Citation Nr: 21015603 Decision Date: 03/18/21 Archive Date: 03/17/21 DOCKET NO. 14-06 298 DATE: March 18, 2021 ORDER Entitlement to a finding of total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT 1. The Veteran did not complete and return a VA Form 21-8940 in connection with the TDIU. 2. There is incomplete information of record regarding the Veteran’s work history. 3. The Veteran’s service-connected disabilities are not shown to preclude the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 501, 7105; 38 C.F.R. §§ 3.158, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the U.S. Army from December 1974 to December 1977. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  These duties have been satisfied in this case.  Appropriate notice was provided in June 2012 and September 2012.  The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file.  No other relevant records have been identified and are outstanding.  In April 2020, the Board remanded this matter for additional development, which has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). No additional As such, VA has satisfied its duty to assist.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Total disability will be considered to exist 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. Total disability ratings for compensation 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 is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Veteran is currently service-connected for an acquired psychiatric disorder rated as 50 percent disabling, neuropathy of the right upper extremity rated as 30 percent disabling, neuropathy of the left upper extremity rated as 20 percent disabling, hepatitis C rated as 20 percent disabling, neuropathy of the right lower extremity rated as 20 percent disabling, neuropathy of the right lower extremity rated as 20 percent disabling, neuropathy of the left lower extremity rated as 20 percent disabling, diabetes mellitus type II rated as 20 percent disabling, left wrist degenerative joint disease rated as 10 percent disabling, a back disorder rated as 10 percent disabling, hypertension (HTN) rated as noncompensable (0 percent), and scar left wrist rated as noncompensable (0 percent). The Veteran had a combined evaluation of 90 percent effective March 28, 2012. Therefore, the Veteran’s disability rating satisfies the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for TDIU. Nonetheless, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. The Veteran filed a claim for a TDIU in March 2012; however, he did not file the claim on a VA Form 21-8940 or otherwise provide necessary information regarding his past employment, education, and vocational training to properly evaluate the claim. In November 2012, the Veteran was afforded a number of VA examinations. He had symptoms described as fatigue. He did not take any medication for his condition. The examiner opined that the Veteran’s hepatitis condition did not impact his ability to work. The Veteran was not diagnosed with a mental health disability. The Veteran reported that he was not working presently because of his disability. He indicated that he worked for V. Industries doing welding. He reported that he last worked three weeks prior at A. Valley during harvest, in a temporary position unloading trucks. He reported that he worked in wielding, transformer repair, and did some cooking and electrical work. In November 2012, an individual unemployability opinion was obtained. The Board notes that while medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator. As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. Moore, supra. The examiner noted that the Veteran’s file was reviewed. The examiner opined that the Veteran’s service-connected disabilities did not render him from securing and maintaining substantially gainful employment. The examiner noted that the Veteran reported he worked heavy labor jobs for many years. Recently the Veteran worked emptying trucks of grain and was required to crank open the door to release the grain. He reported that he had left wrist pain, so he used his right upper extremity most. The Veteran was not significantly affected by hepatitis at that time. He indicated that he had occasional fatigue but was not sure if that was secondary to his hepatitis. The examiner noted that it appeared the Veteran was able to tolerate medium to light work. However, it would be difficult for frequent repetitive motion and medium to heavy lifting with the left wrist. The examiner concluded that the evidence did not support the claim of unemployability. In December 2013, the Veteran was afforded a VA scar examination. The Veteran had a scar on his left wrist. The examiner opined that the Veteran’s scar did not impact his ability to work. In December 2013, the Veteran was afforded a VA diabetes examination. The examiner opined that the Veteran’s diabetes did not impact his ability to work. A January 2014 VA treatment note documented that the Veteran worked at a grain elevator, but planned to quit in two weeks and take a job as a truck driver. A December 2014 VA treatment note indicated that the Veteran had a truck driving job. However, the Veteran had quit and was now unemployed. In April 2016, the Veteran was afforded a VA wrist examination. The Veteran reported that his wrist bothered him at random times, such as when he was gardening. He had a functional loss/impairment described as loss of motion. His initial range of motion (ROM) was 60 degrees for palmar flexion, 30 degrees