Citation Nr: 21021230 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-16 998 DATE: April 12, 2021 ORDER Service connection for residuals of a right eye injury is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not have any residuals from an in-service right eye injury and his current eye symptoms are unrelated to any disease or injury, or other event in service. 2. The preponderance of the evidence is against finding the Veteran’s service-connected disabilities have prevented him from obtaining and maintaining employment. CONCLUSIONS OF LAW 1. A right eye disability was not incurred in service and is not secondary to a service-connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria are not met for a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1975 to November 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision. In December 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board previously remanded the appeal in December 2017 and November 2019 for additional development. The case has been returned to the Board for further appellate review. 1. Service connection for residuals of a right eye injury The Veteran contends that he has residuals of a right eye injury he sustained in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service treatment records show that in October 1978, the Veteran fell downstairs and received contusions of the right eye with periorbital hematoma and sclera with hematoma. Later that month, the Veteran was seen for complaints of eyes burning from watching a welder. Examination showed no acute distress and the eyes were not red. In October 1979m the Veteran was struck on the left eyebrow. The laceration was ¼ inches long with minimal bleeding. The assessment was skin avulsion of the left outer eyebrow. The wound was cleaned and sutured. Upon discharge later that month, the left orbital sutures were noted. His vision was normal. The requirement for an inservice incurrence is satisfied. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of bilateral dry eye syndrome, right eye punctate keratitis, bilateral cataracts, and a scar to the right temporal eyebrow and evidence shows that an in-service injury occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses began during service or are otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with bilateral dry eye syndrome, right eye punctate keratitis, or bilateral cataracts until decades after his separation from service. While the Veteran is competent to report having experienced symptoms of dry eyes intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of bilateral dry eye syndrome, right eye punctate keratitis, or bilateral cataracts. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the October 2020 VA examiner opined that the Veteran’s bilateral dry eye syndrome, right eye punctate keratitis, or bilateral cataracts are not at least as likely as not related to an in-service injury, event, or disease, nor are they causally related to the service-connected right eyebrow scar. The rationale was the Veteran’s dry eyes, cataracts, and punctate keratitis were normal aging changes. The examiner further explained that the scar above the eyebrow could not cause these problems. The dry eyes were caused by Meibomian Gland Dysfunction. The dry eyes caused the bilateral punctate keratitis. The Veteran’s cataracts were mild nuclear sclerotic changes that were due to aging. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his bilateral dry eye syndrome, right eye punctate keratitis, and bilateral cataracts are related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Accordingly, the Board gives more probative weight to the October 2020 examiner’s opinion. Consequently, the preponderance of the evidence is against the claim and service connection for residuals of an in-service right eye injury is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3. 2. A total disability rating based on individual unemployability The Board notes that the TDIU issue was not expressly raised in prior rating decisions, but while his request for an increased rating for a compensable rating for bilateral hearing loss was previously before the Board in November 2019, the Board construed this as a request for TDIU based on the record. Specifically, the Board found the record indicated the Veteran was receiving Social Security Disability for his back disability and the September 2013 VA examination noted the Veteran’s back condition impacted his ability to work. Therefore, the Board found the issue had been raised by the record. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. Attention should be given to the veteran’s history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran’s particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: lumbar degenerative disc disease, status post laminectomy rated 40 percent from March 2013; scars of the head, neck, and face rated 20 percent from February 2012; radiculopathy of the right lower extremity associated with the lumbar degenerative disc disease rated 20 percent from March 2013; radiculopathy of the left lower extremity associated with the lumbar degenerative disc disease rated 20 percent from March 2013; tinnitus rated 10 percent from February 2012; and bilateral hearing loss and migraine headaches which are both noncompensably rated. Based on the forgoing, the Veteran has