Citation Nr: 21014733 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 13-31 399A DATE: March 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 23, 2019 is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not prevent her from obtaining or maintaining a substantially gainful occupation prior to September 23, 2019. CONCLUSION OF LAW The criteria for the assignment of TDIU due to service-connected disabilities were not met prior to September 23, 2019. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to May 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes a complicated procedural history in this matter. The Veteran was granted service connection for an acquired psychiatric disability in a March 2004 rating decision and assigned a 10 percent disability rating. The Veteran did not appeal that decision and it became final. The Veteran submitted a December 2009 statement in support of claim which VA treated as a claim for increased rating. The Veteran’s disability rating was increased to 30 percent in the February 2010 rating decision on appeal, effective December 10, 2009. The Veteran filed a timely Notice of Disagreement (NOD) in September 2010. She was afforded a VA mental disorders examination on August 21, 2013. A Statement of the Case (SOC) was issued in September 2013. During the pendency of this case, a Decision Review Officer (DRO) issued an April 2015 rating decision increasing the rating for the Veteran’s acquired psychiatric disability to 70 percent, effective August 21, 2013, the date of the VA examination showing an increase in the Veteran’s mental disability. The rating decision noted that this was only a partial grant of the benefits sought on appeal. The Veteran perfected her appeal, filing a VA Form 9 in November 2013, where she also requested a Board hearing. The hearing request was withdrawn in November 2015 correspondence. In a January 2020 remand, the Board determined that the evidence of record raised a claim for TDIU and remanded the claim to the agency of original jurisdiction (AOJ) so that the Veteran could be provided with a 38 C.F.R. § 3.159(b) notice letter addressing the inferred claim of entitlement to TDIU. The required notice was subsequently provided to the Veteran in January 2020; however, she did not respond to the January 2020 correspondence. In November 2020, the Board again remanded the issue of TDIU prior to September 23, 2019 to afford the Veteran another opportunity to respond. The AOJ provided additional notice to the Veteran post-remand in November 2020. Again, she did not respond to the November 2020 correspondence. The Board notes that the November 2020 remand determined that entitlement to TDIU from September 23, 2019 was moot because the Veteran was awarded a 100 percent rating for her service-connected acquired psychiatric disability from this date. Accordingly, TDIU for the period from September 23, 2019 is no longer on appeal. 1. Entitlement to schedular TDIU prior to August 21, 2013 (a.) Abandonment of Claim for TDIU As previously mentioned, in January 2020, the Veteran was sent a letter which specifically requested that she complete and return an enclosed VA Application for Increased Compensation Based on Unemployability, VA Form 21-8940. In November 2020, the Veteran was again sent a letter requesting that she complete and return a VA Form 21-8940. To date, neither the Veteran nor her representative has submitted a VA Form 21-8940 or any comparable statement containing the requested employment information. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent her from securing or following a substantially gainful occupation, and the treatment she has received for the disability(ies). The veteran is further asked to supply information about her employment, including dates when her disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. The VA Form 21-8940 also requests information regarding the veteran’s employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left her last job, and whether the veteran has attempted to obtain employment since she became too disabled to work. The information provided by a veteran on a VA Form 21-8940 can be used by the RO to submit requests for her previous employers to complete a VA Form 21-4192. As such, this information is critical to the resolution of the Veteran’s TDIU claim. VA’s duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A veteran must cooperate when she is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Additionally, when evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). The critical facts at this stage are clear. The Veteran has not provided the information or VA forms necessary for VA to adjudicate her claim of entitlement to a TDIU. Accordingly, the Board is presented with a less-than-complete evidentiary picture, made so by the Veteran’s failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Because of her failure to cooperate and since one year has passed since the January 2020 request for information, the Board finds that the Veteran has abandoned her claim. As such, the Board finds that the appeal must be denied. However, to the extent that the second November 2020 request for information may have reset the one-year timeline outlined in 38 C.F.R. § 3.158, the Board also finds that for the reasons stated below an award of TDIU prior to September 23, 2019 is not warranted. (b.) Entitlement to TDIU prior to September 23, 2019 In an August 2010 statement, the Veteran asserted that she experienced daily panic attacks, nightmares, and trouble sleeping. She also informed the Board that she was working for a wounded warrior social service but requested