Citation Nr: 21011446 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-15 815A DATE: March 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT During the entire period on appeal, the Veteran did not meet the schedular criteria for a TDIU rating, and referral for extraschedular consideration is not warranted because the preponderance of the evidence indicates that the Veteran’s service-connected disabilities alone do not render him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1984 to November 1988, April 1993 to April 1999, May 2004 to May 2005, and November 2006 to May 2008. This matter returns to the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Phoenix, Arizona. By way of background, the Veteran filed a service connection claim for lumbar spine degenerative joint disease which was granted in a February 2013 rating decision and assigned a 10 percent disability rating effective April 12, 2011. The Veteran timely appealed bringing the matter to the Board. In a November 2019 decision, the Board denied an increased rating for the Veteran’s lumbar spine disability while also inferring a TDIU claim from the record. The Board remanded the Veteran’s inferred TDIU claim for additional development. The RO denied the Veteran’s TDIU claim in a June 2020 rating decision returning the matter to the Board. As will be discussed in more detail below, the Board finds substantial compliance with the November 2019 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to a TDIU rating due to service-connected conditions is denied. The Veteran contends his service-connected disabilities render him unable to obtain or maintain substantially gainful employment. The Board finds a TDIU rating is not warranted. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. As previously mentioned, the Board inferred the Veteran’s TDIU claim from the record as part of the November 2019 decision based on the Veteran’s indications that his service-connected disabilities impact his ability to perform his occupation as a truck driver. See November 2019 Board decision; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is currently service-connected for generalized anxiety disorder rated at 30 percent disabling effective January 13, 2017; lumbar spine degenerative joint disease at 10 percent disabling effective April 12, 2011; left lower extremity sciatic nerve paralysis associated with lumbar spine degenerative joint disease at 10 percent disabling effective June 25, 2013; right lower extremity sciatic nerve paralysis associated with lumbar spine degenerative joint disease at 10 percent disabling effective June 25, 2013; gastroesophageal reflux disease with Barrett’s esophagus at 10 percent disabling effective January 13, 2017; and hypertension at 0 percent disabling effective January 13, 2017. See June 2020 rating codesheet. The Veteran has not met the schedular criteria for a TDIU rating at any time during the period on appeal. Even considering the Veteran’s lumbar spine degenerative joint disease together with bilateral lower extremity sciatic nerve paralysis as disabilities resulting from one common etiology, the Veteran does not have a disability rated at 60 percent or more or at least one disability ratable at 40 percent. Thus, the Veteran does not meet the schedular criteria for a TDIU rating at any time during the period on appeal. 38 C.F.R. § 4.16. If a claimant does not meet the threshold criteria, a TDIU rating may still be assigned but on a different basis. The VA has established 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.  38 C.F.R. § 4.16(b). The rating boards are required to submit all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director for the Compensation Service for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board’s sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence showing the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Therefore, the Board will consider whether referral for extraschedular TDIU consideration is warranted during the entire period on appeal. For reasons outlined below, the Board finds referral is not warranted because the evidence at all times does not show the Veteran was unable to maintain or obtain a substantially gainful occupation solely by reason of service-connected disabilities. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray, 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. In compliance with the November 2019 remand requests, the RO provided the Veteran with the required guidance on how to support his TDIU claim, including providing him with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability as well as a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. In fact, the RO sent two correspondence to the Veteran, one in December 2019 and another in April 2020. To date, the Veteran has not submitted either form. Indeed, the Veteran’s representative acknowledged the Veteran has not submitted a VA Form 21-8940. Although failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to the Veteran’s complete employment history, educational history and training, and income information necessary to address a claim for TDIU. “The duty to assist is not 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.