Citation Nr: 21076803 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-29 551 DATE: December 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT A completed VA Form 21-8940 to substantiate the TDIU claim has not been provided by the Veteran despite the request from the Department of Veterans Affairs. Also, the preponderance of the evidence of record is against a finding that the Veteran's service-connected disabilities have rendered her unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU due to service-connected disabilities have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.159, 3.340, 4.3, 4.15, 4.16, 20.1305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1980 to August 1983. This matter came before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (CAVC). The matter was initially before the Board on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). An August 2018 Board decision denied entitlement to a rating in excess of 30 percent for the service-connected sinusitis and entitlement to a TDIU rating. The Veteran appealed that decision to the CAVC. A June 2019 CAVC Order vacated the Board's August 2018 decision and remanded it to the Board for further development and re-adjudication consistent with the terms of a June 2019 Joint Motion for Remand (JMR). In January 2020, the Board remanded the case to the RO for further development. Subsequently, in an August 2020 rating decision, the RO increased the rating for chronic sinusitis to 50 percent (the maximum schedular rating) effective December 23, 2003 (the date the reopened claim was received by VA), resolving that matter. The Board notes that the Veteran has not yet initiated an appeal of that decision. The RO also issued an August 2020 supplemental statement of the case (SSOC), denying entitlement to TDIU, and returned the matter to the Board. In a May 2021 decision, the Board remanded the matter for RO to readjudicate the claim because new evidence was received after the August 2020 SSOC. Hence, the RO readjudicated the claim and issued an August 2021 SSOC, denying entitlement to TDIU and returned the matter to the Board for appellate adjudication. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the May 2021 remand. See Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). The Board notes that following issuance of the most recent SSOC for the issue on appeal, additional evidence and documents were associated with the record. The additional evidence and documents are not pertinent to the issue on appeal, instead these are relevant to a totally different issue because these include treatment record for a non-service-connected eye condition, and do not need to be considered for the issue on appeal. See 38 C.F.R. § 20.1305(c). Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The Veteran contends that her service-connected disabilities, including asthma, chronic sinusitis, and degenerative joint disease of the right great toe status post fracture, have precluded her from securing and following substantially gainful employment. In March 2010, the Veteran submitted a claim for TDIU. However, she has not completed or filed a TDIU Form. 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 are rated totally disabled. 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." 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran has the following disabilities that are service connected: asthma (rated 60 percent from December 23, 2003); chronic sinusitis with history of nasal polyps (rated 50 percent from December 23, 2003); degenerative joint disease of the right great toe status post fracture (rated 10 percent from November 4, 1998). Her combined rating is 80 percent. Based on the forgoing, the Veteran has at least one disability rated 60 percent or more; also, 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). For the reasons that follow, the Board finds that a TDIU is not warranted. As noted above, the Veteran filed a claim of TDIU in March 2010. However, she did not complete or filed TDIU Form with the claim. Subsequently, VA provided and requested the Veteran to complete VA Form 21-8940 for TDIU claim on multiple occasions, including May 2010, July 2014, May 2021, and July 2021 letters. The Board notes that in September 2021, the Veteran filed the claim for TDIU again; however, she did not submit a completed TDIU Form. A fully completed VA Form 21-8940 provides the required information for developing and adjudicating a TDIU claim. The Veteran did not return a completed form which would have provided VA with the information needed to contact and obtain evidence from the Veteran's current and prior employer(s). See 38 C.F.R. § 3.159(c)(1)(i) (a claimant must cooperate fully with VA's reasonable efforts to obtain relevant records and provide enough information to identify and locate the existing records). VA cannot fully develop the claim without the help of the Veteran. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that "[t]he duty to assist is not always a one-way street."). If the veteran wishes help with her claim, she must cooperate with VA's efforts to assist her. Without a completed VA Form 21-8940, the Board is left to decide the TDIU claim based on the available evidence of record. As far as the Veteran's work history is concerned, the evidence of record shows that she mostly worked in public safety and protective services. Per May 2020 resume, she worked as public safety officer with South Carolina Department of Public Safety from July 1992 to April 2008, where her duties included security of public buildings, overseeing special events and public gatherings; worked as corporal with Directorate of Emergency Services Police/Provost Marshal Division from April 2009 to August 2015, where her duties included reviewing and processing employment security clearance request, for new employees and soldiers; then she worked as security officer with Department of Justice from April 2019 to October 2019, where she performed duties, including inspecting contractors and vehicle entering the building. The April 2011 report of a vocational rehabilitation manager, which was requested by South Carolina Department of Public Safety, after the Veteran injured her back, contains a detailed work history of the Veteran. Per the report after completing her High school in 1976, the Veteran worked as an apartment manager assistant performing clerical duties of filing, answering the telephone, calling repairmen, etc. Then she performed duties in Army as personnel management, with light data entry onto forms. Per vocational manager this is classified as light in physical demand with a category as semi-skilled. Then she worked as correctional officer with South Carolina Department of Corrections from November 1986 to October 1990, the vocational rehabilitation manager classified this job as medium in physical demand with a category as semi-skilled, with ending pay of $15,500.00 per year. From October 1990 to July 1992, the Veteran worked as public safety officer with South Carolina Department of Mental Health, with ending pay of $18,500.00 per year. From July 1992 to April 2008, the Veteran worked with South Carolina Department of Public Safety with ending pay of $41,816.00 per year. The vocational rehabilitation manager classified this job as skilled with medium in physical demand. She was placed on light duty due to back injury and was eventually terminated. From April 2009 to April 2010, she worked as an administrative police officer filing, issuing weapons, registering vehicles, performing background checks, and serving as a receptionist. The vocational rehabilitation manager noted that the Veteran was told she could not continue in the job when she was restricted by her allergist from being pepper sprayed; however, the Veteran feels that it was more related to her employer becoming aware of extent of her back impairment. The ending pay for this job was $34,907.00. As far as the Veteran's education and skills are concerned, she has a master's degree. Per May 2020 resume, she completed her master's degree in December 2017 with major in Homeland Security and concentration in Emergency Management. She completed her bachelor's degree in December 2014 with major in Public Affairs and minor in Leadership. The document, associated with the claims file in July 2018, contains a copy of master's degree reflecting that she completed her Master of Science in Homeland Security in December 2017. Regarding the functional impacts of the Veteran's service-connected disabilities on her ability to work during the appeal period, starting from March 2010, the Board notes that during the June 2010 Foot examination, the Veteran reported constant pain in foot; however, the examiner did not note any functional impact of foot condition. During the June 2010 examination for respiratory conditions, the VA examiner noted that the Veteran's respiratory and allergic conditions did not affect her activities of daily living. In an August 2010 statement, vocational rehabilitation counselor noted that the Veteran was not hired by a Security Company because of her allergic reaction to pepper spray. In an October 2010 correspondence, the Veteran stated that she was separated from her last job because of allergies. She asserted that she worked in law enforcement for 24 years and at the age of 52 this is the only career she would have. In a February 2011 opinion, the VA examiner stated that the Veteran's service-connected disabilities of asthma and sinusitis would not prevent her from gainful employment indoors and would not render her unable to secure or maintain substantially gainful employment in the terms of sedentary employment. A Social Security Administration record from September 2011 reflects the Veteran was disabled due to disorders of back as primary diagnosis (a non-service-connected disability) and asthma as secondary diagnosis. A March 2011 private treatment record noted that the Veteran injured her back in a series of work related incidents while employed as a public safety officer. In the April 2011 report, a vocational rehabilitation manager, after providing the information regarding the back injuries at work as a public safety officer, stated that the Veteran was limited to an unskilled or semi-skilled sedentary/sitting job because of back injuries. In an August 2011 medical report furnished by Social Security Administration reflects the Veteran's asthma and sinusitis would prevent her from physical or outdoor type activities. The record also reflects that a medical provider opined in February 2011 that the Veteran would be able to perform sedentary level of function and clearly unable to return to her prior duties in law enforcement. In October 2011, the Veteran's private physician, stated that the Veteran's primary problems were "chronic severe allergies as well as some asthma." The physician also stated that the Veteran's asthma seemed to be under better control. In the January 2012 letter, the Veteran's physician, stated that the Veteran lost her job