Citation Nr: 21015548 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-15 103 DATE: March 17, 2021 ORDER Prior to June 13, 2020, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Prior to June 13, 2020, the Veteran’s service-connected disabilities did not prevent him from obtaining and maintaining employment consistent with his occupational and vocational experience. CONCLUSION OF LAW Prior to June 13, 2020, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1972 to May 1993. The Veteran’s claim for a TDIU was most recently before the Board in August 2020 wherein it was remanded for additional development. This development was attempted and the claim has returned to the Board. TDIU Through a September 2020 rating decision, the Veteran was granted a TDIU effective June 13, 2020. The Veteran filed VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability, in June 2020. However, a claim for a TDIU arose with his dispute of the initial ratings assigned to his left and right upper extremity radiculopathy, which had been pending since November 12, 2013. In disputing those ratings during the appeal period, the Veteran averred that the conditions made him unable to work. Thus, a claim for a TDIU was part and parcel of the claims for greater initial ratings and was before the Board in the prior appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356, 359 (2018). The Veteran’s disability ratings have met the threshold requirement for consideration of a schedular TDIU since November 12, 2013. See 38 C.F.R. § 4.16 (a). The law provides that a total disability rating may be assigned where the schedular rating is less than total 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 are two or more 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. See 38 C.F.R. § 4.16 (a). When considering whether the Veteran’s disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. The ultimate determination in a claim for a TDIU is not whether a veteran is unemployed or has difficulty finding employment, but rather, whether he is capable of performing the acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran’s service-connected disabilities are bilateral hearing loss, rated at 0 percent; scar, rated at 0 percent; irritable bowel syndrome, rated at 0 percent; bilateral hearing loss, rated at 0 percent; cervical spine degenerative disc disease and spondylosis, with fusion and arthritis, rated at 20 percent from November 12, 2013; right upper extremity radiculopathy, rated at 30 percent from November 12, 2013 (and at 40 percent from October 23, 2019); and left upper extremity radiculopathy, rated at 40 percent from November 12, 2013 (and at 50 percent from October 23, 2019). His total combined rating for the period on appeal prior to June 2020 is 70 percent since November 12, 2013 and 80 percent from October 2019. Therefore, he has met the percentage requirements for consideration of a TDIU. As the Veteran was granted a TDIU effective June 13, 2020, the question now turns to whether his service-connected disabilities rendered him unemployable prior to that date. In the formal application for a TDIU submitted in June 2020, the Veteran explained his recent work history. In the August 2020 Board remand, the Board mistakenly stated that the application contained the following information: he had last worked full time on June 12, 2010; and that he had worked for that business from April 1, 2015 to June 12, 2000. However, the document is clear that the Veteran worked at a construction company from April 1, 2015 to June 12, 2020. The Veteran has been gainfully employed full-time, based on this application, from April 1, 2015 to June 12, 2020. He has made no argument as to marginal or protected employment during that time of employment and the application and information from his employer do not evince otherwise. For example, the Veteran did not assert that he had lost any time during that previous calendar year due to disability. Therefore, the Board finds that the Veteran was employed from April 1, 2015 to June 12, 2020 and was not eligible for a TDIU. For the period from November 12, 2013 to April 1, 2015, the Board previously remanded the claim for development. The Board wishes to emphasize that “[t]he duty to assist in the development and adjudication of a claim is not a one-way street.” Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). “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). It is the responsibility of appellants to cooperate with VA. See Olson v. Principi, 3 Vet. App. 480, 483 (1992). For the period from November 12, 2013 to April 1, 2015, the Board cannot locate information about whether the Veteran was unemployed or whether he believed himself incapable of employment. The Veteran did apply for Social Security Disability benefits in 2011, prior to the period on appeal, but the Board notes that this application occurred after the Veteran was released from prison and not directly related to an inability to perform work he had otherwise been performing. While the Veteran sought treatment for his service-connected conditions, the Veteran did not assert to any medical provider that he believed his condition precluded work. Rather, he started working April 1, 2015, which indicates that he was actively looking for employment and believed himself capable of employment. Further, the Veteran filed VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability, in June 2020, after he stopped working, but no earlier. At best, the probative evidence reveals the Veteran’s service-connected disabilities made working difficult but that the Veteran was still looking for work until he stopped. Without more, the Board does not find that the benefit of the doubt inures to the Veteran about whether he was marginally employed or unemployed. Given that, the Board finds the issue of whether the combined effect of his service-connected disabilities precluded employment to be moot. (CONTINUED ON NEXT PAGE) Based on this evidence, the Board finds that the record does not support a finding of unemployability prior to June 13, 2020, the date for which a TDIU is already in effect. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.