leave without pay to address her medical problems. She described always being late to work, tired, and not concerned with her co-worker’s attitudes. Factual Background The Veteran was afforded a VA examination in February 2010 for her service-connected acquired psychiatric disability. At the outset, the Board acknowledges that the VA examiner noted that the Veteran was a reliable historian but did not seem very motivated to provide her history. The February 2010 VA examiner’s report noted that the Veteran had a high school diploma. Prior to entry into active duty service, the Veteran worked for one year in a department store and six months as a take-out clerk at a restaurant. In service, her occupation was in patient administration. Post-service, the Veteran had several civil service jobs including one in Germany. For the past two years she was employed at a medical center, which she reported was her longest held job. The February 2010 VA examiner’s report noted that the Veteran reported feeling unrested, fatigued, unmotivated, sad, and had trouble establishing effective work and social relationships. She also reported feeling overwhelmed at work all the time, but apparently performed well because she received various merit awards. The examiner noted that she had no difficulty understanding commands. Importantly, the examiner noted “[t]he Veteran does not contend that she is unemployable, in fact she is employed full time in civil service in a GS position. She is mentally able to manage any benefit payments in her own best interest.” The examiner also noted that the Veteran’s private provider was also considering the possibility that the Veteran had a bipolar disorder. A July 2010 private treatment record notes that the Veteran had diagnoses of anxiety and bipolar disorder. Another July 2010 private treatment record notes that the Veteran had bipolar disorder and borderline personality disorder. In an August 2010 buddy statement from C.M., C.M. stated that the Veteran had been depressed, withdrawn, and unable to deal with people since approximately 2007. C.M. suggested that the Veteran take time off from her job because the Veteran seemed irritated and agitated to the point C.M. thought it was best for the Veteran to not be exposed to others on a daily basis. In an August 2010 rehabilitation needs inventory contained in the Veteran’s VA vocational rehabilitation and education records, the Veteran stated that she was interested in pursuing a career in either interior design or as a librarian. The Veteran again indicated that she had a high school diploma was an administrative assistant currently. The Veteran stated that her disabilities included depression, bipolar disorder, and personality disorder. In September 2010 correspondence from the Veteran’s employer, the employer stated that the Veteran joined their social work service in February 2008 as a medical assistant and had been promoted to administrative assistant. The employer explained the Veteran’s responsibilities stating, “[h]er role in the Social Work Clinic has always been a very valuable one and carried with it a lot of responsibilities in regard to assisting up to twelve Clinical Social Workers and three Psychiatrists.” The employer explained, however, that over the past year the Veteran exhibited a significant decrease in her quality of work and in her actions with clinical social workers. The employer stated that the Veteran has used almost all of her sick and personal leave. The employer also alluded that the reason for the Veteran’s decreased performance was due to “more and more difficulties related to her extended family members” and “other personal issues” which had a direct impact on her job performance. An August 2012 private treatment record notes that the Veteran had frequently been angry, irritable, and aggressive. The record also notes that the Veteran had started to become delusional and was hearing voices, however, the Veteran had not experienced delusions in the past and the delusions were not a common occurrence. The Veteran also started writing “disturbing” letters to her medical providers which she did not deliver but instead hid in odd places in her home. A December 2012 private treatment record notes that the Veteran was being treated for multiple psychiatric disorders and was not able to participate in any stressful situations that required concentration, sitting for prolonged periods of time, or being exposed to constant amounts of stimuli. The Veteran was afforded another VA examination in August 2013 for her service-connected acquired psychiatric disability. The examiner noted that the Veteran had major depressive disorder that resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; the Veteran’s symptoms were controlled by medication. The examiner noted that no other mental disorder had been diagnosed. However, the examiner also noted that a private provider had diagnosed the Veteran with bipolar disorder due to mania and symptoms such as spending sprees, irritability, distractibility, pressured speech, racing thoughts, and elevated mood. The VA examiner stated in the remarks: “It is unclear to me from just this one evaluation whether the Veteran has true bipolar disorder although the private therapist has that diagnosis for her. I will keep the original diagnosis of Major Depressive Disorder which is her original service-connected diagnosis.” The examiner again noted the Veteran’s work history noting that after separation from active duty service, the Veteran worked in a medical office in Germany, then in 1994 the Veteran became a medical clerk at Fort Hood, followed by a contract job at Fort