Citation Nr: 21011081 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 13-31 628 DATE: February 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDING OF FACT Without additional information provided by the Veteran, the Board is unable to make a finding that he cannot obtain and/or maintain a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from January 1999 to January 2004. In December 2013, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In May 2014 and December 2020 Decisions, the Board remanded the issue herein. 1. Entitlement to a TDIU, to include on an extraschedular basis Schedular TDIU may be assigned when the schedular rating is less than total and it is found that the disabled person is unable to obtain or maintain 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). Extraschedular TDIU may be assigned in exceptional cases when the Veteran is found to be unemployable because of service-connected disabilities but does not meet the criteria for consideration of schedular TDIU; in such cases, the Board is precluded from adjudicating extraschedular TDIU without first seeking a referral to the Director of the Compensation Service. 38 C.F.R. §§ 4.16, 3.321(b)(1). To warrant referral for extraschedular consideration, the record must reflect some factor which takes the case outside the norm. The sole fact that the Veteran was unemployed or had difficulty obtaining employment is not enough to warrant a referral; rather, the ultimate question is whether the Veteran’s combined service-connected disabilities, despite falling short of the schedular criteria for TDIU consideration, nevertheless prevented him from being capable of the mental and physical acts required by employment. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether the Veteran is entitled to a TDIU, the Veteran’s nonservice-connected disabilities and advancing age may not be considered. 38 C.F.R. § 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Generally, marginal employment shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a); Faust v. West, 13 Vet. App. 342, 355-56 (2000) (“substantially gainful employment” for TDIU purposes is met where the annual earned income exceeds the poverty threshold for “one person,” irrespective of the number of hours or days actually worked and without regard to any prior income history). Marginal employment may also be held to exist on a facts-found basis, including when employment resulting in earned annual income exceeding the poverty threshold for one person was performed in a “protected environment such as a family business or sheltered workshop.” 38 C.F.R. § 4.16(a). In this case, the Veteran is currently service connected for: (a) degenerative arthritis of the spine with spinal stenosis (10 percent from January 2, 2004, and 40 percent since January 4, 2011); (b) pes planus (10 percent since January 2, 2004); (c) tinnitus (10 percent since January 2, 2004); (d) lumbar radiculopathy of the right lower extremity (10 percent since January 4, 2011); (e) lumbar radiculopathy of the left lower extremity (10 percent since January 4, 2011); and (f) hiatal hernia (0 percent since January 2, 2004). See January 2019 Codesheet. The Veteran’s combined evaluation for compensation is currently: 30 percent from January 2, 2004; and 60 percent since January 4, 2011. Id. Thus, the Veteran does not currently meet and has never met the criteria for schedular TDIU consideration. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, the Board must still analyze whether the Veteran is entitled to an extraschedular TDIU. The Veteran generally contends that his service-connected disabilities preclude him from obtaining and maintaining a substantially gainful occupation. However, the Veteran’s contentions about when he stopped working are inconsistent throughout the record and remain unclear to the Board. A July 2010 vocational rehabilitation record documented that the Veteran withdrew from WyoTech on June 18, 2010, because he found suitable employment. In a January 2011 Correspondence, the Veteran contended that his back condition had worsened and he was unable to work at that time. During the February 2011 VA examinations, the Veteran reported that he was unemployed. An April 2011 VA Memo indicates that VA mailed the Veteran a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), but he never returned the completed form. A September 3, 2011, Special Report of Placement documented that the Veteran began full-time employment as a “Body Repairer/Painter” on June 29, 2011, with duties of: repairing damaged bodies and body parts of industrial trucks using hand tools and power tools; sandblasting truck frames and parts; painting truck frames and parts; preparing vacuum containers for mounting on trucks; and assembling parts and equipment in order to complete and industrial vacuum truck. In a November 2011 Social Security Administration (SSA) Form 3396 (Work History Report), the Veteran reported his most recent employment as a full-time sandblaster from June 2011 to August 2011. In a February 2012 SSA Disability Determination Explanation, the provider also documented the Veteran’s most recent employment as a sandblaster from June 2011 to August 2011. An April 2012 SSA Decision found that the Veteran became disabled on August 1, 2011, due to his back condition with radiculopathy (service connected) and his carpal tunnel syndrome (not service connected). A January 23, 2012, vocational rehabilitation record documented that the Veteran was still employed (for over 8 months at that point) on a permanent, full-time basis