Citation Nr: 21076207 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-52 566 DATE: December 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disability is not shown to render her incapable of securing or following a substantially gainful occupation consistent with her work and education background. CONCLUSION OF LAW The criteria for establishing a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps (USMC) from June 1989 to June 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the April 2019 decision, the Board declined to reopen a claim of service connection for a back disability and denied a claim for a rating greater than 70 percent for the service-connected posttraumatic stress disorder (PTSD). See April 2019 Board Decision. The claim for a TDIU was added to the appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that, when evidence of unemployability is submitted during an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). Accordingly, the Board took jurisdiction over the claim for a TDIU but remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. The Board requested that the AOJ provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the AOJ. The AOJ sent her this form in January 2020, but she has not since returned the form or provided the information requested on it. Given the Veteran's inability to cooperate with VA to obtain these records, further effort to assist the Veteran will not be undertaken. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("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."). Accordingly, the case has been returned to the Board for further appellate action. TDIU Here, as noted in the introduction above, the Veteran's TDIU claim has been inferred from her increased rating claim for her service-connected PTSD, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In particular, the Veteran maintains that she had difficulty working due to anxiety and panic symptoms. She further reported that she cannot function at work, feels very stressed and anxious. See September 2017 Mental Outpatient Note and September 2017 Social Work Note. In this regard, the Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran contends that she is unable to maintain gainful employment due to her service-connected disability. She is service connected for PTSD rated at 70 percent. Thus, she has one service-connected disability rated 60 percent disabling or more. 38 C.F.R. §§ 4.16(a). Accordingly, the Veteran meets the schedular percentage requirements for eligibility for TDIU. 38 C.F.R. § 4.16(a). For the Veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him or her in a different position than other Veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Pursuant to the Board's April 2019 remand directives as noted above, the Veteran was sent a letter in January 2020 notifying her of the evidence required for an award of a TDIU. She was also sent a copy of VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. To reiterate, the Veteran has not responded to the letter, nor has she returned a completed form. Therefore, the Board will decide this matter based on the evidence of record as it currently stands. See Wood v. Derwinski, 1 Vet. App. at 193 (1991). Review of the competent evidence of record, which includes VA examination reports, private treatment records, VRE records, and the Veteran's statements, when taken in total, does not suggest that the Veteran is unable to obtain or maintain substantially gainful employment on account of her service- connected disability. An April 2009 VA examination report shows that the examiner determined that the effect of the Veteran's PTSD on her usual occupation was long absences, anger, and frequent severe panic attacks. A September 2012 VA examination report shows that the Veteran reported having difficulty with absenteeism, multi-tasking, concentration, tardiness, and persistent fatigue in the workplace. She further reported that her absenteeism estimated at 1-2 weeks out of the month is because she feels overwhelmed and suffers from symptoms of depression. A March 2017 VA examination report shows that the examiner noted that in her current position as a security assistant, she has been missing more days at work. On the days when she is experiencing moderate or greater anxiety, she completes her assigned work, but requires a longer period to do so. There have been other days during the past two months when she described feeling frightened and had to leave early from work to go home and relax. The Veteran is easily agitated when feeling disrespected by coworkers and/or supervisors. The Veteran's VA treatment notes indicate that she has difficulty working due to anxiety and panic symptoms. See September 2017 Mental Health Outpatient Note. Specifically, in a September 2017 social work note, the Veteran reported that she cannot function at work, feels stressed out and anxious, and requested an extension on her leave of absence letter. Additionally, in November 2017, the Veteran reported feeling paranoid and concerned about returning to work because she could not trust herself to react appropriately at work. See November 2017 VA Mental Health Outpatient Note. A May 2020 VRE correspondence shows that the Veteran is currently working for the Department of the Treasury as a facilities management and security assistant. In the Veteran's current employment, she is responsible for conduct assessments for organizations, and design security systems and processes. She may specialize in areas such as physical security, personnel security, and information security. It is further indicated that although this position is not in line with the Veteran's vocational, goal of education, it is a suitable position and satisfies the Veteran's interest, aptitudes, and abilities. The minimum requirement for the position is a degree in the sciences. The VRE education and training assisted her in obtaining the position. The VRC spoke with the Veteran and she confirmed that she is still employed and is very happy with her current career choice. The VRC has determined that the Veteran has attained maximum rehabilitation gain as she has overcome her impairment to employability. While the Veteran's service-connected PTSD has been shown to impact her ability to work, the evidence of does not show that her service-connected disability is of such severity to render her unable to secure or maintain gainful employment. Information regarding the Veteran's full employment history to date is not of record, despite a request to the Veteran to assist in obtaining this information to make this determination. The only information about the Veteran's work history contained in the record is limited to VRE records and the VA examination reports. The Veteran herself has reported working at least through May 2020. More is not known about her more recent work history or whether she is currently unable to secure or maintain gainful employment. As noted above, the Veteran has not submitted a completed VA Form 21-8940, and the duty to assist a claimant in the development of an application for benefits is a two-way street. If the Veteran wishes help in developing this claim, she cannot passively wait in those circumstances where she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. at 193 (1991). (Continued on the next page) Accordingly, this available evidence of record does not support any assertion that gainful employment is precluded due to the Veteran's service-connected disability. Again, the Board notes that the Veteran has not identified or submitted any competent evidence regarding her employment history or demonstrated that her service-connected disability precludes her from securing and maintaining substantially gainful employment consistent with her work and education background. G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.