Citation Nr: 21007633 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-17 955A DATE: February 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to January 9, 2020 is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran was unable to obtain and maintain substantially gainful employment due solely to his service-connected disabilities for the period prior to January 9, 2020. He has apparently maintained employment through at least early 2020. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to January 9, 2020 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.1, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1969 to December 1970. This case was previously before the Board in January 2017 and September 2019 when it was remanded for additional development. In September 2020, the Board denied entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to June 19, 2017, granted a 50 percent rating for the period from June 19, 2017 to January 6, 2020, and denied entitlement to a rating more than 70 percent thereafter. It also found that the issue of entitlement to a TDIU had been raised by the record and remanded that matter for evidentiary development. It has since been returned to the Board for further consideration. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to January 9, 2020 The Veteran contends that his service-connected disabilities rendered him unemployable and that he is therefore entitled to a TDIU for the period prior to January 9, 2020. It is noted that he has had a 100 percent combined schedular rating assigned since January 9, 2020, and has not had a single disability evaluated at 100 percent disabling at any time. Therefore, the period prior to January 9, 2020 remains on appeal. 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 (2019). 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. Id. 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. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. For the Veteran to prevail in a claim for TDIU, the evidence must show that he or she is unable to pursue a substantially gainful occupation due to service-connected disabilities. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing 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). For the period prior to January 9, 2020, service connection was in effect for the following disabilities: PTSD (50 percent); obstructive sleep apnea (50 percent); enucleation, left eye (40 percent); scar, left side of face and nose (10 percent); tinnitus (10 percent); coronary artery disease (10 percent); bilateral hearing loss (noncompensable); fracture, left maxillary sinus and orbital floor (noncompensable); scar, status post CABG (noncompensable); and muscle damage and numbness over left cheek region (noncompensable). For the period from November 25, 2015 and prior to January 9, 2020, a 90 percent combined rating was in effect. Therefore, the Veteran met the schedular requirements. What remains to be determined is whether the Veteran’s service-connected disabilities rendered him unemployable during the applicable period. To begin, the Board observes that the Agency of Original Jurisdiction (AOJ) has requested that the Veteran file a VA 21-8940, Application for Increased Compensation Based on Unemployability to support his TDIU claim. His claim for TDIU was most recently remanded in September 2020 for evidentiary development. The AOJ took appropriate steps and sent the Veteran a notification letter in October 2020 that included instructions to submit a VA Form 21-8940. A November 2020 supplemental statement of the case and rating decision informed the Veteran that his TDIU claim was denied, at least in part due to his failure to submit this form. No response to these requests has been received to date. The Board is left to consider the available evidence of record. Notably, a July 2009 treatment record reveals that the Veteran was working full-time for the past 20 years in the manufacture and sales of metal buildings. At a July 2009 VA psychiatric examination, the Veteran reported he worked for a lumber business from 1971 to 1986, and that he was now working full-time for a sheet metal business owned by the previous employer. He reported he has been working for the same employer for 39 years. The examiner noted, “He does no[t]miss work and his job is in good shape.” A May 2011 VA heart examination shows that the Veteran’s service-connected coronary artery disease has no functional impact on his ability to work. A June 2016 VA eye examination indicates that his eye condition limits his depth perception and impacts his entire left field of vision. A July 2016 VA sleep apnea examination stated that “The impact of the sleep apnea on [the Veteran’s] ability to work is difficulty working if he does not get sleep and is fatigued.” At a June 2017 VA psychiatric examination, the Veteran reported working part-time at a metal building manufacturing facility when needed. During a January 2020 VA psychiatric examination, the Veteran stated that he was still employed but planning to retire in a month due to concerns regarding his irritability and overall mental health. A January 2020 VA audiological examination reveals that his hearing loss and tinnitus can cause difficulty conversing with others, which contributes to his anxiety. The above evidence reflects that the Veteran’s service-connected disabilities alone have not rendered the Veteran unable to obtain and maintain substantially gainful employment for the period prior to January 9, 2020. Importantly, the Veteran has maintained employment through at least early 2020. Furthermore, the Veteran has not complied with the request to submit a VA Form 21-8940 in support of his TDIU claim. While the Board has considered the Veteran’s contentions concerning his employability, more probative value is assigned to the opinions of the VA examiners because they were conducted by medical professionals after an objective examination of the Veteran and review of his medical and employment history. After considering the totality of the record, the Board finds that the preponderance of the evidence reflects that the Veteran’s service-connected disabilities alone did not preclude him from obtaining and maintaining substantially gainful employment for the period prior to January 9, 2020. The benefit of the doubt doctrine is thus not for application and the claim must therefore be denied. 38 U.S.C. § 5107(b). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.