Citation Nr: 21010436 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-41 980 DATE: February 24, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1998 to February 2005. This case came before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board subsequently remanded the matter to issue a supplemental statement of the case (SSOC) and to obtain vocational rehabilitation records relevant to the issue of entitlement to TDIU. A SSOC was issued to Veteran and such records are now part of the record. The claims are now before the Board for appellate adjudication. 1. Entitlement to a total disability rating based on individual unemployability (TDIU). As of February 2015, the appellant has a combined evaluation of 100 percent. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the 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 this case, the Veteran meets the minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for consideration of a TDIU on a schedular basis, as service connection prior to February 26, 2015 is in effect for PTSD, rated as 70 percent disabling; mild intermittent radiculopathy of left lower extremity, rated as 10 percent; radiculopathy left lower extremity associated with degenerative disc disease of the lumbar spine, rated as 10 percent, radiculopathy right lower extremity associated with degenerative disc disease of the lumbar spine, rated as 10 percent, intervertebral disc syndrome, rated as 10 percent; migraine headaches, rated as noncompensable and lumbar scar associated with degenerative disc disease of the lumbar spine, rated as noncompensable. The combined evaluation is 80 percent as of May 2010, 90 percent as of November 2012 and 100 percent as of February 26, 2015. 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 shall be rated totally disabled. The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also 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 recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Board recognized that the Veteran reported that he felt that he came close to losing his job because of his PTSD on a VA 21-4138 submitted May 2010. Veteran previously worked as a police officer from 2007 to 2013. He then was hired as an armed protective service agent in 2015, but was not able to maintain the position as of 2016. In July 2016, Veteran completed a skydiving course and was offered multiple positions at multiple drops as a skydiving professional. Veteran elected to reject these offers due to the need for specialized training and equipment. In 2019 Veteran did a short job delivering items to an Amazon warehouse. With respect to the Veteran’s PTSD, the Board acknowledges the Veteran’s report that he is not able to maintain gainful employment due to his PTSD to include his ease to irritate, concentration problems and interpersonal issues. The Board further notes that the Veteran reported migraines occurring daily as a result of his PTSD in Statement in support of his claims. The VA notes that VA doctor remarked “Patient unemployability is caused by physical problems as well as PTSD. Primary Physical”. See, e.g., December 2013 VA examination report. A March 2014 private medical opinion was issued stating Veteran’s core functions, judgments, interpersonal relationships, impulse control and attention to detail are all significantly impaired and that Veteran is unable to work at any job for the foreseeable future. However, this opinion and VA remark do not provide much probative value in favor of the Veteran. The private medical opinion does not provide symptoms that explain his medical opinion. The remark was made in 2013, but an earlier 2013 VA examination disproves the probative value. The VA examination states that the Veteran has functional impairment but can perform light physical or sedentary employment. The VA examiner summarized the Veteran’s level of occupational and social impairment as “reduced reliability and productivity” rather than any more severe or complete impairment classification. Regarding the Veteran’s back/spine issues, the Board notes that Veteran reported being out of work twice due to back injuries starting 7/3/09 to 10/14/10 and 10/12/12. Also, the Board notes that Veteran had spine surgery 9/15/09 and claimed he would be needing another surgery for his back. See, e.g., 2012 VA Form 21-8940. While the Board acknowledges Veteran’s report of back injuries, such symptoms do not preclude substantial and gainful employment even when considered in the aggregate with Veteran’s PTSD. Further while a private medical opinion stated that Veteran’s back injuries result in severe mobility problems and that he is unable to work any job, the medical opinion fails to provide much probative value upon the record. See, e.g., December 2014 Medical Treatment Record. Specifically, the medical opinion did not provide symptoms or rational to correlate the medical opinion. An opposing VA medical examination reported occupational and social impairment with reduced reliability and productivity, but total impairment was not shown. See, e.g., November 2013 VA Medical Records. A January 2013 VA examination concluded that Veteran was limited to light physical or sedentary employment and was limited to moderate activities. After Veteran left his job as an armed service agent, he reported he completed his first Tandem Skydive in 2016. Veteran reported that he had completed over 900 free fall skydives and had been offered multiple job positions at multiple drop zones as a skydiving professional. See, e.g., March 2018 Correspondence. Further in February 2019, a VA doctor who had been treating Veteran for lumbar complaints since 2010, medically cleared Veteran to engage in vocational rehabilitation for self-employment. The VA doctor only limited him to not lifting more than 30 pounds. Based on the foregoing, while the Veteran’s symptoms from his psychiatric disorder and back/spine disorders affect his employability and indicate some impairment, the Board finds that these disabilities do not render the Veteran unable to secure or follow substantially gainful occupation. Indeed, the Veteran was gainfully employed until 2013 and while he evidenced back/spine and PTSD impairment symptoms when working, such systems were not of such severity to preclude substantial gainful employment prior to February 26, 2015. The Board also observes that the Veteran has submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based upon Unemployability in support of his TDIU claim. See, e.g., January 2013 VA 21-8940. However, the Veteran has not returned a completed application form. The Board notes that claimants have an obligation to assist VA in the development of their claim. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) (“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”). The Board’s decision to not remand the appeal to obtain this completed form is supported by the fact that the AOJ made a sufficient attempt to obtain the requested information. The Board observes that the March 2015 VA examination indicates that the Veteran at least graduated from high school. Even with consideration of the Veteran’s educational background, the evidence simply does not show that the Veteran would be unable to work in any form of substantial gainful employment as a result of his service-connected disabilities. There is no indication in the examination reports or other evidence of record that there are any restrictions on the Veteran’s ability to accomplish tasks as a result of the service-connected disabilities such that he would not be able to maintain substantial gainful employment. The Veteran has service connection for multiple disabilities to include PTSD, the lumbar spine, cervical spine, radiculopathy, left knee, tinnitus, hearing loss disability, scars, infections and migraine. The combined evaluations have been 80 percent, 90 percent and 100 percent. However, although the 21-8940 indicated the end of employment in 2012, other evidence suggests that there has been employment after such date. There was a request for clarification and a request for a more recent 21-8940 and the Veteran did not comply. The decision to refuse to submit the forms prevents the VA from making a meaningful determination regarding on-going employment and whether such employment is gainful. The fact that the Veteran participated in skydives reflects that the orthopedic issues would not impact employability. The fact that he may have been offered employment as an instructor again establishes a belief that service-connected disabilities did not prevent obtaining and retaining substantially gainful employment. We again note the decision to not complete certain forms render further discussion of the ability to obtain and retain substantially gainful employment meaningless. The duty to assist is not a one-way street or a blind alley. Here, the actual history of employment is seriously in doubt to includes types of employment and how long such employment lasted. The medical statements that imply an inability to engage in substantially gainful employment may be at odds with the facts. The Board shall not guess and the benefit sought on appeal is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Konieczny, Adam 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.