Citation Nr: 21070113 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-38 558 DATE: November 23, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran is not unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1985 to June 1987. This matter was previously before the Board of Veterans' Appeals (Board) in June 2021. At that time, the Board denied the Veteran's claims for an increased rating for her service-connected left hip and right hip disabilities. The Board also found that the issue of a TDIU was reasonably raised by the record and, thus, remanded it for further development. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU 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. A finding of total disability is appropriate 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. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 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). "Marginal employment," as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16 (a). The United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). Other factors considered in determining whether a veteran is unemployable are his level of education, employment history, and his vocational attainment. Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). However, advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether the Veteran currently is unemployable. 38 C.F.R. § 4.16(a). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). 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 or she can find employment. Id. Here, the Board notes that the Veteran does not meet the schedular criteria for TDIU. Her current service-connected disabilities are left hip trochanteric bursitis, evaluated as 10 percent disabling and right hip trochanteric bursitis, evaluated as 10 percent disabling. Thus, the combined rating of her service-connected disabilities only total to 20 percent. 38 C.F.R. § 4.16 (a). The Board does not have information on the Veteran's employment history, education, special training, or the approximate time when she became unable to work if she is in fact unable. When the schedular TDIU requirements are not met, as in this case, entitlement to a TDIU on an extraschedular basis may still be granted. 38 C.F.R. § 4.16(b). However, the Board is not authorized to assign an extraschedular TDIU in the first instance. Id. Instead, the Board must submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular TDIU requirements, to the Director of Compensation Service, for extra-schedular consideration. Wages v. McDonald, 27 Vet. App. 233 (2015). Thus, the issue before the Board is more specifically whether referral to the Director of Compensation Service for consideration of an extraschedular TDIU is warranted. Pursuant to the June 2021 Board remand, the Regional Office (RO) requested that the Veteran complete a VA Form 21-8940 Veteran Application for Increased Compensation Based on Unemployability. However, she has not returned the form. While failure to complete the form is not fatal to a TDIU claim in and of itself, her failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information needed to address a claim for TDIU. 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 as it currently stands. The record shows that, after separation from service, the Veteran was employed part-time as a flexible clerk at the United States Postal Service (USPS). In a May 2009 correspondence, the Veteran reported that this position required her to carry mail on a walking route every day, of which she did for 10 years. She also reported her hips, feet, legs, and back bothered her then. At a June 2009 VA examination, the Veteran reported that her hip conditions affected her daily activities as a postmaster because she could not work normally. She reported being unable to completely care for herself at home and occasionally walked with a cane. In a September 2009 correspondence, the Veteran reported that, at that time, she worked as a postmaster in a small office. Her job duties required her to stand, to sell items such as stamps and money orders, and to box mail. She stated that her boss was not happy about her not being able to walk on routes. She expressed that there was no way she could do light duty in her office. At a June 2016 VA examination, the Veteran stated that she was unemployed since 2004 and had previously worked for the post office. She explained that her bilateral hips conditions impacted her job performance due to decreased ability to perform prolonged standing and walking related activities. In a June 2019 correspondence, the Veteran reported that, at the end of January 2015, she experienced severe left hip pain. As she was attending a class at a local college, she again, experienced severe hip pain. She also reported daily hip pain. At a November 2019 VA examination, she reported that she was a retired postal worker and in the last 12 months, lost approximately 0-1 weeks of work. She explained that she could not stand or walk for long durations due to bilateral hip pain and was not able to work on a job that required prolong standing or walking. Given the above, the Board finds that a remand for referral of the Veteran's claim for consideration of a TDIU on an extraschedular basis is not warranted. The evidence shows that the Veteran was able to work as both a mail carrier and postmaster with the USPS, despite her reports of functional impact due to her service-connected hip conditions and pain. The Board notes the November 2019 VA examination in which the Veteran reported losing approximately 0-1 weeks of work in the last 12 months due to her hip conditions. In this regard, however, it is unclear the number of hours per week she worked, the duration of her employment at the USPS, and her reason for retirement (i.e., due to service-connected disabilities or a personal choice). Indeed, while the Veteran reported functional loss and while prior examiners indicated that her bilateral hip conditions impacted her ability to perform occupational tasks, no examiner has specifically determined that her service-connected hip disabilities preclude her ability to obtain or maintain gainful employment. The absence of such a finding is significant. In addition, the Veteran has not provided any evidence that she is unable to secure and maintain substantially gainful employment. The October 2020 Appellant's Post-Remand Brief simply argues that the Veteran is no longer working, due to her retirement from USPS and that attempts to obtain gainful employment would be significantly impaired due to her hip conditions. The Board reiterates that the fact that the Veteran is unemployed is not determinative to the issue herein on appeal. Rather, the ultimate question is whether she was incapable, due to service-connected disabilities, of performing the physical and mental acts required by employment. In this regard, the record lacks the requisite evidence to make such a determination, and the Veteran has not provided any information regarding her dates of employment, type of work, reason for leaving employment, education, and training necessary to support her contentions that, due to her service-connected disabilities, she should be considered unemployable. Accordingly, given the entirety of the evidence of record, there is no basis for referral to the Director of Compensation for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16 (b). The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against this claim. As such, that doctrine is not applicable. There is no compelling evidence that the Veteran's service-connected bilateral hip disabilities have (CONTINUED ON NEXT PAGE) rendered her unable to secure and follow a substantially gainful occupation. For this reason, entitlement to a TDIU is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert at 55-57 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.