Citation Nr: 21010471 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 07-17 343 DATE: February 24, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not render her unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1985 to January 2006 in the United States Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. A TDIU is denied. In October 2017, the Board adjudicated a claim for a higher rating for a lumbar spine disability, which arose from an underlying claim for service connection that was filed in October 2005. The Veteran appealed the Board's decision on to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Court vacated the October 2017 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). The parties directed that on remand, the Board should consider whether a claim for a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) had been raised. In May 2020, the Board remanded the claim for a higher rating for the lumbar spine disability for development consistent with the Joint Motion. The Board added the claim for a TDIU to the appeal, and remanded it as inextricably intertwined. In October 2020, the Board adjudicated the claim for a higher rating for the lumbar spine disability, and remanded the claim for a TDIU in order to provide the Veteran a final opportunity to submit a VA Form 21-8940, Veteran’s Application for Increased Compensation for Unemployability. The Board noted that several previous attempts in this regard had been made. In October 2020, the RO again supplied her with the form and requested its completion. A response was not received from the Veteran. The Board thus finds there has been substantial compliance with the October 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). VA will grant disability compensation based upon individual unemployability (TDIU) when the evidence shows that the Veteran is precluded, by reason of his or her service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more 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. The Veteran has had a combined disability rating of 50 percent since February 1, 2006, 60 percent since June 6, 2007, 70 percent since May 1, 2017, and 80 percent since August 15, 2020. She is service-connected for the following twelve disabilities: cervical spine disability, left shoulder disability, lumbar spine disability, chronic sinusitis, abdominal scar, right lower extremity radiculopathy affecting the sciatic nerve, left lower extremity radiculopathy affecting the sciatic nerve, right lower extremity radiculopathy affecting the femoral nerve, left lower extremity radiculopathy affecting the femoral nerve, irritable bowel syndrome (IBS), left breast adenofibroma, and onychomycosis. See August 2020 Rating Decision Codesheet (most recent codesheet). Since May 1, 2017, the schedular requirements of 38 C.F.R. § 4.16(a) have been met as the Veteran’s combined disability rating was 70 percent or higher, and her cervical spine disability has been rated as 40 percent disabling since that date. Prior to May 1, 2017, the schedular criteria were not met. The Board has reviewed the exceptions in this regard set forth in 38 C.F.R. § 4.16(a), but none apply. Nonetheless, it is VA's policy that all Veterans who are unable to secure a substantially gainful occupation by reason of service-connected disabilities “shall be rated totally disabled.” See 38 C.F.R. § 4.16(b). The Court has held that the Board has no power to award a TDIU under 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director, Compensation Service (Director) for consideration of an “extraschedular rating”. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). While there has been no referral to VA's Director, Compensation Service, the Board will consider whether a remand for such referral is warranted. The Board must determine whether the Veteran's service-connected disabilities have precluded her from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage.”) Moore v. Derwinski, 1 Vet. App. 356 (1991). Initially, despite VA's repeated requests for the Veteran to complete VA Form 21-8940, the Veteran has not complied. 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. The form concludes with a series of sworn certification statements, and in endorsing it, a Veteran both attests to his/her employment status, and signals understanding of the TDIU benefit's incompatibility with substantially gainful work. Simply put, a completed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran's entitlement to a TDIU. The record does not reveal all of the information that a completed VA Form 21-8940 would have provided, including, for example, the Veteran’s maximum past salary and when it was earned, her attempts to obtain employment since becoming disabled, her work history, or her educational history. As she has not completed this form, VA's efforts have been frustrated in developing the claim. VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193(1991). The Board has thus attempted to obtain the best picture available of the Veteran’s employment history by a review of her statements and the remaining records. In March 2006, she stated that she could not work full-time. In a September 2007 VA treatment record, she reported that the last time she worked was in February 2006 as a certified radiation therapist. Her treatment records and VA examination reports also provide insight. She reported to an October 2005 VA examiner that she was working as a patient care radiation therapist, x-ray technologist, and had been in her position since 1995. In September 2007, she reported she had just started a new job and was working in a pain clinic. In February 2009, she requested laboratory studies so she could submit them to her employer. In records dated from October 2009 and November 2009, she