Citation Nr: 21011641 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 12-04 987 DATE: March 2, 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 substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1971 to June 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2011 and February 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a video conference hearing in May 2017. This matter was previously before the Board in January 2018 and April 2020 when, in pertinent part, it was remanded for additional development. 1. Entitlement to TDIU. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Effective March 1, 2013, the Veteran has established service connection for total left knee arthroplasty, rated 60 percent disabling, and thus meets the percentage criteria for TDIU under 38 C.F.R. § 4.16(a). Effective August 6, 2018, he has also established service connection for left hip limitation of extension (secondary to service-connected total left knee arthroplasty), rated 10 percent disabling, as well as noncompensable ratings for impairment of the left hip and left hip limitation of flexion. The evidence shows that his employment history has included working at a dialysis center as a driver/laundry worker, working at a hospice for approximately six years as a supervisor for dietary management and housekeeping. Prior to that, his employment history includes working approximately twenty-five years as a machinist/general labor at a factory. See March 2012 VA hip and thigh conditions examination. The Veteran’s educational background is unknown, as is his current employment status. In the April 2020 Board Decision and Remand, it was instructed that the RO request the Veteran submit supporting lay statements as to the functional impairment of his service-connected disabilities on his ability to work, as well as to provide the Veteran a VA Form 21-8940 to allow the Board to have a complete picture of his employment history, educational background, and any special training/skills. The RO sent the Veteran a letter requesting the above-indicated information in April 2020; there has been no response to the letter. The Veteran’s representative has acknowledged receipt of the April 2020 letter and that there has been no response to the letter. See November 2020 Appellant’s Post-Remand Brief. The critical facts at this stage are clear. Since providing a VA Form 21-8940 in April 2020, the Veteran has not provided the information or VA forms necessary for VA to adjudicate his claim of entitlement to TDIU. Although the record contains some information regarding his employment history, the Veteran has not provided all of the information necessary to adjudicate his claim for TDIU, to include statements or documentation of the nature, duties, and responsibilities of his various periods of employment; statements or documentation of any accommodations he has been provided, and their nature and cause; supporting lay statements regarding the impact of his service-connected disabilities on his ability to work, or; his educational background. The Board is presented with a less-than-complete evidentiary picture. The Board acknowledges the Veteran’s statements and VA examiner’s opinions as to the functional impairment of his service-connected disabilities, such as that he can do light sedentary work, and that he experiences pain with prolonged standing and walking and would be more limited during flare-ups. See, e.g., July 2019 VA knee and lower leg conditions examination. However, based on the incomplete nature of the evidentiary picture, the Board has no recourse but to deny this claim on the merits as there is insufficient information and evidence to find that a preponderance of the evidence warrants awarding entitlement to TDIU at any point during the appeal period. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.