Citation Nr: 21006028 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-10 824A DATE: February 3, 2021 ORDER A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities include post-concussion syndrome with headaches, rated as 30 percent disabling; degenerative disc disease and lumbar strain, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; left knee patellofemoral syndrome, rated as 10 percent disabling; and radiculopathy of the right leg, rated as 10 percent disabling. The combined disability rating is 60 percent. 2. The available evidence of record is insufficient to support a referral to the VA’s Compensation and Pension Service for extra-schedular consideration. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 2004 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) from an Agency of Original Jurisdiction (AOJ) decision of July 2011. The Veteran presented sworn testimony in support of his appeal during a June 2017 hearing before the undersigned Veterans Law Judge. In December 2017 and again in August 2020 the Board remanded to the AOJ for further evidentiary and procedural development. Duty to assist the Veteran in developing his claim Most recently in August 2020, the Board remanded because the Veteran had not been provided with the opportunity to verify his employment history. As the Board explained at that time, the AOJ had mailed the Veteran a letter requesting such information in an organized form in May 2019; however, the Postal Service returned the letter in June 2019, with a notation that the forwarding time had expired. The AOJ did not attempt to re-send the letter. The Board explained that the Veteran’s employment history is a critical component of adjudicating the Veteran’s entitlement to TDIU, and encouraged the Veteran to work with his representative and the AOJ to provide accurate and complete information regarding his employment for his file. Upon remand, the AOJ mailed the Veteran another letter requesting information about his employment history to his most recent address. It was not returned by the Post Office as undeliverable. Several other pieces of mail sent to the Veteran at that address are also unreturned. The Veteran did not respond to the request in any way, however. “The duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wished to fully develop his claim, he had a corresponding duty to assist by providing the requested information. The Board therefore holds that, even though the Veteran’s claim has not been fully developed, the VA has fulfilled its duty to assist him to the extent possible. We will thus proceed to evaluate his claim for TDIU based on the evidence currently of record. Entitlement to TDIU Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a Veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. TDIU may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident will be considered as one disability. Alternatively, a total disability rating for compensation based on unemployability may be assigned to a Veteran who is unable to secure and follow a substantially gainful occupation by reason of his/her service-connected disabilities. The Veteran’s employment history, educational and vocational attainment as well as his particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether the Veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose, ibid. In this case, the Veteran does not meet the schedular criteria for an award of TDIU, as he does not have at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. His service-connected disabilities include post-concussion syndrome with headaches, rated as 30 percent disabling; degenerative disc disease and lumbar strain, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; left knee patellofemoral syndrome, rated as 10 percent disabling; and radiculopathy of the right leg, rated as 10 percent disabling. The combined disability rating is 60 percent. Service connection has been denied for left leg numbness and adjustment disorder. According to the Veteran’s May 2009 application for TDIU, he completed one year of college education, and last worked in 2007 in a retail job. He testified during the June 2017 Board hearing that he had to stop working on account of back and knee pain together with his mental health problems. He is receiving Social Security disability subsistence payments due to residuals of a traumatic brain injury sustained during a post-service assault in 2007. During a November 2009 VA examination, the Veteran reported various jobs in restaurant and retail, with the most recent being in August 2009. He reported he was fired from that job as he was unable to keep up. He reported he was also fired from his prior job in 2008, as he was unable to work as many hours as requested. Following a comprehensive records review and clinical examination, the examiner opined that the Veteran’s primary impairment was the result of an assault in 2007, which left him with a severe traumatic brain injury. Furthermore, the examiner opined that the Veteran had been functional between leaving military service and the 2007 head injury. The examiner opined that based solely upon his service-connected disabilities, the Veteran was capable of a wide variety of employment with minimal limitations. During an April 2011 VA examination, the Veteran reported he had recently worked for one month at a juice business, but lost the job after a month. The Veteran engaged with the VA’s Vocational Rehabilitation service, but was discontinued in September 2014 due to the Veteran’s failure to pursue rehabilitation services and his failure to respond to repeated attempts made by his vocational rehabilitation counselor to contact him. During a June 2019 VA spine examination, the Veteran reported that he was self-employed as a door modifications specialist, and had lost one to two weeks of work time during the past twelve months. The examiner rendered the opinion that the Veteran’s service-connected back disability limited him to light work only. In this case, the Veteran does not meet the schedular criteria for an award of TDIU, as he does not have at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. Such cases may be submitted to the Director of VA’s Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). Following the Board’s most recent remand, the AOJ considered whether such a referral was warranted and determined it was not. The Board agrees with this determination. Upon careful review, the evidence does not show the Veteran is rendered unemployable due to his service-connected disabilities. Rather, the evidence shows that his service-connected orthopedic disabilities, tinnitus, and the service-connected post-concussion headaches may limit his employment options to light work only, but do not preclude employment. This conclusion is consistent with the Social Security determination that the Veteran is rendered unemployable by nonservice-connected psychiatric conditions. Prior to a referral for extra-schedular consideration, more information would be required as to the Veteran’s employment history and his current reported employment as a door modifications specialist, which the Veteran has not provided. In this regard, we observe that marginal employment shall not be considered substantially gainful employment. For purposes of this regulation, marginal employment generally shall be deemed to exist 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. Marginal employment may also be held to exist on a facts-found basis, including but not limited to employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). As the record stands, however, without further cooperation from the Veteran, there is simply inadequate information to determine whether his self-employment as a door modifications specialist fits these criteria. In sum, the preponderance of the evidence is against the Veteran’s claim. TDIU is denied. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, 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.