Citation Nr: 21021487 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-38 337 DATE: April 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran did not return a completed VA Form 21-8940 to support a claim for TDIU, nor evidence of annual income to support a claim of marginal employment, and the preponderance of evidence is against finding that the Veteran’s service-connected disabilities result in an inability to obtain or maintain gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 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 July 1953 to July 1956. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107. As an initial matter, this issue was previously before the Board in July 2020, at which time the Board found that the issue of entitlement to TDIU was inferred as part of the increased initial rating claim on appeal at that time as under Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Entitlement to TDIU was remanded for further development. The 2020 remand instructed the RO to provide a Form 21-8940 (Increased Rating Based on Unemployability) to the Veteran in order to obtain relevant employment information and to contact current and former employers to develop the claim. It also instructed the Veteran to submit information regarding his annual income from 2014 through 2019. In July 2020, the RO sent the Veteran a letter explaining the requirements for developing his TDIU claim, including the need to submit proof of annual income for the above-mentioned years, and requesting that he provide a completed Form 21-8940 to obtain employment information; however, he did not respond and did not otherwise submit the requested information. In August 2020, following no response from the Veteran, the RO issued a supplemental statement of the case (SSOC) denying entitlement to TDIU. While VA has a statutory duty to assist in developing evidence pertinent to a claim, a veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Therefore, VA has satisfied its duty to assist in the development of the TDIU claim and has sufficiently complied with the terms of the Board’s prior remand. His representative has asked that he be given another chance to provide the information, but there is no valid reason to do so, considering the prior remand, the RO’s development letter and the supplemental statement of the case all informed him of the information that was needed and why, yet he chose not to provide it, and he has already had several months within which to do so. Turning to the relevant laws and regulations, total disability based on unemployability exists where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. When the schedular rating is less than total, a TDIU may be assigned if the Veteran meets certain schedular criteria under 38 C.F.R. § 4.16(a) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one disability should be rated at 40 percent or more and the combined evaluation should be 70 percent or more. See 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. See 38 C.F.R. § 4.16 (b). Substantially gainful employment is “that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356 (1991). It also suggests “a living wage.” Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined “substantially gainful employment” as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore, at 358; 38 C.F.R. § 4.16 (a) (“marginal employment shall not be considered substantially gainful employment”). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. See 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, prior to June 23, 2014, the Veteran was service-connected for: • residuals of a gunshot wound to the right leg, muscle group XI and XII rated at 20 percent disability; • diabetes mellitus associated with degenerative joint disease, left knee rated at 20 percent disability; • residuals of a gunshot wound to the right leg, muscle group XI and X rated at 10 percent disability; • degenerative joint disease (DJD), right knee, associated with residuals of gunshot wound to right leg, muscle group XI and XII rated at 10 percent disability; and • DJD, left knee associated with residuals of gunshot wound to right leg, muscle group XI and XII rated at 10 percent disability. He had a combined rating of 60 percent. Effective June 23, 2014, the Veteran was granted service-connection for scars, right lower extremities associated with residuals of gunshot wound to right leg, muscle group XI and XII rated at 10 percent disability. He had a combined rating of 70 percent. Effective August 6, 2015, the Veteran had a total disability rating for convalescence following left knee surgery. Effective October 1, 2015, the prior 10 percent rating for the right knee was resumed, and the combined rating returned to 70 percent. Effective June 27, 2019, the rating for residuals of a gunshot wound to the right leg, muscle group XI and X was increased to 20 percent and he was awarded a separate non-compensable rating for scars, right anterior tibialis entrance wound and posterior achilles exit wound associated with residuals of gunshot wound to right leg, muscle group XI and XII. His combined rating remained at 70 percent. Finally, effective October 1, 2019, the Veteran was granted service-connection for residuals of gunshot right leg achilles tendon rated at 10 percent, and his combined rating remained at 70 percent. Therefore, the Veteran’s combined evaluation was 60 percent effective March 3, 2014, and 70 percent for the reminder of the appeal period (other than the temporary total rating). His representative argues that the service-connected conditions should be considered one condition as they all relate back to the shooting accident during service. Disabilities resulting from common etiology or a single accident will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). There is no need to decide this question because, in this case, regardless of whether considering extraschedular or schedular entitlement, the evidence does not show that the Veteran is not capable of gainful employment due to his service-connected conditions. After active service, the Veteran worked for the postal service for a few years before he quit. He then obtained an education in water purification and worked for the municipal water department for more than 25 years before retiring in approximately 1997 from that occupation. See July 30, 2019 VA exam. However, in July 2015, the Veteran reported his left knee pain interfered with work, suggesting he was currently employed. See July 22, 2015 VA treatment records (noting symptoms of pain interfered with work and activities of daily living). First, it is not known exactly when he worked during the appeal period or what his wages were. As noted above, a 2015 VA note referenced him working. While it is plausible that the Veteran has worked during his appeal period, the Veteran has not provided such information. As noted in the prior remand, even if the Veteran did work periodically between 2014 and 2019, he could still be awarded TDIU if his income was marginal. For this reason, the Board asked for his income information, but he has not provided that either. There has been no allegation if he did work it was in a protected employment. Because the Veteran did not provide the requested VA forms for evidence of annual income and/or employment information, the Board must adjudicate on the