Citation Nr: 21008425 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-25 923 DATE: February 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. Prior to December 20, 2010, the Veteran’s service-connected disabilities do not meet the minimum percentage requirements for an award of a TDIU, and the average impairment in earning capacity due to the Veteran’s service-connected disability symptoms are adequately compensated and accounted for in the Veteran’s schedular rating. 2. From December 20, 2010, the preponderance of the evidence shows that the Veteran’s service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The requirements for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1967 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) as the result of several rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2018, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A copy of the transcript is part of the record. The matter was remanded in February 2019 and June 2020 for further development. The appeal has been returned to the Board for further action. REFERRED Several new issues were raised in a January 2020 VA 21-526EZ, Application for Disability Compensation, and are referred to the Agency of Original Jurisdiction for adjudication. The issue of TDIU is one of the listed claims but will be addressed here as it is within the jurisdiction of the Board. 1. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran contends that his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. See May and November 2020 Appellate Briefs. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). In determining unemployability for VA purposes, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as 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 he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the United States 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. TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If the Veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. This first element is a threshold element and requires the Board to compare the severity and symptomatology of the claimant’s service-connected disability with the rating-schedule for that disability. See Id. If the rating criteria reasonably describe the claimant’s disability level and symptomatology, the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant’s disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant’s disability picture requires the assignment of an extra-schedular rating. Id. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background Service-connected conditions for the Veteran include: 1) coronary artery disease (CAD) [rated as 10 percent disabling from April 6, 2010, 30 percent from May 6, 2011, and 60 percent from January 21, 2020]; 2) bilateral hearing loss [rated as 0 percent disabling from April 6, 2010, 50 percent disabling from December 20, 2010, and 0 percent from October 12, 2020]; 3) post-traumatic stress disorder (PTSD) with major depressive disorder (MDD) [rated as 30 percent disabling from April 6, 2010, 50 percent from May 6, 2011, and 70 percent from December 23, 2014]; 4) Tinnitus (rated as 10 percent disabling from April 6, 2010); and 5) erectile dysfunction (ED), associated with PTSD with MDD [rated as 0 percent disabling from April 28, 2015]. See December 2020 Rating Decision Codesheet. The Veteran’s combined overall ratings, including consideration of the bilateral factor, excluding periods of temporary total ratings and special monthly compensation, are: 1) 40 percent from April 6, 2010; 2) 70 percent from December 20, 2010; 3) 90 percent from May 6, 2011; 4) 100 percent from January 21, 2020; and 5) 90 percent from October 12, 2020. See December 2020 Rating Decision Codesheet. The Veteran graduated from high school in 1962. See VA Form 21E-1990, Veteran’s Application for Program of Education or Training. In the Army, the Veteran was a field artillery crew member and achieved the rank of Sergeant before he was honorably discharged. See March 1969 Certificate of Release or Discharge from Active Duty. Chapter 35 enrollment forms for the Veteran indicate training as a barber at “CCC Harris Barber College.” In addition, the Veteran attended “Atlanta Area Technical School” for training in construction and accounting / clerical work once he separated from the military. See February 1971, March 1972, and October 1974 Chapter 35 enrollment forms. An attempt to pursue vocational rehabilitation with VA was denied with the explanation, “At this time the veteran has been determined to be not reasonably feasible to benefit from a program of vocational rehabilitation.” See January 2012 VA Memorandum. The Veteran submitted a TDIU claim on September 25, 2014. In his VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran indicated that his disability affected full-time employment in the year 2010, but he did not leave his last place of employment due to his disability. For the previous five years, the Veteran indicated self-employment as a “carpenter.” Education and training for the Veteran included a high school diploma and “brick mason.” See September 2014 VA Form 21-8940. A February 2020 VA request of the Veteran to update his VA Form 21-8940 has not been fulfilled. See February 2020 VA correspondence. VA treatment notes and Board hearing testimony from the Veteran