as a body repairer/painter and had not reported any significant difficulties with his health, personal, or financial affairs; as such, VA’s vocational rehabilitation department deemed him occupationally rehabilitated. During the February 2013 VA examinations, the Veteran reported that he was unemployed. In an August 2013 Notice of Disagreement (NOD), the Veteran reported that he had been unemployed for nearly two years (which puts his unemployment onset sometime before August 2011). In December 2013, VA received a VA Form 21-8940 dated in January 2012, in which the Veteran reported, in pertinent part, that he: last worked full-time on October 1, 2011; left his last job because of his disability; and, in the past five years, worked in two jobs (as a resident service aide from August 2004 to October 2005 and as a customer service associate from November 2011 to December 2011). In August 2018, VA mailed the Veteran another VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), along with a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit) to give to former employers, and asked him to return the completed forms. In September 2018, VA received a VA Form 21-8940 dated in August 2018, in which the Veteran reported, in pertinent part, that he: last worked full-time on October 1, 2005; left his last job because of his disability; and had no employment in the past five years. During the October 2018 VA examinations, the Veteran reported that he was unemployed and had not worked since 2011. In December 2018, VA mailed the Veteran a letter explaining that it needed more information about his employment history. VA explained that it needed: (a) information about his last year of employment (employer’s name and address, type of work performed, hours worked per week, dates of employment, time lost from illness, and highest gross earnings per month for the last year that you were employed); (b) information about his last five years of employment in Block 17 of VA Form 21-8940; and (c) if possible, VA Form 21-4192’s completed by each of the employers identified on VA Form 21-8940. A December 2018 Report of General Information documented that the Veteran responded to the December 2018 VA letter by merely stating that he had not worked for the past six years, so there was no employment history to give. He did not subsequently submit any of the forms requested by VA in its December 2018 letter. Notably, based on the Veteran’s report, it puts his unemployment onset sometime around December 2012. In a January 2019 NOD, the Veteran reported that he had been unemployed for the last six years (which puts his unemployment onset sometime around January 2013). During the March 2020 VA examination, the Veteran reported that he was unemployed. In June 2020, VA mailed the Veteran another letter explaining that it needed more information about his employment history. VA explained that, despite the Veteran’s December 2018 response, it still needed him to fill out a VA Form 21-8940 with updated information including his employment history for the last five years he worked, regardless of how long ago that employment was. Again, the Veteran did not subsequently submit the requested form. Based on the evidence above, the Board finds that the Veteran has not provided enough employment information to allow the agency of original jurisdiction (AOJ) to sufficiently develop his claim. Specifically, as delineated above, the Veteran’s contentions of unemployment onset are inconsistent throughout the record and remain unclear to the Board. Among the other inconsistencies described above, the Board highlights that: (a) the Veteran reported to SSA that he stopped working full-time in August 2011; (b) he reported in the January 2012 VA Form 21-8940 that he stopped working full-time in October 2011; (c) he reported in the August 2018 VA Form 21-8940 that he stopped working full-time in October 2005; and (d) a January 23, 2012, vocational rehabilitation letter documented that the Veteran had been occupationally rehabilitated, had been working in a full-time, permanent job for over 8 months, and had not reported any significant difficulties with his health, personal, or financial affairs. Crucially, the AOJ attempted to obtain more employment information from the Veteran through December 2018 and June 2020 letters; however, to date, the Veteran has not provided the necessary information to clarify these discrepancies. Without more employment information (employers’ names and addresses, types of work performed, hours worked per week, dates of employment, time lost from illness, and highest gross earnings per month for the last year of employment), the Board, for example, is unable to determine whether any employment was marginal, which is part of the TDIU analysis. As such, the Board finds that the record evidence, as it exists today, is insufficient to grant the Veteran’s claim; further, the Board finds that the AOJ properly notified the Veteran and his representative of the evidence still needed to develop the claim (for example, the June 2020 letter was mailed to both the Veteran and his representative, and was not returned as undeliverable). Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (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 evidence). Accordingly, without additional information provided by the Veteran, the Board is unable to make a finding that the Veteran cannot obtain and/or maintain a substantially gainful occupation due to his service-connected disabilities; thus, TDIU must be denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.