Citation Nr: 21014048 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-50 751 DATE: March 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran’s service-connected disabilities precludes him from securing and following any substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1953 to April 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in September 2020 for further development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran testified at a travel board hearing before the undersigned in May 2019. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. In the September 2020 Board remand, the Board directed the RO to provide the Veteran with appropriate notice in connection with his TDIU claim, specifically that he be requested to complete and submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940) and to undertake all further development of the claim. In order to effectuate that request, the RO sent the Veteran an October 2020 development letter with the following information: (1) that the Veteran that he needed to submit additional evidence, to include enclosed VA Forms 21-8940 and 21-4192 (Request for Employment Information) and (2) that the evidence or information should be sent as soon as possible as VA could make a decision on the Veteran’s claim after 30 days. The Veteran did not respond to this development letter and did not return a completed VA Form 21-8940 or VA Form 21-4192. While the Veteran’s representative indicated in the February 2021 appellate brief that the Veteran did not understand the significance of completing and submitting a VA Form 21-8940 and requested a remand for the Board to direct the RO to explain to the Veteran the importance of furnishing this form, the Board finds that the Veteran was notified of the significance of the VA Form 21-8940 in the October 2020 letter, which listed this form as additional needed evidence from the Veteran, and in the September 2020 Board remand. Given the decision by the Veteran not to participate in any further development of his claim, the Board recognizes that the duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that, as the Veteran has rejected VA’s attempts to generate the necessary information to assist with substantiating his claim, there is no duty to seek further development. For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. The Veteran is seeking a TDIU based on his service-connected disabilities. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a “living wage.” Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the Census Bureau. 38 C.F.R. § 4.16 (a). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). 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). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The phrase “unable to secure and follow a substantially gainful occupation” has been interpreted to consist of two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 72 – 74 (2019). The economic component 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. at 73. With respect to the noneconomic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required; and, (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 73 – 74. The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners’ conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment. As an initial matter, the Board finds that the Veteran’s TDIU claim is part and parcel with an increased rating claim that was on appeal, which was filed on June 18, 2014. See Rice v. Shinseki, 22 Vet. App. 447 (2009). From June 18, 2014 to July 30, 2014, the Veteran was service connected for right shoulder bursitis at noncompensably disabling and left lower leg scar as residual of an infection at noncompensably disabling. His combined disability rating was 0 percent. Therefore, the Veteran’s service-connected disabilities did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a). From July 31, 2014 to March 13, 2017, the Veteran was service connected for right shoulder bursitis at 10 disabling, left lower leg scar as residual of an infection at noncompensably disabling, bilateral hearing loss at 30 percent disabling, and bilateral tinnitus at 10 percent disabling. His combined disability rating was 40 percent. Therefore, the Veteran’s service-connected disabilities did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a). From June 18, 2014 to March 13, 2017, the Veteran’s service-connected disabilities did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a). However, it is the established policy of VA 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). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). From March 14, 2017, the Veteran was also in receipt of a 100 percent rating for his Waldenstrom’s macroglobulinemia (non-Hodgkin’s lymphoma). The Board notes that in Herlihy v. Principi, 15 Vet. App. 33, 35 (2001), the Court of Appeals for Veterans Claims (Court) held that the grant of a schedular 100 percent disability evaluation moots the issue of any entitlement to TDIU after the effective date of that rating. However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)). Therefore, the Board will consider whether TDIU is warranted based on the service-connected disabilities other than Waldenstrom’s macroglobulinemia from March 14, 2017. In September 2020, the Board remanded this matter for evidentiary development, including to provide the Veteran with proper notice regarding how to substantiate his claim for a TDIU and to request that he complete VA Form 21-8940. In October 2020, the RO sent the Veteran a letter notifying him of the evidence needed to establish a TDIU, to include VA forms 21-8940 and 21-4192, and requesting that he complete these forms. The Veteran did not respond. According to post-service VA treatment records, the Veteran worked as a sales manager until 2012. He reported right shoulder pain. The records also showed that he was able to bathe, dress, toilet, transfer, and feed himself and that he could use the phone, shop, prepare food, maintain his home, do personal laundry, travel, and handle his medication and financial matters independently. In a September 2014 VA examination for shoulder and arm conditions, the Veteran was diagnosed with right shoulder bursitis. He reported intermittent right shoulder pain and cramps if he rolled on his right shoulder and slept on it for a while, which could last for 30 minutes. He denied flare ups that impacted the function of his shoulder and/or arm. He had limited range of motion with painful motion. The examiner opined that the Veteran’s shoulder condition did not impact his ability to work. In a September 2014 VA audiological examination, the Veteran was diagnosed with bilateral hearing loss and tinnitus. He reported that he had tinnitus on a daily basis and that he noticed it at night. The examiner opined that the Veteran’s hearing loss and tinnitus did not impact the ordinary conditions of daily basis, including his ability to work. In a May 2015 VA examination for shoulder and arm conditions, the Veteran was diagnosed with right shoulder bursitis. The examiner noted that the Veteran had had surgery on his right shoulder in November 2012 for arthroscopy with debridement and partial rotator cuff tear, AC decompression due to impingement, SLAP repair and anterior shoulder capsulectomy with release and manipulation, for which he was not service connected. The Veteran reported that his shoulder was not doing well and cannot lift his arm well. The examiner opined that the occupational impairment due to the Veteran’s service-connected right shoulder bursitis included inability to lift heavy objects or perform overhead activities with the right arm. In a May 2015 addendum opinion, the examiner opined that the Veteran’s bursitis was a separate condition from that treated at his November 2012 surgery. While it was most likely that his current pain and decreased range of motion were related to his November 2012 surgery. However, as both conditions could cause pain and subsequent decreased range of motion, it would be speculation to attempt to determine the percentage each condition contributed to this. In a May 2015 VA examination for scars, the examiner noted a scar on the Veteran’s left shin area, but no redness or swelling. The examiner opined that the Veteran’s scar did not impact his ability to work. In a June 2017 VA examination for hematologic and lymphatic conditions, the examiner opined that the Veteran’s Waldenstrom’s macroglobulinemia impacted his ability to work and noted that the Veteran had last worked as a sales manager in 2012. The examiner also noted the Veteran’s reports that he was unable to work due to his Waldenstrom’s macroglobulinemia due to being chronically fatigued. In a May 2019 disability benefits questionnaire completed by Dr. Sokol, it was noted that the symptoms due to the Veteran’s Waldenstrom’s macroglobulinemia included weakness, easy fatigability, light-headedness, shortness of breath, headaches, and dyspnea or mild exertion. June 18, 2014 to July 30, 2014 Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran’s service-connected right shoulder bursitis and left lower leg scar rendered him unable to secure and follow a substantially gainful occupation from June 18, 2014 to July 30, 2014. In making this determination, the Board acknowledges that the Veteran has reported right shoulder pain in VA treatment records. However, the evidence of record does not indicate that he suffered occupational impairment due to his service-connected right shoulder bursitis and left lower leg scar. Furthermore, the evidence of record indicates that the Veteran has consistently asserted that his Waldenstrom’s macroglobulinemia, which was not service connected until March 14, 2017, caused his unemployability. However, as he was not service connected for this disability from June 18, 2014 to July 30, 2014, it cannot serve as the basis of an award of a TDIU. In sum, the evidence of record does not suggest that the Veteran is unemployable due to his service-connected right shoulder bursitis and left lower leg scar from June 18, 2014 to July 30, 2014. Further, the evidence of record does not suggest that his service-connected disabilities caused such an exceptional or unusual disability picture so as to place him in a different category than other veterans with an equal rating of disability. As such, there is no basis for referring the Veteran’s claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16 (b). In making this finding, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent that service-connected disabilities affect the Veteran’s employment, the assigned schedular ratings for his disabilities compensate the Veteran for such impairment. Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities prevents him from securing or following a substantially gainful employment from June 18, 2014 to July 30, 2014. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. July 31, 2014 to March 13, 2017 Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran’s service-connected right shoulder bursitis, left lower leg scar, bilateral hearing loss, and bilateral tinnitus rendered him unable to secure and follow a substantially gainful occupation from July 31, 2014 to March 13, 2017. In making this determination, the Board acknowledges that the Veteran’s service-connected disabilities certainly cause him some level of functional impairment, particularly his right shoulder bursitis. In fact, the September 2014 and May 2015 VA examinations indicate that the Veteran’s right shoulder bursitis resulted in painful motion, limitation of motion, and inability to lift heavy objects or perform overhead activities with the right arm. However, they do not indicate that the Veteran was precluded from all forms of work, such as sedentary employment, due to his service-connected disabilities, particularly in light of his work history as a sales manager. Furthermore, the other VA examinations of record indicate that the Veteran’s service-connected left lower leg scar, bilateral hearing loss, and bilateral tinnitus did not impact the Veteran’s ability to work. Additionally, VA treatment records show that the Veteran still able to do a number of activities independently, such as using a phone, shopping, handling his medication and financial matters, and traveling. The evidence of record also indicates that the Veteran has consistently asserted that his Waldenstrom’s macroglobulinemia, which was not service connected until March 14, 2017, caused his unemployability. However, as he was not service connected for this disability from July 31, 2014 to March 13, 2017, it cannot serve as the basis of an award of a TDIU. In sum, the medical evidence of record does not suggest that the Veteran is unemployable due to his service-connected disabilities from July 31, 2014 to March 13, 2017. Further, the evidence of record does not suggest that his service-connected disabilities caused such an exceptional or unusual disability picture so as to place him in a different category than other veterans with an equal rating of disability. As such, there is no basis for referring the Veteran’s claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16 (b). In making this finding, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent that service-connected disabilities affect the Veteran’s employment, the assigned schedular ratings for his disabilities compensate the Veteran for such impairment. Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities prevents him from securing or following a substantially gainful employment from July 31, 2014 to March 13, 2017. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. From March 14, 2017 From March 14, 2017, the Veteran is in receipt of a schedular 100 percent rating for his service-connected Waldenstrom’s macroglobulinemia. As noted above, a grant of a 100 percent disability does not always render the issue of TDIU moot due to VA duty to maximize a claimant’s benefits which includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)). Therefore, the Board will consider whether TDIU is warranted based on the service-connected disabilities other than Waldenstrom’s macroglobulinemia from March 14, 2017. As an initial matter, the Board notes that the Veteran was also service connected for right shoulder bursitis at 10 disabling, left lower leg scar as residual of an infection at noncompensably disabling, bilateral hearing loss at 30 percent disabling, and bilateral tinnitus at 10 percent disabling from March 14, 2017. The evidence does not establish that TDIU may be awarded based on the Veteran’s service-connected right shoulder bursitis, left lower leg scar, bilateral hearing loss, and bilateral tinnitus from March 14, 2017. Although the Veteran’s right shoulder bursitis resulted in some occupational impairment, specifically inability to lift heavy objects or perform overhead activities with the right arm, it would not preclude him from following substantially gainful employment of a sedentary nature. Furthermore, the VA examinations of record indicate that the Veteran’s service-connected left lower leg scar, bilateral hearing loss, and bilateral tinnitus did not impact the Veteran’s ability to work. Additionally, VA treatment records show that the Veteran still able to do a number of activities independently, such as using a phone, shopping, handling his medication and financial matters, and traveling. Consequently, the weight of competent medical evidence indicates that the Veteran’s unemployability stems from his service-connected Waldenstrom’s macroglobulinemia, and not his right shoulder bursitis, left lower leg scar, bilateral hearing loss, and bilateral tinnitus. Therefore, the issue of entitlement to TDIU is moot and the criteria for an award of SMC have not been met. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.