Citation Nr: 21076174 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-35 368 DATE: December 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's combination of service-connected disabilities is not shown to render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1952 to July 1954. The Board of Veterans' Appeals (Board) remanded this matter for further evidentiary development in April 2021. That decision recognized a claim for TDIU had been raised by the record and intertwined with the issue of entitlement to service connection for cold residuals of both feet, which was also remanded by the Board at that time. The case has returned to the Board for appellate review. The Board notes that the issue of entitlement to service connection for cold induced neuropathy, bilateral feet, was granted by an October 2021 rating decision issued by the agency of original jurisdiction (AOJ). As this claim for service connection has been granted in full, it is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to a TDIU A TDIU 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). TDIU will be granted when the evidence shows that the veteran, due to his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's service-connected disabilities include hearing loss, rated 40 percent; bilateral feet cold induced neuropathy, rated 20 percent each; tinnitus, rated 10 percent; other specified trauma and stressor related disorder, rated 10 percent; and gastroenteritis, rated noncompensable. His combined disability rating is 70 percent. Therefore, consideration of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(a) is warranted. In the April 2021 remand, the Board noted that the Veteran had not completed a VA Form 21-8940. Pursuant to the remand, in April 2021, the AOJ sent the Veteran and his representative a development letter requesting him to complete and sign VA Form 21-8940, along with any applicable VA 21-4192s (Request for Employment Information in Connection with Claim for Disability Benefits) to allow VA to obtain information from previous employers regarding his employment history. To date, the Veteran has not returned the form or otherwise issued any response concerning his TDIU claim. While failure to complete the form is not fatal to a TDIU claim in and of itself, the Veteran's failure to do so deprives the Board of information concerning the Veteran's employment history, educational history, relevant training, and income history necessary to address a claim for TDIU. Turning to the record, VA treatment records indicate that the Veteran is a retired business owner. See August 2009 to October 2012 Primary Care VA Treatment Notes. A January 2019 VA PTSD examination report shows from 1950 to 1952 he worked for a furniture company before service. At the January 2019 VA examination for the Veteran's bilateral hearing loss and tinnitus disabilities, the functional impact was described as the Veteran struggles to hear voices and communication when not using hearing amplification. She noted that the Veteran's tinnitus does not impact ordinary conditions of daily life, including the ability to work. At the January 2019 VA examination for the Veteran's bilateral feet disability, the Veteran reported constant use of a cane as a normal mode of locomotion. The examiner noted that the Veteran's bilateral feet disability does not impact his ability to work. The January 2019 VA examiner for the Veteran's gastroenteritis noted that the Veteran's intestinal condition does not impact his ability to work. At the January 2019 VA examination for the Veteran's PTSD, the Veteran reported owning and running his own business from 1957 to 2008. He denied any problems in terms of work relationships, tardiness, missed days, productivity, or efficiency. The Veteran stated that the company was profitable, and he retired in 2008 due to artery problem in his leg. The Board notes that the Veteran is not service connected for this disability. The August 2021 VA examiner for the Veteran's bilateral feet disability described functional impact as an occupation that would require the Veteran to work in cold temperatures would not be tolerated because of cool sensitivity as balance impairments would be a risk for the Veteran and an employer due to fall risks. In a March 2021 brief, the Veteran's representative indicated that the Veteran is entitled to a TDIU because the record demonstrates that he last worked in 2008 and the January 2019 VA examiner noted that the Veteran's hearing loss had a functional impact. However, the record is devoid of any assessment that the Veteran has been unable to obtain and retain substantial gainful employment due to service-connected disabilities, to include as due to his bilateral hearing loss disability. Although the examiner indicates the Veteran's hearing loss causes a functional impact, the remarks do not rise to the level of functional impairment that would prevent the Veteran from obtaining or retaining employment. The Veteran's bilateral hearing loss is evaluated as 40 percent disabling, which contemplates the level of impairment described by the January 2019 VA examiner. For the foregoing reasons, the evidence is against entitlement to a TDIU. The benefit-of-the-doubt doctrine is therefore not for application in this instance and the claim for a TDIU must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.