available record. Second, the medical opinions and records weigh against finding unemployability. The 2014 VA examiner noted the Veteran’s knee condition would prevent squatting or kneeling in a job, and noted he was a retired general manager for a municipal water works agency. A March 2019 VA examiner noted that the Veteran’s left knee did have a functional impact on his ability to perform occupational tasks such as standing, walking, lifting, sitting, etc. and noted he was limited to a sedentary position because he had to change positions frequently. See March 29, 2019 VA Exam. An August 2019 VA examiner noted that the Veteran’s right knee did have a functional impact on his ability to perform occupational tasks such as standing, walking, lifting, sitting, etc. and noted he could take a sedentary position with breaks to walk or stand every 30 minutes. See August 1, 2019 VA Exam. Additionally, the medical record reveals the following: • A June 2015 primary care note reports the Veteran re-injured his knee two months prior and is unable to continue his daily exercise. See June 29, 2015 VA treatment records. • A July 2015 surgery and history report notes the Veteran reported his chief complaint was that his pain and dysfunction, the swelling, popping, locking and giving way, interfered with work the activities of daily living. See July 22, 2015 VA treatment records. • An August 2015 orthopedic note the Veteran’s left knee surgery sites were healed and that he reported his preoperative mechanical symptoms had resolved and was “walking in today without his walking aid.” See August 14, 2015 VA treatment records. • An August 2017 VA note indicating that his diabetes mellitus was in good control, Percocet with assisting with his pain, and he was doing light exercises. • February 2018 treatment note reports Veteran states overall he is doing ok except for pain in both knees and shoulders. Claims Norco helps him get out of bed and get things done around the house. Widowed so he takes care of himself and does all activities of daily life. See February 27, 2018 VA treatment records. • An August 2018 note indicating that he was doing 14-20 minutes of light weightlifting and exercising daily. • A February 2019 nursing note asking a series of questions which showed the Veteran was completely independent in his activities of daily living. Based upon the evidence of record, the Board finds the Veteran’s service-connected disabilities are not shown to be so disabling as to preclude him from securing or following substantially gainful employment in keeping with his education and occupational experience. The Board finds that an award of TDIU benefits is not warranted in this case because the Veteran is capable of performing the physical and mental acts required by, at least, sedentary employment. In making this finding, the Board has considered the Veteran’s service-connected disabilities, employment history, educational attainment, and all other factors having a bearing on this issue. The Board finds the 2019 VA examination reports which give the most current medical opinion and Veteran’s current medical condition, and the relevant medical evidence on record, to be the most probative evidence of record. The VA examiners reviewed the claims file and provided a detailed rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiners considered the totality of the Veteran’s symptoms and concluded that the Veteran is still able to perform sedentary work. Further, the ability to do sedentary work is consistent with review of the Veteran’s education and work experience. The United States Court of Appeals for Veterans Claims has instructed that “the meaning and relevance of the term [“sedentary employment”] will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each Veteran’s education, training, and work history.” Withers v. Wilkie, 30 Vet. App. 139 (2018). As such, the Board interprets sedentary to mean primarily working in an office-type setting with much of the day seated; noting that since “sedentary” is defined as “[r]equiring or marked by much sitting at a sedentary desk job”, it interprets this definition to mean that the Veteran could work in a job where he primarily sits down. Webster’s II New College Dictionary. Before the Board can rely on an examiner’s finding that the Veteran is capable of sedentary work to deny TDIU, it must also ensure the finding is consistent with the medical evidence as a whole, and that it is the Board’s “duty to ‘interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.’” Withers, 30 Vet. App. at 148. In this regard, the evidence shows that the Veteran’s obtained a formal education in water purification. This history indicates the capability to navigate and understand computers and technology, which would make the Veteran suitable for a sedentary occupation. His job was as a general manager, so he would have experience in a variety of administrative/managerial tasks. Accordingly, the Board finds that the Veteran’s education and work history does not preclude him from undertaking sedentary employment, exercising job functions that would not require him to undertake labor intensive work, such as lifting, carrying, standing, walking. Concerning the Veteran’s diabetes mellitus, the Veteran has never claimed his unemployability was due to his diabetes mellitus. Further, treatment records show the Veteran’s diabetes mellitus is controlled by medication, but no functional limitation to employability for the Veteran. Although it is unclear how long the Veteran has been unemployed, and his service-connected disabilities may interfere with his performance of some types of work, such as labor-intensive roles, the weight of the evidence shows that his service-connected disabilities would not prevent him from obtaining or maintaining substantially gainful employment. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to establish that he or she is unemployable within the meaning of 38 C.F.R. § 4.16. “The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.” Ray v. Wilkie, 31 Vet. App. 58 at 72 (quoting Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993)). Moreover, while the Board should consider the Veteran’s work history, there is no requirement in the applicable regulations that a TDIU is warranted when a veteran is unable to work in the exact type of occupation he or she previously held. While the Board, in no way, underscores the severity of the Veteran’s service-connected disabilities, after carefully considering all the evidence of record, the Board finds that the Veteran’s service-connected disabilities alone, without consideration of his age and non-service-connected medical problems, would not prevent him from finding and maintaining substantially gainful employment. It is clear that he has pain and functional limitations, but those limitations are not of such severity as to preclude him from engaging in sedentary employment, for which he has the skills and background. And, again, the current assignment of the schedular ratings is recognition of the functional limitations caused by his disabilities, and those ratings contemplate the severity and overall impact the symptoms have on his life. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of- the-doubt rule is not for application, and entitlement to a TDIU must be denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.