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board will consider the Veteran’s claim without the valuable information that would have otherwise been provided by these forms. Turning to the relevant evidence of record, the Veteran was first afforded a VA examination for his lower back condition in January 2013. He stated that he worked as a truck driver. See January 2013 VA examination. The Veteran reported “constant” lower back pain, capability of standing for 10 to 15 minutes, and capability of walking for one mile. Id. The examiner noted that the Veteran is independent in active daily living, doing household chores but experiencing aggravated lower back pain with yardwork and heavy work. Id. The examiner found that the Veteran’s lower back condition impacts his ability to work in the form of constant pain, limited standing for 10-15 minutes, and limited walking to one mile. Id. Treatment records from September 2013 indicate the Veteran does not experience difficulty mobilizing. See September 2013 VA treatment records. The Veteran complained of continued lower back pain that radiates through the lower extremities. See June 2013 VA treatment records. He described the lower back pain as sharp and worse when standing for more than five minutes. Id. The Veteran also reported feeling angry and “blow[ing] up over simple little things.” See July 2013 VA treatment records. In August 2013, the Veteran indicated he was requesting leave without pay from work while moving and expressed a desire to change jobs. See August 2013 VA treatment records. The Veteran reported being unemployed in January 2014. See January 2014 VA treatment records. In association with his increased rating claim, the Veteran stated that he has had to adapt to a new and less active lifestyle due to his health and physical conditions. See April 2014 VA Form 9. He stated that he does not have the ability to perform even the simplest of actions without suffering with intense pain for hours and sometimes days afterwards. Id. The Veteran has attempted to maintain physical conditioning with swimming, jogging, stretching, and specific weight training. Id. He stated that work involving bending, stooping, and standing in one position for more than five minutes causes his lower spine to become “very agitated” productive of pain for hours to days at a time. Id. The Veteran conveyed that his occupation as a truck driver has suffered due to his condition. Id. The Veteran was afforded a VA examination in April 2016 for his lower back disability. He conveyed continued lower back pain and an inability to lift heavy weights or walk long distances or do repetitive bending. See April 2016 VA examination. He said that he experiences flare-ups when he mows the lawn or if he lifts heavy objects. Id. The examiner opined that the Veteran’s back condition caused disturbance of locomotion and interferes with standing. Id. Functional impact on the ability to work was noted to be an inability to lift heavy weights, walk long distances, or do repetitive bending. Id. In May 2016, the Veteran reported experiencing chronic lower back pain and indicated he was working as a truck driver. See May 2016 VA treatment records. Throughout 2017, the Veteran consistently reported lower back pain. See June 2017 VA treatment records. In June 2017, the Veteran said he had a “good job.” See June 2017 VA treatment records. In July 2017, the Veteran stated that he was looking for a different truck driving route due to a desire to spend more time at home. See July 2017 VA treatment records. In August 2017, the Veteran reported that he lost his truck driving job due to company restructuring. See August 2017 VA treatment records. In the same month, the Veteran started a new job allowing him to transition from driving out of town to a local route in a contract job. See August and November 2017 VA treatment records. In June 2017, the Veteran was afforded a VA examination regarding hypertension. The examiner found that the Veteran’s hypertension does not impact his ability to work. Id. The Veteran was afforded a VA examination in August 2017 regarding his service-connected GERD. The examiner indicated the Veteran experiences multiple symptoms associated with his GERD including, but not limited to, reflux, pain, sleep disturbance, nausea, and vomiting. See August 2017 VA examination. Upon examination, the provider found that the Veteran’s GERD does not impact his ability to work. Id. During a 2017 VA examination for psychiatric disorders, the Veteran indicated that he has been driving a truck since separation from service. See August 2017 VA examination. He denied experiencing significant work issues other than a desire to be home more often. Id. The Veteran reported completing some college from 2011 to 2013. Id. His symptoms included depressed mood, anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment. Id. He was found to have variable disturbance of memory and concentration. Id. The Veteran reported experiencing panic attacks with increased stress and persistent issues with anger. Id. The examiner noted the Veteran winced in pain upon standing. Id. In February 2018, the Veteran reported that he had recently lost his truck driving job. See February 2018 VA treatment records. He stated that he received a speeding ticket while riding his motorcycle and was assessed points on his license. Id. When he informed his employer, he was told to resign. Id. In March 2018, the Veteran was noted to be unemployed but later reported doing some remodeling that “should be full-time.” See March 2018 VA treatment records. March 2018 treatment records reference the Veteran’s recent and remote memory was intact with “good” concentration. Id. In August 2018, the Veteran reported continued complaints of chronic lower back pain but indicated he exercises three or more times per week for less than 30 minutes in the form of walking. See August 2018 VA treatment records. Difficulties mobilizing were not found. Id. In October 2018, the Veteran stated that he was “working six days trucking” for a local gas company. See October 2018 VA treatment records. A provider indicated there was no evidence of gross cognitive deficits. Id. In May 2019, the Veteran was afforded a VA examination to determine the severity of his lumbar spine degenerative joint disease during which the examiner found that the Veteran’s lumbar spine condition does not impact his ability to work. See May 2019 VA examination. The Veteran also completed a peripheral nerves condition VA examination wherein the examiner opined that the Veteran’s bilateral lower extremity peripheral neuropathy produces numbness and paresthesias and/or dysesthesias, but it does not impact his ability to work. See May 2019 VA examination. In July 2019, the Veteran complained of pain in the left shoulder which was diagnosed as impingement