Sam Houston, and next a clerk job from 2005-2006 in Mississippi after Hurricane Katrina, and finally worked as a social work medical clerk at a medical center from 2008 to 2011. The examiner noted that the Veteran was unemployed for the past two years. During her last job, the Veteran reported that she had trust issues, was anxious when coworkers got close to her, had to have an office away from people due to her paranoia, was depressed, and had restless sleep with nightmares. A September 2013 private treatment record notes that the Veteran was not gainfully employed. The record explained, “[o]verall, Ms. [REDACTED] presents as non-fit for duty employee type as she routinely presents with feelings of depression, anxiety, sadness, confusion, fearfulness, and a sense of loss of control... she reports enjoying her position as a GS worker however with the increased symptoms and the inability to control the thoughts she has been unable to return to work and progress in her career as an administrative assistant…” The record further documented that the Veteran reported experiencing chronic suicidal ideations and a desire to harm others but had not acted out on either. Analysis For the period prior to September 23, 2019, the Veteran was awarded service connection for major depressive disorder rated at 50 percent from December 10, 2009 and then 70 percent from August 21, 2013; residuals from a total abdominal hysterectomy rated at 30 percent; tinnitus rated at 10 percent; residuals of a myomectomy at noncompensable; and an abdominal scar rated at noncompensable. The Veteran’s combined evaluation was 70 percent for the entire period on appeal. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 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.” See 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 her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board notes that the Veteran has met the requirements for entitlement to schedular TDIU for the entire period on appeal. At the outset, the Board again emphasizes that the Veteran was not responsive to the January 2020 and November 2020 requests for information sent to her and that she has not completed the requested VA Form 21-8940. The Veteran’s failure to cooperate with two prior requests has created an incomplete disability picture for the Board and it finds that additional requests would be futile. The February 2010 VA examiner’s report indicates that the Veteran did not contend that she was unemployable and that she was in fact gainfully employed as of the date of the examination. The September 2010 employer correspondence further shows that the Veteran was gainfully employed until at least September 2010 but that her work performance was declining. The August 2013 VA examiner’s report further noted that the Veteran was employed until at least 2011 but had been unemployed for the past two years. The Board acknowledges the August 2010 buddy statement from C.M. which suggested that the Veteran take time off from work, however, the record shows that the Veteran did not do so and proved capable of substantially gainful activity for more than a year after the buddy statement was submitted. Accordingly, the Board finds that the evidence of record shows that the Veteran was capable of substantially gainful activity until as late as September 2011 and that she was in fact gainfully employed until that time. It appears, however, that the Veteran has been unemployed since September 2011. The February 2010 and August 2013 VA examiner’s reports indicate that the Veteran only had one psychiatric disability, major depressive disorder, but also note that the Veteran may have been diagnosed by a private provider with bipolar disorder. In addition, July 2010 private treatment records note diagnoses of anxiety, bipolar disorder, and borderline personality disorder. The Board notes that the Veteran has not claimed nor been awarded service connection for bipolar disorder nor borderline personality disorder. Accordingly, TDIU cannot be awarded for these non-service-connected disabilities. As discussed, the February 2010 VA examiner’s report determined that the Veteran’s service-connected major depressive disorder did not prevent substantially gainful employment. The August 2013 VA examiner’s report found that the Veteran’s major depressive disorder only resulted in decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or that the Veteran’s symptoms were controlled by medication. The August 2013 VA examiner’s report does not indicate that the Veteran’s service-connected disabilities resulted in unemployability. In fact, no VA examiners have found the Veteran to be unemployable due to her service-connected disabilities. To the extent that the Veteran may be unable to engage in substantially gainful employment, the Board finds that such limitation is due to difficulties with extended family and personal issues, as explained in the September 2010 employer correspondence, or by symptoms such as irritability, distractibility, pressured speech, racing thoughts, and elevated mood attributed to her non-service-connected bipolar disorder as documented in the August 2013 VA examiner’s report and the Veteran’s private treatment records. Based on the foregoing, the Board finds that the preponderance of the evidence is against the appeal assignment of TDIU due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Because the record does not show that prior to September 23, 2019 the Veteran was unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities, the claim for entitlement to TDIU must be denied. M. MCPHAULL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.