indicate that he was last employed full-time in 2010. The Veteran stated that he was “laid off” from his employment at The Home Depot in 2010. The Veteran remained out of work for the next several years to care for his spouse, who was diagnosed with cancer. Once she passed away in 2016, the Veteran returned to work full-time as a security guard, “[T]o keep from staying in my house all the time.” Despite the statements, “I can’t handle people” and “I can’t be around people,” the Veteran denies a history of disciplinary, interpersonal, or performance problems throughout his work history. See March 2015 Non-VA Care Consult Result Note and November 2018 Board hearing transcript. With the exception of the tax year 2012, Internal Revenue Service (IRS) records for the Veteran reflect income levels above the poverty threshold from the years 2010 to 2018, which includes those years in which he remained unemployed to care for his spouse. See tax years 2010 to 2018 IRS Income and Tax Statement transcripts. While the Veteran was able to earn more working in the construction field, his stated departure from that line of work was, “I’m old…You have to be physical.” See November 2018 Board hearing transcript. The Veteran is currently employed full-time as a security guard. See June 2019 VA Mental Health Therapy Note. Period from April 6, 2010 to December 20, 2010 During this period, the Veteran’s combined service-connected disabilities resulted in a 40 percent combined evaluation, he does not meet the schedular requirements for entitlement to individual unemployability. See December 2010 and March 2011 Rating Decision Narratives. The percentage standards criteria for schedular TDIU are set aside only when the evidence clearly and factually shows the veteran has been rendered unemployable solely due to service-connected disabilities regardless of their individual and combined percentages. Such cases are submitted to the Director of the Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). Evidence from the Veteran’s September 2010 VA examination for hearing loss and tinnitus indicates the effect on his usual occupation is “none.” See September 2010 VA examination report. The September 2010 VA examination for PTSD reflects, “[P]sychiatric symptoms are not enough to interfere with social and occupational functioning.” See September 2010 VA examination report. At his October 2010 VA examination for CAD, the Veteran reported that he “Does not experience any functional impairment” as a result of his condition. See October 2010 VA examination report. Referral for extraschedular consideration is not warranted for the Veteran’s service-connected CAD, PTSD, hearing loss, or tinnitus symptoms. The symptoms do not show “such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b) (2016). The Veteran has alleged no uncompensated symptoms associated with his service-connected disabilities. The average impairment in earning capacity due to the Veteran’s service-connected disability symptoms are adequately compensated and accounted for in the Veteran’s schedular rating. See Thun v. Peake, 22 Vet. App. at 115. Period from December 20, 2010, to May 6, 2011 From December 20, 2010, the Veteran’s combined overall disability rating was 70 percent, including a 50 percent evaluation for bilateral hearing loss. The Board finds that the Veteran meets the rating requirements for consideration of a schedular TDIU from December 20, 2010 to May 6, 2011. See 38 C.F.R. § 4.16(a). However, there is no evidence from the Veteran or the record that he is unemployable due to a service-connected disability. While the Veteran argues that his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment (See May and November 2020 Appellate Briefs), the Veteran was employed at Home Depot during this period. See November 2014 VA Mental Health Outpatient Initial Evaluation Note. As such, the Board finds that the Veteran’s employment cannot be considered marginal, as his income exceeds the poverty level for 2 people. See tax years 2010 to 2018 IRS Income and Tax Statement transcripts. There is no evidence in the record that the Veteran was employed in a sheltered or protected work environment during this period. In so finding, the Board recognizes the Court’s findings in Cantrell v. Shulkin, 28 Vet. App. 382 (2000) concerning the meaning of the term “in a protected environment” under 38 C.F.R. § 4.16(a). In Cantrell, the Court held that the meaning of “employment in a protected environment” is not clear from the regulation’s plain language and noted that the list of examples in the regulation “suggests that VA may have intended employment ‘in a protected environment’ to be a term of art that differs from the ordinary, accommodation-based dictionary definition proffered by the [V]eteran.” Id. The Board takes note of the examples of “protected environment” used in the text of 38 C.F.R. § 4.16(a), “family business or sheltered workshop.” In the case of a family business, it is common for an employer to hire a relative to fill a position, not because the relative is necessarily the most capable or efficient prospective employee, but for reasons of affection or obligation. The term “sheltered workshop” is not defined in Title 38 of the Code of Federal Regulations. Several state codes across the U.S. define “sheltered work shop” in the following ways: “a