one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is not warranted. A March 2002 VA treatment record notes the Veteran’s occupation is as a maintenance worker. An April 2010 Vocational Rehabilitation Domiciliary note indicated the Veteran’s most recent employment was with Coca-Cola from 1997-2001. He reported he left the job due to the bottling company going out of business at that particular location. A May 2010 Social Work Admission note indicated the Veteran had completed his high school education, later attended truck driving school, and has also taken a computer course. It was noted that he did not currently have a medical clearance on file and given his lower back pain he was not cleared to work at a compensated work therapy (CWT) level. He admitted to being fired in the past due to missing a lot of time from work due to his drug addiction. His vocational experience has been as a trucker with a CDL, a warehouse worker, a welder, and as a musician. A May 2010 Domiciliary note indicated the Veteran was cleared for Level 1, but carried the restriction of no pushing, pulling, or lifting over 20 pounds. The vocational rehabilitation specialist thought the Veteran was a good candidate for the domiciliary recreation room aide position. A June 2010 VA treatment record noted the Veteran had just started a new job cleaning the kitchen in the domiciliary. An October 2010 CWT discharge note indicated the Veteran had completed the CWT program successfully without any problems; however, the Veteran’s job search efforts had not happened because he had been having migraine headaches. A November 2010 VA treatment record noted the Veteran had moved to California to live with his mother after losing his job in West Virginia. In August 2013, the Veteran underwent VA examinations for several disabilities. The examiner opined that the Veteran’s scars did not impact his ability to work. The examiner opined that the Veteran’s back disability prevented him from driving a truck due to back pain and instability in his legs. The examiner opined the Veteran’s migraines prevented him from working as a truck driver due to light sensitivity and inability to concentrate with headaches. The examiner opined the Veteran’s hearing loss made it difficult to understand speech and the Veteran needed to increase the volume on the television. In November 2013 the Veteran filled out paperwork for vocational rehabilitation that indicated he last worked as a fork-lift driver for Coca-Cola from February 1999 to December 2011. He also indicated that due to his back pain he could not sit for long periods of time, his hand hurt a lot, and he had hearing aids. In a May 2014 vocational rehabilitation note, the Veteran reported last working from 2006 to 2008 doing light home repairs. He reported he could no longer lift anything heavy due to his back. He expressed a desire to return to the work force. In an August 2014 vocational rehabilitation note, the Veteran was still interested in the CWT program, but the Veteran’s physician was unable to clear him medically. It is unclear what medical conditions the physician based this decision on as no detailed were provided. In an August 2014 vocational rehabilitation letter, the Veteran’s vocational rehabilitation benefits were discontinued because the Veteran was not interested in going back to work because it could reduce or stop his Social Security Income. A January 2015 vocational rehabilitation note indicates the Veteran is assigned to Incentive Therapy (IT) and he continued to participate in therapeutic work activity. He was assigned to the employee canteen area. A February 2015 VA treatment record noted the Veteran had exacerbation of back pain from working a job at the VA that involved lifting and had since stopped that work. A June 2015 homeless program assessment/intake form noted the Veteran reported full-time employment best described his employment pattern over the last three years. He further reported he worked 25 out of the last 30 days for pay. He indicated that in the past 30 days he had received money from employment and compensation for his service-connected conditions but indicated he did not receive any money from Social Security. It was noted that the Veteran was unemployed but participated in IT (work therapy program). In September 2015 the Veteran underwent another VA examination for his back disability. The examiner opined the Veteran’s back did not impact his ability to work. At the January 2017 Board hearing, the Veteran testified that his headaches were terrible for years and that they have bothered him so long that he could not get employment because sometimes his eyes hurt so bad he would have to go to a dark place and lay down and relax until there was relief. A May 2017 VA treatment record noted the Veteran reported he had not worked since he had back surgery in 2004. In February 2018 the Veteran underwent another VA examination for his hearing loss. The examiner opined the function impact of his hearing loss was a greater difficulty understanding conversations. In a February 2019 Social Work note the Veteran reported his usual occupation as a truck driver but noted he had not worked since 2002. He also reported working in a warehouse, working as a welder, and stilled worked playing the guitar for payment. As mentioned above, in November 2019, the Board remanded this claim for additional development. Specifically, the Veteran was asked