since she could not tolerate being sprayed with substance required for employment. In the November 2012 VA medical opinion, the examiner noted that the Veteran had difficulty tolerating colognes and sprays and opined that typically isolated sinus problems are not disabling to the point where the Veteran is unable to work. During the January 2013 VA examination for foot condition, the examiner noted that because of foot condition, it would be difficult for the Veteran to drive, bending for prayer, and standing too long because this would cause numbness and swelling. During the January 2013 VA examination for asthma, the examiner noted that due to asthma, the Veteran would be wheezing while walking up hills and stairs. At the July 2016 RO hearing, the Veteran asserted that she had problems in speaking in her class due to allergy and asthma. She also testified that she lost her job in 2010 because of spray intolerance. A May 2018 VA treatment record noted that foot pain is uncomfortable and impacts the work. In a January 2020 letter from a physician at Washington VA Medical Center, the physician stated that the Veteran's medical conditions would aggravate by standing outdoors in cold weather. Therefore, her work should be restricted to indoors and standing to no more than 15 minutes per hour. The Veteran was afforded a VA examination for her respiratory condition in December 2020, in which the examiner noted that the Veteran's respiratory condition does not impact her ability to work. Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the VA adjudicator must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). After reviewing all relevant evidence of record, including the Veteran's statements the Board finds that the Veteran's service-connected disabilities might cause some functional impairment and impact her ability to perform strenuous jobs. However, these disabilities do not seem to preclude all substantially gainful employment for the Veteran based on her educational and occupational history per evidence of record. As noted above, the VA and private medical professionals have opined that the Veteran can perform sedentary work. The Board notes that "sedentary" means "doing or requiring much sitting" or "not physically active." Merriam-Webster's Collegiate Dictionary 1123 (11th ed. 2012). It also means "1. Sitting habitually; of inactive habits. 2. Pertaining to a sitting posture." Dorland's Illustrated Medical Dictionary 1687 (32nd ed. 2012). The Board also notes that the Veteran has performed sedentary jobs in the past, including working as an assistant manager for apartment building and as corporal, where she screened and reviewed the records. The Board acknowledges the Veteran's statement that she is allergic to pepper spray due to her service-connected respiratory conditions and that is why she could not obtain or perform jobs in public safety services. However, the Board finds that the Veteran might not be able to perform jobs as public safety officer, she can still perform other sedentary jobs, where the pepper spray is not mandatory based on her education and vocational history. Hence, the Board finds that the Veteran's service-connected disabilities may preclude employment at the skill level at which she was previously employed, but the existence of low-skilled occupations where the occasional need to avoid physically demanding tasks has not been contested. The Veteran has not contended nor does the record shows that such occupations are not available or do not exist. The fact that a veteran is unemployed or has difficulty finding employment due to service-connected disabilities does not warrant assignment of a TDIU alone, the evidence must show that the Veteran is incapable "of performing the physical and mental acts required" to be employed. Van Hoose, 4 Vet. App. at 363. As noted above, the record does not include a completed TDIU claim form, despite the Board remand and the RO efforts to obtain a completed TDIU Form from the Veteran. As a result, the Board is not clear as to the Veteran's current employment status and other key pieces of information required for substantiating the TDIU claim, including her efforts to look for jobs. Furthermore, a September 2021 VA correspondence reflects that VA rehabilitation counselor proposed to close the Veteran's case for Veteran Readiness and Employment (VR&E) services because the Veteran has not responded to contact attempts. Consequently, the Board finds the preponderance of the evidence is against the claim. While the Board has considered the benefit-of-the-doubt standard, there is no affirmative evidence that the Veteran is incapable of substantial gainful employment due to service-connected disabilities alone. As noted above the Veteran's non-service-connected back disability also impacts her functional ability. See Fagan v. Shinseki, 573 F.3d 1282, 1286-87 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). It is the Veteran's responsibility under 38 U.S.C. § 5107(a) to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Veteran has not met this burden here. Hence, the Board concludes that an entitlement to TDIU due to the Veteran's service-connected disabilities is denied because of the Veteran failure to cooperate with VA for substantiating the claim, and a preponderance of the evidence of record is against a finding that the Veteran's service-connected disabilities have rendered her unable to secure or follow substantially gainful employment. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.