facility designed to provide gainful employment for individuals with severe disabilities who cannot be absorbed into the competitive labor market or to provide interim employment for such individuals when employment opportunities for them in the competitive labor market do not exist” (Louisiana); “a facility, or any portion thereof, operated by a nonprofit organization, corporation, partnership, limited liability company or association whose purpose is to provide meaningful work or training activities to individuals with developmental disabilities” (Oklahoma); “an occupation-oriented facility operated by a not-for-profit corporation, which, except for its staff, employs only persons with disabilities” (Missouri); “an occupation-oriented facility operated by a nonprofit agency, public or private, which except for its staff, employs only handicapped persons” (New Jersey). La. R.S. § 39:1604.4; 63 Okl. St. § 1-865.; § 178.900 R.S.Mo.; N.J. Stat. § 34:16-40. Title 20 of the Code of Federal Regulations, 20 C.F.R. § 404.1574 (a)(3), which the Code describes as an evaluation guide for (Social Security Administration) employees for determining whether a worker is involved in substantially gainful activity, states: “If you are working in a sheltered workshop, you may or may not be earning the amounts you are being paid. The fact that the sheltered workshop or similar facility is operating at a loss or is receiving some charitable contributions or government aid does not establish that you are not earning all you are being paid.” The Board recognizes that the Secretary, as of this decision, has not defined “protected environment.” Therefore, said determinations must be made on a case-by-case basis, evaluating the information and evidence in the record. Moreover, to consider entitlement to individual unemployability, the law requires the Veteran provide a substantially complete application. The Agency of Original Jurisdiction (AOJ) contacted the Veteran to request a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. See February 2020 VA correspondence. As of this date, the requested Form has not been received. The Board cannot verify the Veteran’s work status and / or previous work and educational history. Based on the available evidence in the record, the Veteran cannot be found unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. Referral for extraschedular consideration is not warranted for the Veteran’s service-connected CAD, PTSD, hearing loss, or tinnitus symptoms. The symptoms do not show “such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b) (2016). The Veteran has alleged no uncompensated symptoms associated with his service-connected disabilities. The average impairment in earning capacity due to the Veteran’s service-connected disability symptoms are adequately compensated and accounted for in the Veteran’s schedular rating. See Thun v. Peake, 22 Vet. App. at 115.   Period from May 6, 201,1 to January 21, 2020 On May 6, 2011, the Veteran received an increased evaluation of PTSD to 50 percent and an increased evaluation of CAD to 30 percent. His overall combined disability rating was 90 percent. See March 2012 Rating Decision Codesheet. Beginning December 23, 2014, the Veteran’s PTSD evaluation was increased to 70 percent disabling. His overall combined disability rating remained at 90 percent. See August 2015 Rating Decision Codesheet. The Veteran has been service-connected for ED since April 28, 2015. See May 2016 Rating Decision Narrative. The Board finds that the Veteran meets the rating requirements for consideration of a schedular TDIU from May 6, 2011, to January 21, 2020. See 38 C.F.R. § 4.16(a). However, there is no evidence from the Veteran or the record that he is unemployable due to a service-connected disability. A June 2011 VA examination for PTSD noted that the Veteran “avoids socializing with most people” and, “He worked better when he was alone during…self-employment.” At March 2015 VA treatment, the Veteran indicated that he, “Enjoys doing carpentry work and having a beer with a friend.” He also stated, “I need to find something to do, because he was “beginning to get irritated.” The Veteran was unemployed and “caring for his wife” at the time. See March 2015 Non-VA Care Consult Result Note. Combined, taxable income for the Veteran and his spouse for the tax year 2012 was reported as $10,407.00. See 2012 IRS Account Transcript. According to U.S. Health and Human Services guidelines, the poverty threshold for a household of 2 in the year 2012 was $15,130.00. See 77 Fed. Reg. 4034, 4035 (January 26, 2012). The Board notes that the Veteran’s VA disability income is not “taxable” for IRS purposes. See IRS Pub. 525 (2019). Although not determinative, the Board has considered whether the Veteran’s employment and income is considered marginal for the period from January 1, 2012 to December 31, 2012. See 38 C.F.R. § 4.16(a); Ray v. Wilkie, 31 Vet. App. 58 (2019). The record indicates that the Veteran was out of work for several years while he cared for his spouse, but not due to his service-connected disabilities as the law requires. See November 2014 VA Mental Health Outpatient Initial Evaluation Note. An April 2015 letter from the Veteran stated, “I continue to have difficulty hearing others in my social activities, direct family members, work related, or personal