Citation Nr: 21010980 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-33 431 DATE: February 26, 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 has a combined disability rating of 80 percent from December 1, 2013 and 90 percent from September 27, 2017 and, combining his service-connected orthopedic disabilities, has a single service-connected disability evaluated as at least 40 percent disabling; however, the evidence does not indicate that he is rendered unable to secure or maintain substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1993 to November 2013. In July 2020, the Board found that the issue of entitlement to a TDIU had been raised in the course of his appeal for increased ratings for his back and right knee disabilities and remanded the claim to the RO to provide the Veteran with Veterans Claims Assistance Act (VCAA) notice regarding the evidence necessary to substantiate a claim of entitlement to a TDIU, as well as an opportunity to complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and to obtain a completed VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, for all employers identified by the Veteran in the VA Form 21-8940. The development requested having been completed, the case is now appropriate for appellate review. Entitlement to a TDIU In his June 2014 notice of disagreement, the Veteran stated that both of his knees are extremely painful and unstable. He further stated that he does not have the full range of motion of his knees and his back has more limited motion than described in the April 2014 VA examiner’s report. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. 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, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). 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 be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a “living wage.” See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his 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. 361. 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). In this case, the Veteran is service-connected from December 1, 2013 for migraines, evaluated as 30 percent disabling; residuals status post C5-6 fusion of cervical spine, evaluated as 20 percent disabling; status post closed fracture medical condyle and torn meniscus right knee, evaluated as 20 percent disabling; degenerative arthritis of the spine, evaluated as 10 percent disabling and 20 percent disabling from January 11, 2016; left shoulder degenerative joint disease, evaluated as 10 percent disabling and 20 percent disabling from September 27, 2017; status post-surgical repair of partial tear rotator cuff of right shoulder, evaluated as 10 percent and 20 percent disabling from September 27, 2017; radiculopathy of right lower extremity (sciatic nerve), evaluated as 20 percent disabling from December 12, 2019; degenerative arthritis left knee strain, evaluated as 10 percent disabling; tinnitus, evaluated at 10 percent disabling; radiculopathy of right lower extremity, evaluated as 10 percent disabling; and radiculopathy of left lower extremity (sciatic nerve), evaluated as 10 percent disabling from December 13, 2019. The Veteran is also service-connected for mallet deformity of right hand middle finger, degenerative joint disease right ankle, erectile dysfunction, residual scar status post of c-spine surgery, and residual scar status post-surgery of right shoulder, right knee and lower back, each evaluated as noncompensably disabling. Thus, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are met because the total combined disability rating is in excess of 70 percent, and combining all disability ratings affecting a single body system (orthopedic), the Veteran has a single disability rated at least 40 percent. After a review of all the evidence, the Board concludes that a TDIU is not warranted, as the weight of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful occupation due to his service-connected disabilities. There is scant information in the claims file regarding the Veteran’s employment history. Pursuant to the Board’s remand, in July 2020, the RO sent the Veteran and his representative a letter asking him to complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and have his former employer(s) complete a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Neither form has been completed or returned to VA. In October 2020, the RO also sent a letter to the Veteran and his representative detailing the requirements for substantiating a claim of entitlement to a TDIU. No response was received from the Veteran. The RO denied entitlement to TDIU in a November 2020 rating decision and November 2020 Supplemental Statement of the Case (SSOC), explaining that, while the schedular rating criteria for consideration of a TDIU under the provisions of 38 C.F.R. § 4.16(a) were met, the Veteran did not furnish a VA Form 21-8940 or any information necessary to further consider his claim. The Veteran and his representative were notified of this decision in a letter dated November 13, 2020 for the SSOC and November 18. 