Citation Nr: 21013840 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 13-28 260A DATE: March 10, 2021 ORDER A total disability rating for compensation based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities are not shown to preclude the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1977 to May 1981.   TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), she still may receive a TDIU on an extraschedular basis if it is determined that she is unable to secure or follow a substantially gainful occupation by reason of her service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Veteran’s service-connected disabilities include a lumbar spine disability (20 percent from August 23, 2013), ler lower extremity radiculopathy of the sciatic nerve (20 percent from July 18, 2016), right lower extremity radiculopathy of the sciatic nerve (20 percent from July 18, 2016), left lower extremity radiculopathy of the femoral nerve (10 percent from September 10, 2018), right lower extremity radiculopathy of the femoral nerve (10 percent from September 10, 2018), left lower extremity radiculopathy of the external cutaneous nerve (10 percent from September 10, 2018), right lower extremity radiculopathy of the external cutaneous nerve (10 percent from September 10, 2018), tinnitus (10 percent from August 31, 2020), and back scar (noncompensable from August 23, 2013). The Veteran met the schedular requirements for a TDIU as of September 10, 2018. In July 2020, the Veteran’s partner reported that the Veteran worked once per month. In the October 2020 Board decision, the Board found that statement the from the Veteran’s partner raised the question of a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the claim for a TDIU for further development, to include providing the Veteran with VA Form 21-8940 – Veteran’s Application for Increased Compensation Based on Unemployability. In October 2020, the RO provided the required notice regarding a claim for a TDIU. The RO also provided VA Form 21-8940 and requested that the Veteran complete, sign, and return VA Form 21-8940. The Veteran has not submitted a completed copy of VA Form 21-8940. In addition, the claims file does not show that the Veteran is unemployed and unable to obtain or maintain substantially gainful employment. 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 the Veteran’s 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). Furthermore, the evidence of record does not establish that the Veteran is actually unable to obtain or maintain substantially gainful employment. For example, the Veteran’s medical records show that at a November 2010 VA examination, he reported that he was self-employed. At treatment records in October 2012 and January 2013, he reported that he continued to work. In August 2013, the Veteran was afforded a VA examination. He reported that he wore a back brace at work. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s lumbar spine disability did not impact his ability to work. The Veteran continued to report working in October 2013 and November 2013. In December 2013, the Veteran’s physician reported that he was unable to work due to recovering from a hip surgery, which is not a service-connected disability. The Veteran’s medical records show that he reported working in December 2013, May 2014, August 2014, June 2015, and July 2016. In August 2016, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s bilateral lower extremity radiculopathy resulted in a mild to moderate impairment standing and moving. In September 2016 and November 2016, the Veteran reported that he continued to work. In March 2017, the Veteran was afforded a VA examination. He reported that he continued to work doing plumbing, carpentry, and painting. The examiner reported that the Veteran’s lumbar spine disability resulted in mild functional limitations. In August 2017, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s bilateral lower extremity radiculopathy impacted the Veteran’s ability to lift, stand over 10 minutes, sit over 15 minutes, and stand on a ladder. In September 2018, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s lumbar spine disability prevented the Veteran from heavy lifting and running. In May 2019, the Veteran reported that he continued to work. In October 2019, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s lumbar spine disability with bilateral lower extremity radiculopathy did not impact his ability to work. In November 2020, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s tinnitus did not impact his ability to work. As such, the record shows that the Veteran continued to work, at least through May 2019. In addition, the most recent VA examiners reported that the Veteran’s service-connected disabilities did not impact his ability to work. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. (Continued on the next page)   Accordingly, a TDIU is denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.