Citation Nr: 21014163 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-13 710 DATE: March 11, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria are not met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1987 to August 1988. This appeal to the Board of Veterans’ Appeals (Board) is from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a prior September 2018 decision concerning the Veteran’s right foot disability, the Board found that a derivative TDIU claim also had been raised by the record as "part and parcel" of the underlying increased-rating claim addressed in that decision. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). But rather than immediately adjudicating this derivative TDIU claim, the Board remanded it back to the RO (Agency of Original Jurisdiction (AOJ)) in September 2018 and again more recently in October 2019 for further needed development – including to obtain Social Security Administration (SSA) records and to have the Veteran complete a VA Form 21-8940 (TDIU application) providing essential information concerning his educational and occupational history. To this end, the AOJ sent him a VA Form 21-8940 in June 2019, but he has not returned the form or submitted the requested information. The AOJ also completed the other-directed development in terms of requesting his SSA records. Thus, there has been the required compliance, certainly acceptable substantial compliance, with those and the other remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a TDIU The Veteran contends that his service-connected disabilities precludes him from obtaining and maintaining substantially gainful employment. 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. A finding of total disability is appropriate 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(a)(1), 4.15.   TDIU may be assigned where a veteran's schedular rating is less than 100 percent, 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 common etiology or single accident or affecting both upper or both lower extremities or a single bodily system will be considered as one, collective or aggregate disability. 38 C.F.R. § 4.16(a). 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, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, while a VA examiner's opinion is not dispositive, the observations of the examiner regarding functional impairment due to the service-connected disability goes to the question of physical or mental limitations that may impact a veteran's ability to obtain and maintain employment. The Veteran has the following service-connected disabilities and corresponding ratings for them: fracture of the right second metacarpal bone, rated as 10-percent disabling since March 28, 2011; plantar fasciitis, rated as 10-percent disabling since March 28, 2011; and bilateral otitis media, rated as 0-percent disabling (noncompensable) since March 28, 2011. He has a combined 20 percent rating for these service-connected disabilities. As such, the ratings for his service-connected disabilities do not meet the threshold schedular rating requirements for a TDIU according to 38 C.F.R. § 4.16(a). However, for those veterans who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a), a TDIU nevertheless may be assigned on an extra-schedular basis under the special provisions of § 4.16(b). But the Board cannot grant a TDIU on an extra-schedular basis, in the first instance, instead, must first refer the claim to the Director of the Compensation Service for this initial consideration if there is suggestion the Veteran is unemployable owing to his service-connected disabilities.   Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to the Director of the Compensation Service is warranted for extra-schedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Unfortunately, the Veteran did not submit the requested VA Form 21-8940 (official TDIU application). Although his failure to complete the form is not necessarily fatal to his TDIU claim, at least not in and of itself, his failure to provide this form in completion deprives the Board of information concerning his complete employment history, educational history and training, and income information necessary to best address his TDIU claim. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Because he has failed to cooperate with VA's attempts to develop the claim for a TDIU that was raised by the record, including by providing the information requested to permit proper adjudication of this claim, the Board cannot conclude that he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Of the evidence that is available for consideration, it does not show the Veteran is unemployable owing to his service-connected disabilities. Records obtained from the SSA show he completed two years of college. He self-reported that his last date of employment was in February 2009. He reported that his prior employment history included working as a long-distance truck driver and chef.   The SSA determined he had not engaged in substantial gainful activity since February 2009 due to the severe impairments of his back and obesity – which, notably, are not service-connected disabilities. The SSA's legal criteria for assessing disability for Social Security benefits purposes differs in important respects from VA's framework for determining entitlement to a TDIU. Therefore, SSA determinations are not binding on the Board, even though relevant. See Collier v. Derwinski, 1 Vet. App. 413, 417(1991). Further, the Board is precluded from considering impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. During a February 2012 VA examination for the Veteran’s bilateral otitis media, the VA examiner indicated this ear condition does not functionally impact the Veteran’s ability for employment. The contemporaneous March 2012 VA examinations for the Veteran’s plantar fasciitis and right-hand disability noted these disabilities functionally impair his ability to work by limiting his ability to walk, stand for a prolonged period, and to do work that requires forceful repetitive grasping. However, the schedular ratings for these service-connected disabilities contemplate some measure of occupational impairment owing to them. See 38 C.F.R. §§ 4.1, 4.15. An August 2016 VA examiner opined that the Veteran’s plantar fasciitis impacts his ability to perform occupational tasks, as he can only walk 20 to 30 feet without a cane, but, again, that is not tantamount to concluding he is unemployable because of this service-connected disability. It is clear from the reports of those VA examinations that the Veteran’s service-connected disabilities impair or hamper his ability to perform some functions of employment. But these functional impairments, including occupationally, already are contemplated by the ratings assigned for these service-connected disabilities, and the Court has clarified that the disability rating, itself, is recognition that industrial capabilities are impaired. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).   For these reasons and bases, the Board finds the preponderance of the evidence is against finding that the Veteran's service-connected disabilities render him incapable of obtaining or maintaining substantially gainful employment. The Board, thus, finds that referral of the claim to the Director of VA's Compensation Service is not required, and that this claim must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.