on appeal. 1. Entitlement to a total disability rating based upon individual unemployability (TDIU), to include on an extraschedular basis The Veteran's claim for a TDIU was raised during the pendency of his appeal of increased rating claim for his service-connected posttraumatic stress disorder (PTSD) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran continues to assert that his PTSD prevents him from securing and following a substantially gainful occupation. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met, and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran's sole service-connected disability, posttraumatic stress disorder is evaluated 30 percent disabling from October 10, 2007. See 38 C.F.R. § 4.25, Combined Ratings Table. For the entire period on appeal, the Veteran does not meet the schedular criteria for a TDIU. Accordingly, a TDIU cannot granted under the schedular provisions of 38 C.F.R. § 4.16(a). Nevertheless, as noted above, the Board must still consider whether the Veteran is unemployable for the purposes of extraschedular TDIU. In exceptional circumstances, where the Veteran does not meet the percentage requirements under the schedular criteria, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. Such cases are referred to the Director of Compensation Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In January 2021, per the Board's remand directives, the RO referred the Veteran's claim for a TDIU to the Director of Compensation Services. In that correspondence the RO recommended denial of a TDIU on an extraschedular basis after a thorough review of the Veteran's claims file. The Board can review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16 (b) and make an independent determination. Anderson v. Shinseki, 22 Vet. App. 423 (2008). Thus, the question before the Board is whether the Veteran's service-connected disabilities precluded substantial gainful employment for which his education and occupational experience would have otherwise qualified him. The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners' conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment. For a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central inquiry 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 his or her 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 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The term substantially gainful employment refers to, at the minimum, the ability to earn a living wage, and is not engaged in substantially gainful employment if annual income below the poverty threshold for one person). See Bowling v. Principi, 15 Vet. App. 1, 7 (2001). In Faust v. West, 13 Vet. App. 342, 356 (2000), the Court held actual employability is shown as a matter of law by substantially gainful employment. This means employment that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works. Id. There is an exception to this rule for sheltered employment. Cantrell v. Shulkin, 28 Vet. App. 382 (2017). A claimant bears the burden of presenting and supporting a claim for benefits. See 38 U.S.C. § 5107(a); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The duty to assist in the development and adjudication of a claim is not a "one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). A claimant may have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In July 2014, November 2019, November 2020, April 2021, and June 2021, the VA sent the Veteran correspondence requesting that he complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Veteran has not completed and submitted a copy of the form to the VA. Potentially relevant evidence could have been provided by the Veteran through the filing of VA Form 21-8940, to include his full employment history, income, training and education, and specific circumstances of prior employment. The Veteran's own statements and medical records reflect that during the period on appeal he has worked as an insurance broker and in sales at his son's rim shop. He has reported difficulties with some of his employment activities but has also, at least at times, reported full-time employment. In a March 2008 statement, the Veteran reported being self-employed, during his 2013 hearing the Veteran testified that he was working at his son's rim shop, and in a March 2017 treatment record he reported full time employment but during a February 2020 VA examination, the Veteran stated that he was no longer working at his son's shop due to his attitude but that he still helped out there from time to time. There is no question that the Veteran's PTSD impacts his ability to work. The record also reflects that the Veteran has obtained various types of work over the years. The Board previously remanded the claim in April 2021 specifically to obtain this information and clarify the dates of employment. Based on the evidence of record, the Board cannot determine with any reasonable specificity when the Veteran has worked, how much income he has earned, and whether he has engaged in sheltered employment. Thus, the Board is unable to determine eligibility for TDIU benefits, to include on an extraschedular basis. The Veteran has failed in his duty to provide VA information solely within his control. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim). On this record, the Veteran has not met his burden of establishing entitlement to TDIU on an extraschedular basis and the claim, therefore, must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.