care. My hearing has caused me great difficulties in Job [sic] performance, that is why I am no longer able to work…the reality is that the majority of the time I am not able to hear adequately.” See April 2015 Veteran correspondence. A June 2015 VA examination for male reproductive system conditions determined the Veteran’s “[M]ale reproductive system condition does not impact his ability to work.” See June 2015 Male Reproductive VA examination report. When his wife passed away in 2016, the Veteran returned to work full-time as a security guard at CenterPoint Energy, “[T]o keep from staying in my house all the time.” See March 2015 Non-VA Care Consult Result Note. At July 2017 VA mental health treatment, the Veteran stated that he has “always been a loner.” See July 2017 VA Mental Health Outpatient Note. The Veteran testified in his November 2018 videoconference hearing before the Board, “If I go anywhere, I mostly just sit by myself.” See November 2018 Board hearing transcript. There is no evidence from the Veteran or in the record that the Veteran requires or is otherwise employed in a protected environment or is physically or mentally unable to perform his duties as a security guard. Ray v. Wilkie, 31 Vet. App. 58 (2019). While the Veteran makes a conscious choice not to interact with other people while assigned to work security at a hotel, there is no evidence from the Veteran or the record that accommodations are made to protect the Veteran from having to do so. See November 2018 Board hearing transcript. Moreover, to consider entitlement to individual unemployability, the law requires the Veteran provide a substantially complete application. The AOJ contacted the Veteran to request a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. See February 2020 VA correspondence. As of this date, the requested Form has not been received. The Board cannot verify the Veteran’s work status and / or previous work and educational history. Based on the evidence available in the record, the Veteran cannot be found unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. Referral for extraschedular consideration is not warranted for the Veteran’s service-connected CAD, PTSD, hearing loss, tinnitus, or ED symptoms. The symptoms do not show “such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b) (2016). The Veteran has alleged no uncompensated symptoms associated with his service-connected disabilities. The average impairment in earning capacity due to the Veteran’s service-connected disability symptoms are adequately compensated and accounted for in the Veteran’s schedular rating. See Thun v. Peake, 22 Vet. App. at 115. Period from January 21, 2020 to October 12, 2020 As of January 21, 2020, the Veteran’s CAD rating was increased to 60 percent disabling. See November 2020 Rating Decision Codesheet. Combined overall rating for the Veteran was 100 percent from January 21, 2020 to October 12, 2020. The Board finds that the Veteran meets the rating requirements for consideration of a schedular TDIU from January 21, 2020 to October 12, 2020. See 38 C.F.R. § 4.16(a). However, there is no evidence from the Veteran or the record that he is unemployable due to a service-connected disability. A July 2020 PTSD VA examination concluded that the Veteran experienced, “Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and / or mood.” The Veteran indicated that he has a roommate and “works at night” to “avoid other people.” See July 2020 PTSD VA examination opinion. There is no evidence from the Veteran or in the record that the Veteran requires or is otherwise employed in a protected environment or is physically or mentally unable to perform his duties as a security guard. Ray v. Wilkie, 31 Vet. App. 58 (2019). While the Veteran makes a conscious choice not to interact with other people while assigned to work security at a hotel, there is no evidence from the Veteran or the record that accommodations are made to protect the Veteran from having to do so. See November 2018 Board hearing transcript. Moreover, to consider entitlement to individual unemployability, the law requires the Veteran provide a substantially complete application. The AOJ contacted the Veteran to request a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. See February 2020 VA correspondence. As of this date, the requested Form has not been received. The Board cannot verify the Veteran’s work status and / or previous work and educational history. Based on the evidence in the record, the Veteran cannot be found unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. Referral for extraschedular consideration is not warranted for the Veteran’s service-connected CAD, PTSD, hearing loss, tinnitus, or ED symptoms. The symptoms do not show “such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b) (2016). The Veteran has alleged no uncompensated symptoms associated with his service-connected disabilities. The average impairment in earning capacity due to the Veteran’s service-connected disability symptoms are adequately compensated and accounted for in the Veteran’s schedular rating. See Thun v. Peake, 22 Vet. App. at 115. Period from October 12, 2020 From October 12, 2020, the combined overall rating for the Veteran decreased to 90 percent, to include PTSD, rated as 70 percent disabling, and CAD, rated as 60 percent disabling. See November 