was noted to be working as a radiological therapist. In March 2010, she was noted to work at the Audubon Center. In April 2019, it was noted that she was completing continuing education requirements. Based on these records, it appears the Veteran last worked in March 2010, at earliest. The inconsistencies demonstrated between her assertion that she last worked in 2006, and the treatment records indicating otherwise, renders her reports of being unable to work since 2006 not credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). On VA examination in December 2005 for the left breast adenofibroma, the examiner found the disability precluded her from performing normal physical training in the Air Force. The disability did not cause any lost time from work. On VA examination in December 2005 for the abdominal scar, the disability prevented her from performing full sit-ups. It did not cause any lost time from work. On VA examination in December 2005 for onychomycosis, the disability did not cause any functional impairment or result in lost time from work. On VA examination in December 2005 for the left shoulder, the disability affected her ability to perform push-ups, carry loads, and perform general activities. It did not cause any lost time from work. On VA examination in December 2005 for the cervical spine, the disability limited her ability to bear weight, stand for prolonged periods, and sit while looking down. The Veteran missed work approximately five times per year due to the disability. On VA examination in December 2005 for the lumbar spine, the disability precluded her from lifting heavy items or maintaining a fixed position for prolonged periods. She had not lost time from work due to the condition. On VA examination in December 2005 for sinusitis, the disability precluded her from wearing gas masks and breathing through the nose during exercise. It caused pressure on the teeth and constant headaches. The Veteran had missed work approximately four times per year due to the disability. On VA examination in December 2005 for IBS, the disability caused no functional impairment and did not result in any lost time from work. In an October 2007 vocational rehabilitation record, the Veteran’s vocational rehabilitation counselor found there was no evidence of significant restrictions on employability. In October 2008, action was suspended on her claim for vocational rehabilitation and employment services due to her noncompliance with required procedures. In a December 2014 VA treatment record, the Veteran’s physician noted that she enjoyed running and had recently run a marathon. On VA examination in May 2017 for the lumbar spine, the examiner found the disability precluded laborious jobs requiring lifting more than 15 pounds, or involving twisting of the back. She would also be unable to sit or stand for longer than 30 minutes without a break to stretch. On VA examination in May 2017 for the cervical spine, the examiner found she should avoid jobs requiring repetitive motion of the neck or lifting more than 15 pounds. On VA examination in August 2020 for the lumbar spine, the examiner found the Veteran would have difficulty pushing, pulling, lifting, sitting, standing for prolonged periods, walking, driving, and climbing ladders. The examiner characterized her neurological disabilities of the lower extremities as “mild.” The Court has defined “substantially gainful employment” as encompassing both an economic and a noneconomic component. 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran’s history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Here, the Board does not find that the economic component of Ray has been met for the entire appeal period, which stems from the October 2005 claim for a higher rating for the lumbar spine disability. Specifically, the record indicates that the Veteran worked through at least March 2010 as a radiation therapist. Medical records do not indicate that this work was marginal given that it did not occur in a protected environment or under other circumstances contemplated by 38 C.F.R. § 4.16(a). As for the noneconomic component, the Veteran’s educational background is unknown. However, she does have many years of work experience in the medical profession as a radiation therapist, x-ray technologist, and in a pain clinic, and has pursued continuing education in her profession. She does not have any service-connected disability causing a visual limitation. She does not have any service-connected disability causing an audiological limitation. While her service-connected disabilities cause limitations in lifting, bending, sitting, standing, walking, climbing, there have been no limitations shown in grasping, typing, or reaching. Her physical disabilities have been documented as causing, at most, nine days of work due to her disabilities combined per year. Her vocational rehabilitation counselor found no evidence of significant restrictions on employability. Moreover, despite her limitations in standing and walking, she ran a marathon in 2013. She does not have any service-connected disability causing a mental limitation. In short, when assessing the Veteran’s service-connected disability picture as a whole, which includes no visual limitations, no audio limitations, partial physical limitations with no impact on grasping, typing, or reaching, and no mental limitations, the preponderance of the evidence is against a referral for an extraschedular TDIU prior to May 1, 2017, or the award of a TDIU since that date. Rather, the ratings assigned for her disabilities are recognition of the occupational impairment they cause. The economic component of Ray has been only partially met, and the noneconomic component has not been met. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.