Citation Nr: 21074843 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-56 236 DATE: December 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not render him unable to obtain or maintain 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. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision. In that decision, the agency of original jurisdiction (AOJ) assigned a 30 percent disability rating for anxiety, and denied service connection for posttraumatic stress disorder (PTSD). In December 2012, the Veteran filed a Notice of Disagreement (NOD) claiming that he was entitled to a rating higher than 30 percent for his anxiety disorder and service connection for PTSD. In October 2016, the AOJ issued a Statement of the Case continuing the 30 percent rating for the Veteran's anxiety disorder and continuing the denial of service connection for PTSD. The Veteran appealed that decision to the Board. In February 2019, the Board issued a decision denying an increased rating for the Veteran's anxiety disorder and denying service connection for PTSD. The Veteran appealed the Board's February 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court vacated the February 2019 Board decision and remanded the case back to the Board for additional development consistent with VA's duty to assist. In June 2021, the Board found that the claim for TDIU was raised as part and parcel of the Veteran's claim for increased rating for his psychiatric condition and remanded the claim for further development. Rice v. Shinseki, 22 Vet. App. 447, 45355 (2009). The appeal for TDIU benefits now returns to the Board and is the subject of this Board decision. The Board recognizes that a claim for TDIU was also raised under the modernized review system, also known as the Appeals Modernization Act (AMA). That claim was denied by the Board by way of a November 2021 decision. To be clear, this decision is being issued under the Legacy Appeal system without respect to the decision issued under the AMA system, as the Legacy appeal stream provides for consideration of more evidence than that considered under the AMA appeal stream due to different statutes and regulations. Entitlement to a TDIU is denied. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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 U.S.C. § 1155 ; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry for TDIU 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 the veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by non-service-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. For purposes of a TDIU, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016); Faust v. West, 13 Vet. App. 342, 355-56 (2000) ("substantially gainful employment" for TDIU purposes is met where the annual earned income exceeds the poverty threshold for "one person," irrespective of the number of hours or days actually worked and without regard to any prior income history). Marginal employment may also be held to exist on facts found basis, including when self-employment results in earned annual income exceeding the poverty threshold for one person were performed in a "protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16 (a). In this case, the Veteran has the following disabilities that are service connected: PTSD with anxiety disorder (rated 70 percent, from April 2011); Prostate cancer status post brachytherapy (rated 0 percent from July 2006 to August 2018 and 40 percent from August 2018); Erectile dysfunction (rated 0 percent from July 2006); Gastroesophageal reflux disease (GERD) (rated 0 percent from April 2011); and Hypertension (rated at 0 percent from December 2012). Thus, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). A substantially complete Application for Increased Compensation Based on Unemployability or Form 21-8940 is required to establish entitlement to TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. Here, the Veteran was sent a notice with a request to complete a Form 21-8940 in August 2021. He did not return the completed form, or otherwise provide information requested in the form. The Board finds that VA has discharged its duty to assist when it sent the Veteran a request to complete Form 21-8940. The duty to assist is not a one-way street, and the Veteran is required to cooperate in the development of his claim by providing pertinent information. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In March 2011, the Veteran reported that he is self-employed in the basement waterproofing business because he is unable to work well with others. During an August 2015 VA psychiatric examination, he reported that while he continued to own his business he was no longer involved in the day-to-day operations. He claimed that he considered himself to be "semi-retired" and that he is "stepping back" from work. In September 2016 and May 2018, the Veteran was seen by private provider Dr. R.D. who found him to be "quite active" at work as a contractor. Most recently, during a November 2021 VA examination, the Veteran reported he continued to own and work for his basement waterproofing company, at a desk job. Absent a completed Form 21-8940, the Board cannot be sure of the circumstances surrounding the Veteran's employment. There is no evidence to suggest that his employment is in a protected environment or marginal. The lack of a VA Form 21-8940 makes it difficult for the Board to fully assess what the Veteran's annual income is, if he has any accommodations, how many other employees he may be working with, and other considerations for rendering a determination as to whether his employment is marginal. There is simply not enough information in the record for the Board to determine that the Veteran is unable to sustain gainful employment or is marginally employed. Rather, the evidence shows that the Veteran has been self-employed for many years. In general, the disability ratings assigned to the Veteran's service-connected disabilities specifically contemplate functional impairment that affects the Veteran's ability to work. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), (finding that the schedular rating assigned for a disability is, itself, recognition that industrial capabilities are impaired as a consequence of the disability). On review of all of the Veteran's VA medical records, the Board does not find evidence that his service-connected disabilities interfered with his ability to work to such a point that he was unable to secure and maintain substantially gainful employment. To that end, VA psychiatric examinations from August 2012 and August 2015 reflect that the Veteran's symptoms were not severe enough to result in occupational impairment. According to a February 2021 VA examination, the Veteran's PTSD with anxiety causes deficiencies in the area of work, which is fully contemplated by the 70 percent disability rating assigned. In August 2012, the Veteran was examined for GERD and it was determined that his GERD did not impact his ability to work. While the Veteran also reported urinary frequency every half hour and having to stop travelling long distances for work, his September 2018 and April 2020 prostate cancer examinations show that his prostate cancer did not impact his ability to work. During a November 2021 VA examination, the Veteran reported that "urine incontinence causes discomfort and embarrassment at work but does not prevent working." Similarly, in April 2019, the Veteran underwent a VA examination for his hypertension and the examiner found that it did not impact his ability to work. Based on the foregoing, a TDIU benefit is not warranted. While the Board acknowledges the Veteran's assertions, the evidence does not show that his disabilities preclude all forms of employment. While the Veteran maybe limited in his ability to perform some activities, there is simply no evidence in the record that supports a finding that his service-connected disabilities prevent him from securing or maintaining all gainful employment. To the contrary, the Veteran's own reporting of being self-employed throughout the appeal period suggests that he was able to sustain a business for many years. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim of entitlement to TDIU is denied. 38 U.S.C. § 5107. Sarone Solomon Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.