2020 for the rating decision. The Board acknowledges the November 2020 SSOC and the November 2020 rating decision made a favorable finding of fact that Veteran was not working, however those are contradicted by the evidence of record. There is insufficient evidence of record to support that the Veteran is not working. Rather, as described below, the Veteran’s private treatment records and the June 2019 VA headache examination reveal that the Veteran was working through at least June 2019. To date, neither the Veteran nor his representative have submitted a VA Form 21-8940, any information regarding the Veteran’s current or previous employment, or provided any explanation as to why a VA Form 21-8940 has not been completed or why any relevant information has not been provided. The Veteran’s representative, in a February 2021 Brief, noted that the Veteran had not responded to the October 2020 letter requesting information necessary to substantiate his claim, but did not explain the lack of response or provide the information requested in those forms. The October 2020 letter that enclosed the forms stated that the Veteran, if he believed he qualified, should complete, sign, and return a Form 21-8940. The November 2020 rating decision stated that a TDIU was denied and that a completed Form 21-8940 had not been received. There is no evidence that the Veteran and his representative did not receive the forms or the rating decision; indeed, the Veteran’s representative acknowledged receipt in the February 2021 Brief. The Veteran has had several months to supply a Form 21-8940 after being sent a copy of the form by the RO. He and his representative have been notified by letter and a rating decision that TDIU was denied and that a completed Form 21-8940 had not been received. The Board acknowledges that there is evidence of record demonstrating that his service-connected disabilities impact his employment. For instance, the April 2014 VA spine examination report indicates that, as a result of the service-connected spine condition, the Veteran’s ability to perform physical labor such as running, walking, standing, bending, stooping, lifting, squatting, kneeling, pushing, and pulling may be impacted. The April 2014 VA headache examination noted that the Veteran’s condition may affect his ability to drive vehicles at work. In the June 2015 notice of disagreement, the Veteran stated that his knees are extremely painful and unstable. He also stated that he does not have full range of motion of his knees and it affects his daily activities. However, private treatment records associated with the claims file in September 2017 reveal the Veteran worked full-time throughout 2016 until at least the end of February 2017. At the June 2019 VA headache examination, the examiner noted that that Veteran reported that he takes 72 hours of time off per year from his job because of his migraines. In other words, the Veteran was working through June 2019. At the December 2019 VA back examination and VA peripheral nerve examination, the examiner noted the Veteran’s back condition limits prolonged sitting, standing, walking, lifting, bending, and squatting. At the January 2020 VA knee examination, the examiner found that the Veteran’s right knee range of motion was normal, but pain was noted on flexion and extension. Further, the examiner noted that his right knee disability limited his “ability to walk over half a mile and to use stairs, and he cannot run.” As noted above, the Board acknowledges that the Veteran’s service-connected disabilities impact him, as reflected by his combined 90 percent disability rating. However, there is a significant lack of evidence suggesting his disabilities render him unable to secure or follow substantially a gainful occupation. The Board notes that a VA Form 21-8940 contains information on employment and education necessary to adjudication of TDIU. As the Veteran has not submitted this information, the Board does not have all necessary information regarding the status of the Veteran’s current employment and education. There is no proof that the Veteran left his employment due to service-connected disability and there is little proof that he is incapable of substantially gainful employment. There is no evidence relating to his current or previous employment status. The Veteran and his representative have failed to provide VA with this necessary information by failing to provide a VA Form 21-8940. The Board is not denying the case for mere failure to file a form, but, rather, there was additional information that was needed. After a thorough review of the record, the Veteran has not reported that he is unable to secure or follow a substantially gainful occupation. The duty to assist a veteran in developing evidence is not always a “one-way street.” Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). A veteran must cooperate when he is asked for information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Otherwise, he denies VA evidence which might have helped establish his claim. Thus, there is insufficient evidence of record about the Veteran’s employment. If the Veteran feels his service-connected disabilities preclude him from securing or following a substantially gainful occupation, then he should submit a completed VA Form 21-8940 and any other information requested by VA. (Continued on the next page)   The evidence does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. The Veteran has provided no evidence regarding his employability, and what evidence there is does not suggest he is unable to secure or follow a substantially gainful occupation. The Board cannot determine if the Veteran is currently working based on the evidence of record. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim for TDIU is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, Associate 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.