2020 Rating Decision Codesheet. The Board finds that the Veteran meets the rating requirements for consideration of a schedular TDIU from October 12, 2020. See 38 C.F.R. § 4.16(a). However, there is no evidence from the Veteran or the record that he is unemployable due to a service-connected disability. An October 2020 VA audiological examination indicated that the Veteran’s hearing loss symptoms improved. See November 2020 Rating Decision Codesheet. During the examination, the Veteran stated, “I have a job at night, but I don’t work with people because I can’t work with people.” See October 2020 VA examination report. In October 2020, the Veteran was examined for heart conditions. The VA examiner opined, “The Veteran’s condition affects his ability to perform strenuous activities such as lifting, pulling, pushing, or brisk walking which can negatively impact occupational and employment activities.” See October 2020 Heart Conditions VA examination opinion. There is no evidence from the Veteran or in the record that the Veteran requires or is otherwise employed in a protected environment or is physically or mentally unable to perform his duties as a security guard. Ray v. Wilkie, 31 Vet. App. 58 (2019). While the Veteran makes a conscious choice not to interact with other people while assigned to work security at a hotel, there is no evidence from the Veteran or the record that accommodations are made to protect the Veteran from having to do so. See November 2018 Board hearing transcript. Moreover, to consider entitlement to individual unemployability, the law requires the Veteran provide a substantially complete application. The AOJ contacted the Veteran to request a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. See February 2020 VA correspondence. As of this date, the requested Form has not been received. The Board cannot verify the Veteran’s work status and / or previous work and educational history. Based on the evidence in the record, the Veteran cannot be found unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. Referral for extraschedular consideration is not warranted for the Veteran’s service-connected CAD, PTSD, hearing loss, tinnitus, or ED symptoms. The symptoms do not show “such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b) (2016). The Veteran has alleged no uncompensated symptoms associated with his service-connected disabilities. The average impairment in earning capacity due to the Veteran’s service-connected disability symptoms are adequately compensated and accounted for in the Veteran’s schedular rating. See Thun v. Peake, 22 Vet. App. at 115.   Conclusion Based upon the foregoing evidence, the Board concludes that the Veteran’s service-connected conditions do not prevent him from securing or following a substantially gainful occupation, consistent with his history, education, skill, and training. While the Veteran’s service-connected conditions have the potential to functionally impact his employment, as indicated in the July 2020 VA examination, the standard under 38 C.F.R. § 4.16(a) is whether the disabled person is unable to secure or follow a substantially gainful occupation. When he wasn’t caring for his spouse, the Veteran has always done so. According to the Veteran, he has never displayed performance issues, been disciplined, nor has he experienced interpersonal problems at any point during his work history. The Veteran chose to remain unemployed when he was laid off from work circa 2010 to care for his spouse. Income for the Veteran remained above established poverty thresholds, except for the tax year 2012. Although not determinative in and of itself, the Board has considered whether the Veteran’s employment and income is considered marginal. There is no evidence from the Veteran or in the record that his income is marginal. In order to improve his mental health, the Veteran chose to return to work once his spouse passed away in 2016, indicating a desire to do so in 2015. Given the Veteran’s history, education, skill, and training, he has always been able to secure and follow substantially gainful employment in an unprotected work environment. Further, to consider entitlement to individual unemployability, the law requires the Veteran provide a substantially complete application. The AOJ contacted the Veteran to request a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. See February 2020 VA correspondence. As of this date, the requested Form has not been received. The Board cannot verify the Veteran’s work status and / or previous work and educational history. Based on the evidence in the record, the Veteran cannot be found unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. There is no evidence that his service-connected conditions limited his work to the degree required for a TDIU. A referral to the Director, Compensation Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b) is not warranted. The Board finds that the current evaluation ratings accurately reflect the elements of the Veteran’s disability picture. Therefore, a preponderance of the evidence is against a finding that the Veteran’s service-connected conditions preclude all forms of substantially gainful employment, considering history, education, skill, and training. Accordingly, the Veteran’s claim for a TDIU is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.