Citation Nr: 21072252 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-43 167 DATE: December 2, 2021 ORDER A total disability rating based on individual unemployability as the result of service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran's service connected disabilities do not preclude her from securing and following a substantially gainful occupation consistent with her education and work experience. CONCLUSION OF LAW The criteria for the award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to April 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran participated in a hearing before the undersigned in April 2019, and a transcript of this hearing has been associated with the record. This matter was most recently before the Board in July 2021, when it remanded the issue of entitlement to service connection for an acquired psychiatric disability. The AOJ granted the Veteran's claim for service connection in October 2021. The Board will not further consider the claim for service connection because the AOJ's October 2021 rating decision granted the claim in full. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The Board additionally remanded the claim for a TDIU as intertwined with the claim for service connection for an acquired psychiatric disability. The AOJ issued a supplemental statement of the case addressing the Veteran's claim in October 2021. The AOJ has substantially complied with the Board's July 2021 remand directives, and it will proceed to a decision. TDIU VA will grant a total rating based on unemployability when the evidence shows that a veteran is precluded, by reason of service connected disability, from securing and following a substantially gainful occupation consistent with her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. A substantially gainful occupation is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356 (1991); 38 C.F.R. § 4.16(a). Employment is "marginal" when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. When, as in this case, a veteran is service-connected for two or more disabilities, the award of a TDIU on a schedular basis requires a combined disability rating of 70 percent or greater, with at least one service-connected disability rated at 40 percent or greater. 38 C.F.R. § 4.16(a). Prior to December 6, 2010, the schedular criteria for the award of a TDIU were not met, because the Veteran had a combined 60 percent disability rating based on a service connected acquired psychiatric disability and a bilateral shoulder disability. On and after December 6, 2010, the schedular criteria for the award of a TDIU are met, because the Veteran had combined 80 percent and 90 percent disability ratings based on a service connected acquired psychiatric disability, pes planus disability, and a bilateral shoulder disability. While the schedular criteria for the award of a TDIU are not met before December 6, 2010, VA may still award a TDIU on an extraschedular basis if the veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability, and consideration is given to the veteran's background including her employment and educational history. See 38 C.F.R. § 4.16(b). The Board does not have the authority to assign a TDIU on an extraschedular basis in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). Turning to the facts in this case, as an initial matter, the AOJ, for example in November 2010 and July 2021, notified the Veteran of the information required to substantiate a claim for a TDIU, and it requested that the Veteran provide pertinent records relating to her unemployability, to include VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Individual Unemployability. To date, the Veteran has not responded to VA's requests for such documentation. The Veteran's failure to provide VA with this information does not itself bar VA from granting a TDIU. The absence of this form, however, impedes the Board's analysis of the claim for a TDIU because the evidentiary record lacks pertinent information regarding the Veteran's employment history, income history, educational history, and training. In sum, the Veteran has failed to cooperate with VA's attempts to develop the claim for a TDIU. The Board emphasizes that the duty to assist is not always a one-way street. If a Veteran wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The available evidentiary record indicates that the Veteran completed a high school education. The Veteran began collecting disability benefits from the Social Security Administration (SSA) in 1999, based on the combined disabling effects of depression, fibromyalgia, arthritis, and migraines. The Veteran's reported work history (as noted, for example, in October 2011, December 2015, and March 2017) shows that she worked for the Salvation Army on a part-time, volunteer basis from the time of her May 2010 claim until approximately 2013, when the Salvation Army employed her part-time as a kitchen manager. The Veteran worked in this position until approximately September 2019, when she began working part-time in a grocery store. The evidence indicates that the Veteran has maintained this part-time employment since that time. In addition to the Veteran's work and education history, which as previously noted is limited, the Board has reviewed the medical and lay evidence relating to the effects of the Veteran's service connected disabilities on her employability. For example, in June 2010, the Veteran indicated that she had been unable to work since June 1998 as the result of "many medical problems". In a March 2017 psychiatric examination, the Veteran stated that she was trying to "recover from [her] surgery so [she] could go back to work . . .". The examiner found the Veteran to be capable of managing her financial affairs. The examiner concluded that the Veteran's psychiatric symptoms resulted in occupational impairment due to mild or transient symptoms that decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or the Veteran's symptoms were controlled by medication. In March 2017, an examiner noted that the limited range of motion associated with the Veteran's shoulder disability would impact her ability to work, with pain associated with overhead employment activity. During her April 2019 hearing before the undersigned, the Veteran reported that she had been employed by the Salvation Army as a kitchen manager on a "very limited basis" because she could not stand for long periods of time. In January 2020, an examiner noted that the Veteran's shoulder disability would impact her ability to work, with the Veteran unable to perform tasks involving reaching or lifting above shoulder height. In January 2020, an examiner noted that the Veteran's foot disability would impact her ability to work; the Veteran could not jump from heights or run, and she experienced pain when carrying heavy objects. In an August 2021 psychiatric examination, an examiner found the Veteran to be capable of managing her financial affairs. The examiner concluded that the Veteran's psychiatric symptoms resulted in occupational impairment due to mild or transient symptoms that decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or the Veteran's symptoms were controlled by medication. Turning to an analysis of this evidence, while the Veteran has failed to provide necessary employment information, the weight of the evidence nevertheless suggests that the Veteran's employment has been marginal, rather than substantially gainful, since filing her May 2010 claim. Throughout the appeal, the Veteran has worked either as a volunteer (until approximately 2013) or on a part-time basis (from approximately 2013 until the present). While the weight of the evidence shows that the Veteran has maintained marginal, rather than substantially gainful, employment throughout the appeal, the weight of the evidence is against a finding that the Veteran's service-connected disabilities alone have precluded her from securing and following a substantially gainful occupation consistent with her education and occupational experience. Indeed, no clinician or examiner has found that the Veteran's service connected disabilities alone prevent her from securing and following a substantially gainful occupation. The opinions rendered by the VA examiners regarding the functional effect of the Veteran's service-connected disabilities upon her ordinary activity, to include employment, are entitled to great probative weight. The ultimate question of whether a Veteran is capable of substantial gainful employment is a determination for the adjudicator. However, the Court and Federal Circuit have held that medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R.§4.16 (a); Geib v. Shinseki, 733F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In this regard, clinicians and examiners have observed that the Veteran's service-connected pes planus disability, acquired psychiatric disability, and bilateral shoulder disability indeed impact her ability to work. However, the Board finds that the Veteran's service connected disabilities, even with consideration of the combined effects of such disabilities, do not prevent the Veteran from securing and following a substantially gainful occupation. The medical record shows that the Veteran's shoulder and pes planus disabilities result in physical challenges that limit her abilities to reach, lift above shoulder height, run, jump from heights, and carry heavy objects. The medical record, for example in March 2017 and August 2021, shows that the Veteran's acquired psychiatric disability results in "mild or transient symptoms". While combined physical and psychological effects of these symptoms may limit the Veteran's ability to perform occupational tasks, the weight of the evidence is against a finding that such symptoms preclude the Veteran from securing and following a substantially gainful occupation consistent with her education and work experience as a kitchen manager and grocery store employee. In making this determination, the Board has considered the SSA's finding that disabilities prevented the Veteran from working since September 1999. VA is not bound by this determination, and the Board otherwise affords the finding of the SSA with relatively little probative weight. The SSA's disability determinations are governed by different legal criteria than those applicable to TDIU; the SSA may, for example, consider factors such as age and nonservice-connected disabilities. Indeed, in this case, the SSA's analysis considered the combined effects of not only the Veteran's service connected acquired psychiatric disability, but also her non-service connected disabilities of fibromyalgia, arthritis, and migraine headaches. The Board does not doubt that the Veteran's service connected disabilities affect her employability, as evidenced by the existing combined 60 percent, 80 percent, and 90 percent ratings of the Veteran's disabilities. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, upon a thorough review of the evidence of record, the Board finds that the Veteran is not precluded from engaging in substantially gainful employment as a result of her service connected disabilities. As such, the benefit of the doubt doctrine is inapplicable, and the claim for TDIU must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.