Citation Nr: 21015049 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-26 091 DATE: March 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s only service-connected disability of PTSD has not resulted in an inability to secure and maintain a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to September 1977 and December 1990 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In May 2018 and July 2019, the Board remanded the case for further development. Despite the issuance of the May 2020 supplemental statement of the case on the matter, and despite reference to such in the Veteran’s appellate brief, the matter of an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is not before the Board. A May 2018 Board decision adjudicated the matter; Board decisions are final when issued. 38 U.S.C. § 7104. The issue of entitlement to a TDIU was raised by the record and was an implied part of the Veteran’s claim for a higher initial evaluation for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the appeal period stems from the effective date of service connection for PTSD, October 6, 2011, onward. The Veteran contends, in his representative’s February 2021 appellate brief, that the effects of his worsening service-connected PTSD are underrated and do not reflect his true loss of functional ability to maintain gainful employment, rendering him incapable of sustaining gainful employment. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 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.” 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 when arriving at this conclusion; factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A total disability may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase “unable to secure and follow a substantially gainful occupation” under 38 C.F.R. § 4.16. The Court defined the term to have two components: one economic and one noneconomic. 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. The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment. In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board must consider: (1) the veteran’s occupational 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 by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.” Id. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s only service-connected disability is PTSD, rated 70 percent from October 6, 2011. As the Veteran has one service-connected disability rated at 60 percent or higher, the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are met for the rating period.   Entitlement to a TDIU is denied. The narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected PTSD during the period on appeal. After a review of all of the evidence, the Board finds that the Veteran’s service-connected PTSD did not render him unable to secure or follow a substantially gainful occupation at any point during the period on appeal. The Veteran’s actual employment status during the appeal period is unclear, as he did not complete and return a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), despite repeated requests by VA to do so, as well as repeated notifications that doing so was crucial to substantiating his TDIU claim. On June 17, 2013, VA released a Fast Letter “to revise and clarify VA procedures relating to claims for total disability ratings based on individual unemployability (TDIU).” See VA Fast Letter 13-13 (June 17, 2013). The June 17, 2013, VA Fast Letter explains that a substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories. The form concludes with a series of sworn certification statements, and in endorsing it, a Veteran both attests to his/her employment status, and signals understanding of the TDIU benefit’s incompatibility with substantially gainful work. A properly signed and executed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran’s entitlement to TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. In this case, in a May 2018 decision, the Board inferred a TDIU claim as part of an increased initial rating claim for PTSD and remanded the issue for further development. The Board directed that the Veteran was to be provided, and requested to complete and return, a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), and if necessary, a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). In an October 2018 letter, the Veteran was advised of the requirements for a TDIU and was asked to submit a VA Form 21-8940, and if necessary, a VA Form 21-4192. The Veteran did not submit a VA Form 21-8940, though he did submit a completed VA Form 21-4192 in January 2019. In July 2019 the Board, noting difficulties delivering mail to the Veteran, once again remanded the TDIU matter for further development, again directing that the Veteran was to be provided, and requested to complete and return, a VA Form 21-8940. In so doing, the Board specifically advised the Veteran that “VA’s duty to assist a claimant is not always a ‘one-way street,’ and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence,” citing Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In an August 2019 letter, the Veteran was again advised of the requirements for a TDIU and was asked to submit a VA Form 21-8940. The Veteran again did not submit a VA Form 21-8940. The lack of response to VA’s requests has prevented it from verifying the Veteran’s employment status, and thus kept it from obtaining necessary information to substantiate his TDIU claim. While—as discussed below—the Veteran has submitted some employment information to VA and given various accounts of his employment status, he has never certified in any statement to VA that he is actually not employed in substantially gainful work, despite’s VA’s repeated solicitation of such statement, and despite its notice that such information and statements were critical to his claim. In addition to this, the existing evidence contains unclear and inconsistent reports of whether the Veteran stopped working in a substantially gainful occupation and, if so, when and under what circumstances. The January 2019 VA Form 21-4192, submitted by the Veteran and completed by his supervisor, shows that he was an owner-operator truck driver, and his ending date of employment with the company was July 19, 2018, but he was not terminated. His earnings for the previous 12 months were over $50,000, indicating that, at least at that point, he was earning more than marginal income. The VA Form 21-4192 also indicates that he worked up to 11 hours per day and 70 hours per week, indicating more than full-time work. The Veteran therefore was, according to his own submitted evidence, employed in a substantially gainful occupation until at least July 19, 2018. The record from 2018 and 2019 reflects somewhat inconsistent accounts of why and whether the Veteran stopped working as a truck driver, and whether he otherwise pursued other substantially gainful employment. VA treatment records reflect that, in May 2017, the Veteran reported planning to retire from his job as a truck driver in one year. In October 2017, he reported planning to retire in 10 months and planning to start a food truck with a friend once he was retired, cooking and serving whole hog barbecue; he reported looking forward to starting his food truck business. He reported his plan to retire and start a food truck business again in January, May and June 2018. May 2017 to June 2018 treatment records thus reflect that the Veteran was specifically planning to retire in mid-2018 for more than a year before he reportedly did retire from full time work as a truck driver in July 2018, with the plan of starting a food truck business afterwards. After July 19, 2018, however, the Veteran at different times gave varying reasons for no longer working in this capacity as a truck driver. The Veteran submitted a July 25, 2018, psychiatric assessment from a private psychiatrist, Dr. H.J. The assessment, less than a week after the Veteran reportedly retired from his job as a truck driver, noted that the Veteran reported that he could not drive at night anymore. Additionally, a November 2018 treatment record from Dr. H.J. reports that the Veteran “had to stop working because of [his] headache and pain.” An October 2018 VA mental health note reports that the Veteran retired in July because he “had a lot of appointment[s]” and his dispatcher was giving him a hard time for taking time off; he also planned to continue part-time, two days per week as a truck-driver until December 2018, and was currently building smokers and preparing to operate a food truck, having finished 5-6 smokers that he wanted to sell eventually. The Board notes that on September 2019 VA examination, the Veteran reported that he last worked as a truck driver about two years before, and that, although he had been driving trucks for 20 years, with the combination of sleep impairment and focus issues, he was no longer able to perform the duties involved in driving a truck. However, the statement is contradicted by the previous evidence of record indicating that the Veteran had specifically planned his retirement over a year in advance, with the goal of pursuing a living in another business, as well as the various reasons following July 2018 that he asserted having stopped work as a truck driver, noted above. The Board also notes the findings of the September 2019 VA examiner regarding the Veteran’s occupational impairment and symptoms resulting from his PTSD, as well as the examiner’s remark that, given his current level of psychiatric distress surrounding his PTSD diagnosis, the Veteran would be anticipated to have difficulty maintaining gainful employment in most typical workplace settings. In this regard, the Veteran’s 70 percent rating for his service-connected PTSD contemplates a significant degree of occupational impairment and symptomology. (Continued on the next page)   However, again, the Veteran has not completed and returned a VA Form 21-8940 and, as a result, has not certified his unemployed status as to VA, or provided VA with the information required to verify his employment or occupational status, which—particularly given the evidence, as discussed above—is unclear. Therefore, a preponderance of the evidence is against a finding that the Veteran’s service-connected PTSD has resulted in an inability to secure and maintain a substantially gainful occupation. Accordingly, entitlement to a TDIU is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Andrew Mack Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Caban, 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.