Citation Nr: 21013277 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-29 710 DATE: March 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability is denied. FINDING OF FACT The Veteran has not been found to be unable to obtain and sustain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1987 to April 1994. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously remanded by the Board in August 2015, January 2018, and October 2020 and has since been returned for further adjudication. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and 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). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected degenerative lumbar spondylosis, chronic left shoulder strain, bilateral lower extremity radiculopathy, tinnitus, hypertension, and left shoulder scar as of March 17, 2019. 38 C.F.R. § 4.16(a). Military personnel records reflect the Veteran’s military occupation specialty (MOS)/rating was that of steam propulsion maintenance supervisor. On his February 2020 application for unemployability he reported his service-connected disabilities and his non-service-connected anxiety prevented him from following a substantially gainful occupation. The Veteran reported completing an associated degree in information technology. He reported he last worked full-time in May 2019 as a senior technical support. This application states that the Veteran was continuously employed up to this point. The Veteran presented for a VA examination in December 2003, October 2005, February 2012, and September 2019 to assess the current severity of his service-connected shoulder disability, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported pain and difficulty lifting his arm. When asked to describe the functional impact the Veteran’s disability has on his ability to work the examiner reported pain is constant, he experiences difficulty completing daily tasks due to constant pain, difficulty reaching over head, pain worsens with weight bearing, and that he is unable to do some job tasks due to condition. The Veteran presented for a VA examination in January 2013, September 2019, and March 2020 to assess the current severity of his service-connected back and radiculopathy disabilities. At the March 2020 examination, the examiner stated that the Veteran would be required to work in a seated position with breaks to walk and stand every 30 minutes. The Veteran’s tinnitus, hypertension, and scar were not found to impact his ability to work. In September 2015, a Social Work and Industrial survey was completed and determined that the Veteran was unable to work since June 2014 due to his pain. This issue was submitted to the Director for Compensation in August 2017 to determine if the TDIU on an extraschedular basis was warranted. The Director stated that the evidence does not show marked interference with employment or frequent periods of hospitalization. During two VA examinations in March 2020 to assess the Veteran’s ability to work, the Veteran was found to be able to perform sedentary work and light work. Treatment records are not in significant conflict with findings during VA examination. In fact, , a medical treatment record dated in July 2020 documented that the Veteran had not worked since September 2019. Taken as a whole, the Veteran’s symptoms do not suggest he is unable to obtain and maintain employment. Given the Veteran’s education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers the Board does not consider this level of impairment as one that would preclude employment. The Board considered the Veteran’s lay statements that his pain and anxiety make it difficult to work. However, the examiners have not found that his musculoskeletal disabilities preclude employment and he is not service connected for any psychiatric disorder. The Board acknowledges his physical limitations would make it difficult to work. However, after review of the evidence of record the Board finds that the Veteran’s functional limitations would not preclude employment that did not involve walking for extended periods of time, lifting heavy objects, or involve strenuous physical activities. Overall, the Veteran is qualified through education and experience for a wide variety of positions, many of which would not require strenuous physical activity. He is more than qualified for such positions given that he has an associated degree in information technology and last worked as a senior technical support. This type of work would also produce income above the poverty threshold. Furthermore, in August 2015, January 2018, and October 2020 Board decisions, the Board remanded the TDIU claim for further development. In the January 2018 and October 2020 Board decisions, the Board remanded the claim for a TDIU so that the Veteran could provide his work history. While in January 2019 VA Form 21-8940, the Veteran reported that he worked in various support roles at employers, he did not provide his dates of employment. He also reported that “his employer does not like” that he has work limitations due to his disabilities, inferring that he was still employed. In a March 2020 VA Form 21-8940, he reported that he last worked fulltime in May 2019. He also reported that he was unable to find employment despite applying for well over 60 positions. In November 2020, the Veteran was requested to complete a new VA Form 21-8940. As of the date of this decision, the Veteran has not completed and returned the requested form. In pursuing a claim, a claimant has a responsibility to cooperate in developing all facts pertinent to the claim, VA’s duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board cannot be sure of the circumstances surrounding Veteran’s current employment status. The mere fact that a veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough to warrant a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). (Continued on the next page)   Based on all the evidence, the Board finds that the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Thus, a TDIU is not warranted. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, Attorney Advisor 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.