for dorsiflexion, 45 degrees for ulnar deviation, and 20 degrees for radial deviation; the examiner stated there was no additional functional limitation with repeated movement or use over time. The examiner opined that the Veteran’s did not impact his ability to perform any type of occupational task. A May 2019 VA treatment note documented that the Veteran was retired. The Veteran reported that the was a welder for 20 years. He indicated that he was a road trucker until his diabetes forced him to retire. In October 2019, the Veteran was afforded a VA wrist examination. The Veteran reported that his wrist flared up when he carried things or swung a baseball bat. He reported that he lost his grip sometimes. He noted that he had difficultly bending his wrist backwards. He indicated that his flare-ups were moderate and occurred for one hour. His condition was alleviated by rest, immobilizing, and massaging. The examiner opined that the Veteran’s condition impacted his ability to perform any type of occupational task. The examiner noted that the Veteran was a retired welder. The Veteran had painful ROM, twisting, lifting, and frequent bending. In October 2019, the Veteran was afforded a VA hypertension examination. The examiner opined that the Veteran’s hypertension did not impact his ability to work. In October 2019, the Veteran was afforded a VA mental disorder examination. The Veteran was diagnosed with an adjustment disorder. The examiner opined that the Veteran’s adjustment disorder caused an 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; symptoms controlled by medication. He had symptoms of depressed mood, flattened affect, and disturbance of motivation and mood. The Veteran reported that he was not working at present time because of his disability. He indicated that for eight years he worked for V. Industries doing welding. He later started driving an 18-wheeler trucks; however, he stopped because of his diabetes. He indicated that he stopped working because he could not keep up with his medication due to his schedule. He worked for 8 months as a trucker. The Veteran reported that he was somewhat of a loner. He indicated that he spent his time around his yard, raising chicken, and doing house projects. In October 2019, the Veteran was afforded a VA diabetic sensory examination. The Veteran had mild incomplete paralysis in his right upper extremity. He had moderate incomplete paralysis in his left upper extremity. The examiner opined that the Veteran’s condition did not impact his ability to work. In October 2019, the Veteran was afforded a VA back condition examination. The Veteran reported that he had pain with lifting, standing, walking, and sitting for long periods of time. He noted that he had pain at night that would wake him up. The examiner opined that the Veteran’s back condition impacted his ability to work. The examiner noted that the Veteran was a retired welder and electrician. The examiner indicated that he had pain with lifting, standing, walking, and sitting for long periods of time. In October 2019, the Veteran was afforded a VA scar examination. The Veteran had a scar on his left wrist. The Veteran’s scar was not painful or unstable. The examiner opined that the Veteran’s scar did not impact his ability to work. The preponderance of the evidence reflects that the Veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. The November 2012 individual unemployability opinion demonstrated that the Veteran’s service-connected disabilities were less likely than not rendering him from securing and maintaining substantially gainful employment. The record reflected that the Veteran was able to continue to work as a seasonal worker emptying trucks of grain. The October 2019 back VA examiner opined that the Veteran’s back condition impacted his ability to work. He noted that the Veteran had pain with lifting, standing, walking, and sitting for long periods of time. However, he could work in jobs that required light physical demand. The record reflected that the Veteran was able to be a road trucker. He reported that he stopped being a trucker because of his diabetes and not his physical limitations. He indicated that stopped working because he couldn’t keep up with his medication due to his schedule. The record demonstrated that his mental disorder had little impact on his overall function and reported symptoms such as depressed mood and flattened affect were mild or transient. The Veteran did not submit, as requested, a formal TDIU application Form (VA Form 21-8940). Consequently, the Board must decide the claim based on the evidence of record. A notification letter was sent in April 2020 requesting information. The Board’s own review of the claims file does not show that the Veteran is unable to obtain or maintain substantially gainful employment. In pursuing a claim, a claimant has a responsibility to cooperate in developing all facts pertinent to the claim, VA’s duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board cannot be sure of the circumstances surrounding Veteran’s employment status. The mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough warrant a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Ultimately, it is the Veteran’s obligation to present and support a claim for VA benefits. 38 U.S.C. § 5107. The evidence of record does not establish that the Veteran is actually unable to obtain or maintain substantially gainful employment. Accordingly, TDIU is denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.