Citation Nr: 21072248 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 13-29 251 DATE: December 2, 2021 ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The evidence of record does not show that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment consistent with his level of education and work history. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 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 January 1966 to January 1970, and from January 1986 to October 2001. The Veteran also had service of an unverified nature in the Army Reserve. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction. This claim was previously remanded by the Board in June 2021, where jurisdiction of the issue was taken as part and parcel of the Veteran's claim for entitlement to an increased rating of his lumbar spine disability under Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Board finds that there has been substantial compliance with the Board's remand directives and proceeds with the decision herein. See Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. The Veteran seeks entitlement to a TDIU as a result of his service-connected disabilities. Currently, the Veteran is service-connected for lumbar spine degenerative disc disease, prostatitis, radiculopathy of the right lower extremity associated with the lumbar spine disability, hypertension, irritable colon syndrome and gastric ulcers, tinnitus, radiculopathy of the left lower extremity associated with the lumbar spine disability, surgical scar of the right occipital region of the head, painful scar of the back of the head, painful surgical scar of the left elbow/forearm, chronic obstructive pulmonary disease, hemorrhoids, surgical scar left elbow/forearm, and right ear hearing loss with ear infection/surgery. 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. See 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." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In this case, the Veteran meets the schedular threshold requirements for a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Accordingly, the remaining question is whether the Veteran's service-connected disabilities preclude gainful employment. Here, it is unclear whether the Veteran is currently employed and working. VA treatment records dated October 2019 indicate that the Veteran is employed full time. June 2019 VA treatment records also report that he is employed full time and indicate that that he did desk work for several years after retirement from the military. Such June 2019 treatment records noted constant back pain with numbness and tingling. However, a May 2018 VA treatment record reports that the Veteran was not employed at the time and that he retired from his job as a security interviewer for the U.S. Army for 12 years in September 2017. A May 2016 VA treatment record reports that he was working as a military recruiter. April 2021 VA treatment records report that the Veteran is active, as he does yardwork and also delivers meals through "meals on wheels" about once a month. In July 2021, the AOJ, in compliance with the Board's previous remand, notified the Veteran of the development of his claim for entitlement to TDIU and enclosed a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. However, the Veteran did not complete either form and in a September 2021 Supplemental Statement of the Case the Veteran was notified of the denial of his claim and that submission of the VA Form 21-8940 was needed for further consideration. In a November 2021 Informal Hearing Presentation, the Veteran through his representative, did not mention the missing form, did not allege any reason for having not submitted it, and did not specifically assert unemployability due to his service-connected disabilities. The Board notes that VA examiners have found that some of his service-connected disabilities impact his ability to work, however, such examinations did not consider the sedentary nature of his desk job as a security clearance interviewer. Specifically, December 2019 VA examination of his back reported that he has difficulty bending over due to his pain and that he cannot lift more than 25 lbs. or stand for more than 2-3 minutes without sitting down due to the pain. Moreover, a March 2017 VA examination of his hip and thighs reported that manual labor may be difficult for the Veteran. A March 2017 VA examination of his knees indicates that prolonged walking may be difficult for the Veteran. While the Board is to consider the VA examinations and the impact of such disabilities on his ability to work as noted in the examinations, the Board is reminded that the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In this case, the Board considers the entirety of the record, to include the Veteran's military, educational, and occupational histories. Here, the Veteran worked for 12 years as a civilian for the U.S. Army performing security clearances. Such job is considered a desk job, and therefore, the impairments noted in the VA examinations related to prolonged walking, manual labor, and lifting do not render the Veteran unemployed in this case. While the record also indicates some work as a military recruiter, the Veteran has not asserted that such disabilities prevented him from his work. In fact, a November 2008 VA treatment record indicates that he experiences intermittent back pain at work but that it does not compromise his job performance. The Board notes that in addition to the physical disabilities the Veteran is service connected for hearing loss of the right ear, tinnitus, and scars. However, his hearing loss in his right ear is rated non-compensable, his tinnitus is rated as 10 percent disabling, and his scars are rated at 10 percent. While the Board has considered these disabilities as part of the record in its entirety, the Board notes that at no point has the Veteran asserted that he is unable to secure and follow a substantially gainful occupation as a result of his right ear hearing loss, tinnitus, or scars. The Board finds that the weight of the evidence, lay and medical, does not demonstrate that the Veteran's service-connected disabilities prevent him from obtaining or retaining substantially gainful employment. As noted above, the Veteran's employment during the period on appeal remains unclear, as the Veteran failed to submit the VA Form 21-8940 and has reported periods of retirement beginning in September 2017 and periods of full-time employment in 2019. See VA treatment records. While the Veteran has reported back pain while working, the record does not indicate, and the Veteran does not assert, unemployment or decrease in job performance as a result of such pain. Therefore, given the evidence of record and the Veteran's employment history as contained in the record, the Board finds that overall, the weight of the evidence does not show that he is precluded from securing and following substantially gainful employment due to his service-connected disabilities. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 8 U.S.C. § 5107; 38 C.F.R. § 3.102. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.