Citation Nr: 21014094 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 19-37 540 DATE: March 11, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), prior to September 18, 2009, is denied. FINDING OF FACT 1. Prior to September 18, 2009, the schedular requirements for a grant of TDIU were not met. 2. Prior to September 18, 2009, the Veteran was not precluded from obtaining and securing substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU, prior to September 18, 2009, have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. § §§ 3.340, 3.341, 3.400, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1967 to September 1969. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service and Campaign Medals. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board remanded this matter for additional evidentiary development. The RO subsequently requested that the Veteran fully complete a new VA Form 21-8940 in July 2020; and obtained a December 2020 advisory opinion from VA’s Director of Compensation Service as to the applicability of an extraschedular evaluation for a TDIU rating, prior to September 18, 2009, under 38 C.F.R. § 4.16(b). The Board finds these actions to be in substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). 1. Entitlement to a TDIU, prior to September 18, 2009. In April 2015, the Board issued a decision which, in pertinent part, granted entitlement to TDIU. To effectuate the Board’s decision, the RO issue a June 2015 rating decision which granted entitlement to a TDIU, effective September 18, 2009. In June 2020, the Board accepted jurisdiction of the issue of entitlement to a TDIU, prior to September 18, 2009. Although the RO had granted entitlement to a TDIU rating, effective September 18, 2009, the issue of entitlement to a TDIU, prior to September 18, 2009, remains in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). As noted in the Board’s June 2020 remand, the Veteran’s claim for a TDIU has been actively pending since his claim for an eye disability was filed on September 29, 2004. Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2018, the RO issued a rating decision which denied the Veteran’s claim for a TDIU, prior to September 18, 2009. The Veteran timely appealed this decision. The Veteran is seeking an earlier effective date of September 29, 2004, for the award of a TDIU. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Having established the date of claim as September 29, 2004, the Board shall now address the whether the Veteran was entitled to a TDIU at any point prior to September 18, 2009. A TDIU rating may be granted when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, a claim that meets the criteria for referral for consideration of entitlement to a TDIU rating on an extraschedular basis must be referred to the Director of Compensation Service for consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Initially, the Board concludes that the Veteran does not meet the preliminary schedular criteria for entitlement to a TDIU rating. Throughout the course of this appeal, the Veteran was service-connected for the following: (1) coronary artery disease, rated at 10 percent; (2) diabetes mellitus, type II, with erectile dysfunction, rated at 20 percent; (3) bilateral hearing loss, rated at 10 percent; (4) tinnitus, rated at 10 percent; and (4) diabetic retinopathy of the right eye rated at 0 percent. Beginning June 8, 2007, he was service-connected for the following additional disabilities: (1) peripheral neuropathy of the upper left extremity, rated at 10 percent; (2) peripheral neuropathy of the upper right extremity, rated at 10 percent; (3) peripheral neuropathy of the lower left extremity, rated at 10 percent; and (4)peripheral neuropathy of the lower right extremity, rated at 10 percent. These disabilities result in a combined evaluation of 40 percent, effective from September 29, 2004; and 60 percent, throughout the remainder of the appeal period. Thus, prior to September 18, 2009, the schedular requirements for a grant of TDIU were not met. 38 C.F.R. § 4.16(a). A December 2020 advisory opinion from the VA’s Director of Compensation Service concluded that the evidence fails to support the contention that any of the Veteran’s service-connected disabilities or a combination of the effects of those disabilities prevented him from obtaining gainful employment prior to September 18, 2009. Based upon a longitudinal review of the record, the Board concludes that the evidence does not show that the Veteran had been rendered unemployable by reason of his service-connected disabilities. Pursuant to the Board’s June 2020 remand, the RO requested that the Veteran complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, in July 2020. As noted in the Board’s prior decision: While completion of this document is not explicitly required, the information contained therein is all necessary for the Board and VA to make an informed decision. Of greatest importance to the Board is knowing the Veteran’s dates of employment and when he left his previous position. The Veteran is specifically instructed that a failure to furnish this information may result in a denial of his claim or in a decision being based on an inaccurate factual premise. No response to this request was received from the Veteran, and his failure to provide the requested information was noted in the RO’s December 2020 Supplemental Statement of the Case. It is also worth noting, that the Veteran’s failure to submit a complete TDIU application was also the subject of the Board’s January 2014 remand. A review of the current evidence of record does not suggest that the Veteran was precluded from obtaining and securing substantially gainful employment as a result of his service-connected disabilities at any time prior to September 18, 2009. An August 2005 VA treatment report noted that he worked daily as an equipment operator. A January 2007 VA examination for hypertension noted that the Veteran was actively employed as a truck driver. In October 2008, the Veteran submitted his substantive appeal indicating that he was still employed, but that he was being set-up for termination. A January 2010 hearing loss and tinnitus examination noted that the Veteran was retired, having worked as a mechanic, equipment operator and truck driver. On his January 2013 TDIU application, VA Form 21-8940, the Veteran indicated that he last worked as an equipment operator in 2008. Although requested by the form, the Veteran did not identify the employer or provide his employment history for the last five years) and did not identify the extent of his education/training, instead replying “N/A.” He denied having ever sought employment since 2008. A March 2014 VA general medical examination noted that the Veteran’s last job was as a haul truck driver for the county, and that he indicated that he quit this job in 2008. A July 2017 VA treatment report noted that the Veteran had retired from Bexar County Public Works. Thus, the preponderance of the evidence establishes that the Veteran was employed throughout most of the appeal period, and then retired at some point. Although the Veteran seeks an earlier effective date for the award of a TDIU, he has chosen not to support this contention with any specific information concerning his employment history. The Veteran’s failure to submit a VA Form 21-8940 despite repeated requests has precluded potentially favorable evidence as a completed form could have allowed for verification of the Veteran's work status. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that the duty to assist is not always a one-way street, or a blind alley, and that a veteran must be prepared to cooperate with VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting the claim). (Continued on next page) Moreover, evidence of unemployability due to his service-connected disabilities is not established in the remaining evidence of record. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for a TDIU have not been met at any point throughout the appeal period. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.