syndrome. See July 2019 VA treatment records. The Board notes, however, consideration cannot be given to a claimant’s impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To date, the Veteran has not been service-connected for a shoulder disability. Thus, the Board cannot consider pain or impairments related to the left shoulder. With regard to the economic component of Ray, during the period on appeal, the evidence indicates that the Veteran has largely remained employed as a truck driver. In fact, the most recent report of employment in 2018 indicates the Veteran continues to work as a truck driver. The Board does acknowledge, however, periods of unemployment throughout the Veteran’s appeal period. His failure to submit a VA Form 21-8940 prevents the Board from determining the Veteran’s accurate employment history. See March 2010 VA examination. In any case, unemployment by itself, is not the dispositive issue. Rather, the pertinent question is whether the Veteran was capable of suitable employment. The record shows the Veteran completed high school and attended some college. He has extensive experience as a truck driver since service. In light of the evidence of record, the Board presumes the Veteran’s past employment history shows a history of full-time employment that was neither “marginal” nor in a “protected” work environment. While the Board acknowledges that the Veteran has experienced periods of unemployment, the Veteran self-reported one was due to company restructuring and the other was prompted by the Veteran’s receipt of a speeding ticket with points assigned to his license. Additionally, the Veteran reported a desire to change jobs at times in an effort to be home more. In fact, the record lacks any evidence of leaving work, missing work, or an inability to work due to service-connected conditions. Indeed, the Veteran’s treatment records largely reflect consistent and continued employment as a truck driver. With regard to the non-economic component of Ray, the Board finds the evidence does not show the Veteran’s service-connected disabilities preclude substantially gainful employment. At the outset, the Board notes the competent and credible medical evidence of record indicates the Veteran does not experience a functional impact on his ability to work due to hypertension or GERD. The VA examiner’s opined that neither condition nor the symptoms associated therewith impact the Veteran’s ability to work. This is supported by the medical evidence of record. More specifically, the Veteran’s treatment records lack any mention of, or complaints related to, hypertension or GERD having a physical impact on his ability to work. Rather, the physical and mental factors are related to the Veteran’s service-connected lower back condition and generalized anxiety disorder. Physical ability factors, such as lifting, bending, standing, and walking are clearly affected by the Veteran’s back disability. Specifically, the Veteran has competently and credibly reported that his back condition causes chronic pain, an inability to stand or walk for long periods of time, an inability to lift heavy weights, and being unable to stoop or bend for a long period of time. The preponderance of the evidence, however, shows that he is still able to perform his work duties as a truck driver. In fact, the Veteran has not reported that his back disability has impacted his ability to work in anyway including sitting or driving. Indeed, the record lacks any complaints of missing work due to pain or impacted performance due to pain. The Veteran stated, in support of his increased rating claim, that he is unable to perform even the simplest of actions without suffering with intense pain for hours and sometimes days afterwards. The medical evidence of record, however, fails to corroborate the severity of the Veteran’s statement. The Board finds the medical evidence of record more probative of the severity of the Veteran’s service-connected conditions than the Veteran’s statement made in connection with an increased rating claim. Regarding the mental ability factors, the record lacks evidence of memory or concentration problems while working. The Veteran’s treatment records reference both good memory and variable memory. The Veteran, however, has not asserted experiencing memory or concentration problems while working. The Veteran’s treatment records indicate that the Veteran experiences anger in his life, but he denied experiencing significant work issues other than a desire to be home more often. Id. Based on the available evidence of record, his job changes throughout the period on appeal did not relate to performance problems or have any relation to the mental ability factors under Ray. Again, the Veteran’s failure to complete VA Form 21-8490 has prevented VA from verifying or obtaining the Veteran’s employment history. The Veteran has not asserted, nor does the record at all suggest, that the Veteran’s anger has caused an inability to adapt to change or problems handling workplace stress, issues getting along with co-workers, or a change in productivity. Because the Veteran has failed to cooperate with VA’s attempts to develop the claim for TDIU that was raised by the record, and has not provided the information requested to permit adequate adjudication of the TDIU claim, the Board cannot conclude that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected conditions. Additionally, the evidence available for review indicates the Veteran maintains substantially gainful employment that is not marginal or protected. The Board notes the Veteran’s service-connected disabilities receive ratings that compensate his functional impairment. (Continued on the next page)   Thus, the Board finds the preponderance of the evidence fails to establish that the Veteran was unable to maintain substantially gainful employment due solely to his service-connected disabilities at any time during the period on appeal. Consequently, referral for an extraschedular TDIU rating is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.