Citation Nr: 21013192 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-32 525 DATE: March 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence of record is against finding that the Veteran has been rendered unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1998 to July 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, this matter was previously before the Board in July 2020, at which time the Board remanded the matter for additional evidentiary development. The Board remand instructed the AOJ to undertake any appropriate efforts to clarify the Veteran’s dates of employment and income from any employment (intermittent, part-time, full-time, self-employment, etc.) as well as his current level of education and training during the period on appeal. In September 2020, the AOJ sent a letter to the Veteran requesting dates of employment, income from any employment, and current level of education and training during the appeal. The letter informed the Veteran that the claim would be adjudicated based on the evidence of record if he did not respond within 30 days. In October 2020 the AOJ documented two attempts to telephone the Veteran. To date, the Veteran has not provided the requisite information requested in the September 2020 letter. The AOJ proceeded to readjudicate the claim in an October 2020 Supplemental Statement of the Case. Through his representative in a January 2021 Informal Hearing Presentation it was acknowledged the requested information was not provided and presumably would not be provided. Thus, the Board finds that there was substantial compliance with its remand instruction. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the “duty to assist is not always a one-way street” and the Veteran is obliged to cooperate in the development of his pending claims. Wood v. Derwinski, 1Vet. App.190, 193 (1991). Therefore, the Board will decide this matter based on the evidence of record. 38 C.F.R. §3.655(b). 1. Entitlement to a TDIU The Veteran asserts that his service-connected disabilities render him incapable of securing or following substantially gainful employment. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply 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. Id. The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment. Id. Attention should be given to the veteran’s history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.; see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Factors such as age or impairment by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Here, the Veteran is service-connected for obstructive sleep apnea (rated as 50 percent disabling from July 24, 2011), thoracolumbar spine IVDS (rated as 10 percent disabling from July 24, 2011 and 40 percent disabling from October 7, 2014,as granted herein), diabetes mellitus type II (rated as 20 percent disabling from July 24, 2011), tinnitus (rated as 10 percent disabling from July 24, 2011), IVDS-related left sciatica (rated as 10 percent disabling from July 24, 2011), right knee patellofemoral syndrome (rated noncompensable from July 24, 2011), left knee patellofemoral syndrome (rated noncompensable from July 24, 2011), left ankle strain (rated noncompensable from July 24, 2011), right ankle strain (rated noncompensable from July 24, 2011), right foot hallux valgus (rated noncompensable from July 24, 2011), left foot hallux valgus (rated noncompensable from July 24, 2011), bilateral pes planus with bilateral plantar fasciitis (rated noncompensable from July 24, 2011), allergic rhinitis (rated noncompensable from July 24, 2011), right wrist scar, status post cyst removal (rated noncompensable from July 24, 2011), scar, status post right shoulder laceration (rated noncompensable from July 24, 2011), onychomycosis (rated noncompensable from July 24, 2011), and pseudofolliculitis barbae (rated noncompensable from July 24, 2011). The Veteran meets the schedular requirement for a TDIU for the entire period on appeal, since he has a combined disability rating of 80 percent with at least one disability rated at 40 percent or higher. 38 C.F.R. §4.16(a). Thus, the remaining question is whether the Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation. On the VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), received on October 7, 2014, the Veteran reported that he worked as a trainee at a gas plant from July 2012 to November 2013 and that he became too disabled to work in November 2013. He reported this his lumbar back condition and sleep apnea were his primary disabilities. He reported two years of a college education. A VA Form 21-4192 (Request for Employment Information) dated October 3, 2014, confirmed the Veteran was working as a gas plant trainee from June 2012 to November 2013. He was allowed to sit and rest routinely to prevent further aggravation of his disabilities and he was excused from heavy work. The reason for termination of his employment was that he was unable to perform his duties due to disabilities. VA records from May 2015 indicate the Veteran was attending school. In a July 2015 statement in support of the claim, the Veteran confirmed he was taking college courses. VA records from May 2018 indicate the Veteran is “not working right now as he just graduated from college. VA records from August 2018 indicate the Veteran “has been busier lately from training at his new job and working over-time.” VA records from October 2018, November 2018, February 2019, March 2019, April 2019, May 2019, July 2019, and October 2019 indicate the Veteran is employed. VA medical records indicate that he is employed as a Clerk at the City Hall of Box Elder, South Dakota, and indicate that he works at a desk. Since receipt of the claim for a TDIU, the evidence shows that the Veteran attended and graduated from college and then obtained employment. The Board has attempted to obtain clarification from him as to the nature of his employment, to include the dates of that employment and his income level, which would aid in determining whether or not the employment is considered marginal employment. However, he has not responded to those requests. The Veteran’s sleep apnea causes daytime fatigue. A March 2015 VA examination report indicated it had no functional impact on the ability to work. A May 2011 examination shows the Veteran reported that it affects daytime functioning by also making it hard to concentrate and stay focused. At that examination, he reported that his sleep apnea results in no desk or computer work, unable to drive long distances or sit for long periods of time. To the extent that the Veteran has asserted that his sleep apnea prevents desk or computer work given its functional effects, the Board finds more probative the fact that the Veteran is employed in a clerical job working on a computer at Box Elder, South Dakota, City Hall. The Veteran’s musculoskeletal disabilities and their associated neurological impairments cause difficulty with prolonged walking, standing, sitting bending, and heavy lifting. He was terminated from his prior job as a gas plant trainee due to the inability to perform his duties due to his disabilities. A March 2015 VA examination report indicates that they affect his disability to perform strenuous work and medium or heavy lifting. A May 2011 VA examination report shows that the Veteran’s tinnitus prevents him from being able to sleep without some sort of background noise, but his occupational functioning is not otherwise affected. The Veteran’s diabetes does not affect his occupational functioning. The Veteran’s other service-connected disabilities do not affect his occupational functioning in ways not already described above. Given the forgoing, the Board finds that the Veteran has obvious physical impairments that would prevent him from working physical occupations as he has done in the past but they would not prevent him from sedentary type work. “Sedentary” means “doing or requiring much sitting” or “not physically active.” Merriam-Webster’s Collegiate Dictionary 1123 (11th ed. 2012). It also means “1. Sitting habitually; of inactive habits. 2. Pertaining to a sitting posture.” Dorland’s Illustrated Medical Dictionary 1687 (32nd ed. 2012). Such definitions are consistent with the Board’s understanding of this term as applied to the Veteran and with how examiner’s have described his occupational functioning. Moreover, it is also consistent with his current employment, which is clerical work behind a computer. The Veteran’s service-connected disabilities would not significantly affect his mental ability to perform employment consistent with his job and educational history. As noted above, the Veteran asserted that his sleep apnea would cause difficulty concentrating, staying focused, and staying awake. Thus, he believed he could not work a computer or desk job. However, the record indicates that he is in fact employed in such a job, and the Board finds that more probative than his statements. (Continued on the next page)   The evidence fails to show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities as he would be able to perform, and does in fact perform, a sedentary-type job of clerical work. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Mike Sobiecki Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.M. Edwards, 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.