Citation Nr: 21006640 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 11-02 827 DATE: February 4, 2021 ORDER Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran did not return a completed VA Form 21-8940 to support his claim for TDIU, and the preponderance of evidence is against finding that the Veteran’s service-connected disabilities result in total unemployability. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1987 to June 1990. This matter comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) September 2008 rating decision, which, in pertinent part, denied an increased rating higher than 10 percent for a right knee disability. In a July 2014 decision, the Board found that the issue of entitlement to a TDIU had been raised by the record as part of the increased rating claim for the right knee. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In December 2013, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the AOJ. The Board remanded this case in July 2014 for the AOJ to consider a February 2014 VA examination report addressing the right knee and so that the issue of entitlement to a TDIU could be developed, as the Veteran had raised the issue. In June 2016 and July 2017, the Board remanded the case again as the evidence suggested a worsening of the right knee disability. The TDIU issue was found to be inextricably intertwined. In February 2020, the Board adjudicated the right knee claim and remanded the TDIU issue, so that the Veteran could be provided with a VA-Form 21-8940. The directives of the Board’s remand having been substantially complied with by the AOJ, the case is now returned for appellate review. 1. Entitlement to a TDIU While the Veteran has not specifically claimed entitlement to a TDIU, in the July 2014 decision, the Board found that, in light of the claim for his service-connected right knee disability which was then on appeal, the record reasonably raised the question of whether the Veteran is unemployable due to his service-connected disabilities, and the issue of entitlement to a TDIU rating was part and parcel of the claim for a right knee disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability is considered to exist when there is any impairment in 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 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). The term "unable to secure and follow a substantially gainful occupation" is defined as having two components: one economic and one non-economic. The economic component means 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. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31Vet. App.58, 73 (2019). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran’s service connected disabilities are (1) postoperative residuals right knee meniscotomy, dislocated semilunar cartilage with frequent episodes of joint locking, pain, and effusion, rated as 20 percent from March 6, 2008; (2) right knee limitation of flexion, rated as 10 percent from April 23, 2018; (3) postoperative residuals, right meniscotomy, rated 10 percent from June 27, 1990; 100 percent from July 16, 2013 to September 1, 2013, pursuant to 38 C.F.R. § 4.30; and 10 percent from September 1, 2013; (4) right shoulder strain, rated as 20 percent from April 23, 2018; (5) gastroesophageal reflux disease, rated as 10 percent from March 6, 2008; (6) right elbow strain (claimed as right forearm condition and pain), rated 10 percent from April 23, 2018; (7) right elbow strain (impairment of supination and pronation), rated as 10 percent from April 23, 2018; and (8) right knee scars associated with postoperative residuals, rated as 0 percent from September 1, 2013. The Veteran does not meet the percentage requirements for consideration of a total evaluation under 38 C.F.R. § 4.16 (a), as his combined disability rating for his service-connected disabilities is 40 percent from March 6, 2008 to July 16, 2013; 40 percent from September 1, 2013; and 60 percent from April 23, 2018 (with a total temporary rating due to surgery necessitating convalescence under 38 C.F.R. § 4.30 from July 16, 2013 to September 1, 2013). When the required percentage requirements are not met, but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, the Director of the VA Compensation Service should consider whether a TDIU may be awarded on an extraschedular basis. 38 C.F.R. § 4.16 (b). Under the facts of this case, the Board finds referral is not warranted. In November 2015, the AOJ provided the Veteran with notice regarding how to substantiate his TDIU claim and requested that he complete and return a VA Form 21-8940 (Increased Rating Based on Unemployability). In a September 2016 letter, the AOJ requested the Veteran to submit information concerning his educational and work history, including whether he was presently employed, and if so, his income. The Board’s February 2020 remand instructed the AOJ to send the Veteran another TDIU claim form. The Veteran was sent a letter in August 2020, which included the VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. This form requests information regarding the Veteran’s occupational and educational history, which is necessary to determine entitlement to TDIU. The Veteran did not return this form to VA and did not respond in any way. The Veteran’s representative argued in a January 2021 written brief presentation that the AOJ made no effort to followup with the Veteran by telephone or letter and that it should have made at least one attempt to ensure that the Veteran received the letter and understood why he needed to complete the VA Form 21-8940, and whether he understood how to complete the form. It was requested that the Board remand the claim to the AOJ so it could resend the VA Form 21-8940 and attempt to contact the Veteran to ensure that he understood how and why to complete this form. The Board disagrees that the AOJ did not provide the Veteran with sufficient information concerning the evidence needed to substantiate a TDIU claim and why sending the formal TDIU claim was important. As noted, the AOJ sent the Veteran letters in September 2015, September 2016, and August 2020 requesting that the Veteran submit information concerning his educational and work history, including whether he was presently employed, and if so, his income, as well as the information necessary to substantiate a TDIU claim and the VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran never responded to these letters. VA has satisfied its duty to notify and assist the Veteran in this instance. See 38 C.F.R. § 3.159(b)(2) (If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information.). A veteran must cooperate when he is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Additionally, a substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories. However, the Veteran did not return VA Form 21-8940 to support his claim. Here, during September 2008 and June 2018 VA examinations and in various treatment records, the Veteran has reported that he is unemployed due to his right knee disability. Vocational Rehabilitation records show that the Veteran has a work history as a painter and that he was seeking a degree in medical office administration. A June 2018 VA examination report notes that the Veteran had not been able to do his job due to his knee. It was noted that he had worked as a painter and stopped working in 2013 after he fell down the stairs. A June 2018 VA shoulder examination report notes that the Veteran’s shoulder disability impacts his ability to work in that he has difficulty raising his arms above his head. A June 2018 VA examination report addressing the Veteran’s GERD notes that his GERD did not impact his ability to work. In July 2018, a VA examination report notes that the Veteran’s right elbow disability impacts his employment in that he was unable to lift objects weighing more than 20 pounds due to right elbow pain and had lost one to two weeks of work time in the last 12 months. A September 2019 VA examination report notes that the Veteran’s knee impacts his employment due to his limited range of motion and functional impairment in standing and walking. When considering entitlement to TDIU, the record must demonstrate some factor that takes the Veteran’s situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence weighs against the Veteran’s service-connected disabilities resulting in total unemployability. The Veteran reportedly fell in 2013 injuring his knee and had not worked as a painter since then. However, a July 2018 VA examination report notes that the Veteran received a certification in computer electronics in college and attended additional college from 2003 to 2005. He had been working as a painting supervisor in 2013 when he was injured. The preponderance of the evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due to his service-connected disabilities. Here, although the Veteran has alluded to being unemployed due to his knee, he has not filed a formal claim for a TDIU. Consideration has been given to the Veteran’s prior education, training, and work experience that can be gleaned from the record because the Veteran did not return the necessary form for TDIU. See 38 C.F.R. §§ 3.341, 4.16, 4.19. But the evidence does not support that the Veteran’s service-connected right knee, shoulder, elbow, or GERD disabilities resulted in unemployability or precluded all forms of employment based on him having some computer training and experience working as a painting supervisor. The Board acknowledges that the Veteran appears to be unemployed, however, the mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough to warrant a grant of TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The determination as to whether TDIU is appropriate must be based on all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Based on the foregoing, the Board finds that the evidence does not reveal factors outside the norm resulting in unemployability due to the Veteran’s service-connected disabilities. Accordingly, the appeal will not be referred for further extraschedular consideration and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. As such, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.