to complete an updated VA form 21-8940 and to provide information on his places of employment since service. To date, nothing has been received. Based on the above evidence, the Board does not find that a TDIU is warranted at any time. The preponderance of the evidence does now show that the Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation. The limited available evidence regarding employment indicates that the Veteran has been employed full-time at various points in the appeal period doing CWT and IT. He was able to complete his work in the therapy programs largely without any issues. He did not pursue vocational rehabilitation or employment outside of the work therapy programs because he did not want to lose his Social Security benefits. He has also stated numerous times throughout the appeal that he continues to work as a paid musician. While his service-connected disabilities may have interfered with his usual occupation of a truck driver, he has been able to perform the duties of other jobs without his service-connected disabilities interfering in a significant way. The Board notes that on one occasion the Veteran complained of exacerbated back pain after performing duties in IT, but stated he stopped doing the work that exacerbated his back. The Board notes that the Veteran continued the IT program after seeking medical attention for this exacerbation so the Veteran may have had an accomodation for his back disability. However, the evidence is not clear as to whether any accomodation made would alone demonstrate that the Veteran would be limited to marginal employment. The record suggests that the Veteran’s work for at least part of the appeal period was marginal, as it appears that he was given accommodations on account of his disability. Whether a veteran is capable of more than marginal employment must be considered. Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran’s annual income does not exceed the poverty threshold for one person, as established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). However, as mentioned above, the Veteran was asked to provide information regarding his employment during the appeal period following the November 2019 Board remand, to which he did not respond. The duty to assist is a two-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Veteran was given the opportunity to update the record on the type of work he has been doing which VA is unable to obtain without his cooperation. That evidence could have been crucial to this claim. Thus, the record does not contain evidence regarding his work tasks and accommodations during the appeal period. Further, the evidence is unclear regarding his income. Accordingly, without this requested information, the claim cannot be granted and must be denied. Further, while the August 2013 VA examiner opined that the Veteran’s back disability prevented him from driving a truck, the September 2015 VA examiner opined the Veteran’s back disability did not impact his ability to work. In May 2010 the Veteran was medically cleared to work, but carried the restriction of no pushing, pulling, or lifting over 20 pounds. This restriction does not prevent the Veteran from securing or following a substantially gainful occupation. In August 2014, the Veteran’s physician did not medically clear him to work; however, it is unclear on what basis he was not cleared to work. Further, he was later cleared to work in IT. The Board does not doubt that the Veteran’s disabilities impact his daily life and employment; however, such impact has already been taken into consideration in the assignment of percentage disability ratings. The Board has considered the Veteran’s assertion that he should be considered unemployable due to his service-connected disabilities, in particular his back disability or his migraines, which the Veteran has noted causes significant interference with his ability to secure and maintain substantially gainful employment. However, the legal standard for entitlement to a TDIU due to service-connected disabilities is an inability to obtain and maintain substantially gainful employment, and not significant interference with an ability to obtain and maintain substantially gainful employment. Further, the Board finds the totality of the evidence to be more probative than the Veteran’s lay assertions in determining that his service-connected disabilities do not render the Veteran unable to secure or follow a substantially gainful occupation. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (Fed. Cir. 2007). The evidence establishes that while the Veteran’s service-connected disabilities may impact employment, he is not precluded from employment and, in fact, has been able to carry out full-time employment at various times throughout the appeal period. The Veteran has been medically cleared to perform duties in work therapy programs and has been able to successfully perform job duties in work therapy programs on a full-time basis. It has been the Veteran’s choice not to pursue full-time employment outside of work therapy programs so that he does not risk losing his Social Security benefits. Further, the Veteran has not provided the requested employment information that would be crucial to his claim. Accordingly, the preponderance of the evidence is against the assignment of a TDIU and the appeal is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.