Citation Nr: 21022644 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 20-25 722 DATE: April 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to April 3, 2017 and from August 2, 2017 is denied. FINDING OF FACT The record does not contain sufficient evidence to substantiate a reasonable possibility that the Veteran is unable to secure and follow substantially gainful employment by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.10, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1968 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, increased the rating for lumbosacral radiculopathy of the right lower extremity and granted service connection and assigned an initial evaluation for the radiculopathy left lower extremity and continued the current rating for the lumbosacral strain with degenerative disc disease of the lumbosacral spine. The Veteran’s timely Notice of Disagreement (NOD) was received by VA in April 2017. In April 2020, the RO issued a Statement of the Case (SOC). In a June 2020 VA Form 9, the Veteran’s representative raised the issue of entitlement to a TDIU as part and parcel of the Veteran’s claims herein. Thus, the Board recharacterized entitlement to a TDIU as a separate issue. Rice v. Shinseki, 22 Vet. App. 447 (2009). In July 2020 the Board remanded the issue of entitlement to a TDIU for further evidentiary development and denied the Veteran’s claims of an increased rating for lumbosacral radiculopathy of the left lower extremity, an increased rating for lumbosacral radiculopathy of the right lower extremity, and an increased rating for lumbosacral strain with degenerative disc disease of the lumbosacral spine. A Supplemental Statement of the Case (SSOC) was issued in December 2020 regarding entitlement to TDIU. The matter has been returned to the Board for further appellate proceedings. 1. Entitlement to a TDIU prior to April 3, 2017 and from August 2, 2017 is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability must include consideration of functional impairment of the ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure and follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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, 4.16(a). Nevertheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. Thus, where the schedular threshold of 38 C.F.R. § 4.16(a) is not met, an extraschedular rating may be warranted under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The ultimate question is whether a veteran, in light of their service-connected disabilities, 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 (1993). Since July 22, 2016, service connection has been in effect for (1) lumbosacral strain with degenerative disc disease of the lumbosacral spine, rated as 40 percent disabling; (2) prostate cancer, rated as 40 percent disabling; (3) Meniere’s syndrome, rated as 30 percent disabling; (4) coronary artery disease with stable angina, status percutaneous coronary intervention, rated as 30 percent disabling prior to April 3, 2017, temporarily rated 100 percent under 38 C.F.R. 4.30 from April 3, 2017, to July 31, 2017, rated as 60 percent disabling from August 1, 2017, to January 31, 2020, and has been rated as 30 percent disabling since February 1, 2020; (5) left lower extremity radiculopathy, rated as 20 percent disabling; (6) right lower extremity lumbosacral radiculopathy, rated as 20 percent disabling; (7) folliculitis with miliaria rubra, rated as 10 percent disabling; (8) erectile dysfunction, rated as 0 percent disabling; and (9) left kidney stone, rated as 0 percent disabling. The Veteran’s combined evaluation for compensation was 90 percent prior to April 3, 2017, was 100 percent from April 3, 2017, to January 31,2020, and has been 90 percent since February 1, 2020. The Veteran was also in receipt of special monthly compensation at the housebound rate from April 3, 2017, to August 1, 2017, because his 100 percent rating for coronary artery disease and additional service-connected disabilities independently ratable at 60 percent or more met the criteria for statutory entitlement to special monthly compensation at the housebound rate. As such, the Board finds that entitlement to a TDIU from April 3, 2017, to August 1, 2017, is moot because he is in receipt of a 100 percent schedular rating and special monthly compensation at the housebound rate. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008); Rice, 22 Vet. App. at 453-54 (2009). The Veteran meets the schedular criteria for entitlement to a TDIU for the entire period on appeal, prior to April 3, 2017, and since August 2, 2017, because his combined rating for compensation was at least 70 percent and at least one disability has been rated as at least 40 percent disabling. 38 C.F.R. 4.16. After review of the evidence of record, the Board finds that the Veteran’s service-connected disabilities have not at least as likely as not rendered him unable to obtain or maintain gainful employment. As such the Board concludes that TDIU is not warranted. 38 C.F.R. § 4.16. The nature of the Veteran’s theory of entitlement with respect to this claim is unclear. Although the Veteran’s attorney has submitted evidence and argument relating to other claims, such as a reduction for the Veteran’s service-connected CAD, to date, no evidence or argument has been received regarding the issue of entitlement to a TDIU. But for general boilerplate submissions in the June 2020 VA Form 9, the Veteran’s attorney has identified no specific errors of fact or law with respect to the claim of entitlement to a TDIU. The VA Form 9 does not include any indication as to which of the Veteran’s service-connected disabilities render him unable to secure and maintain gainful employment or the timeframe when the Veteran stopped working, if at all, and/or became unemployable. In September 2020 the Veteran’s attorney submitted a request for status of claims and/or immediate adjudication, but that memo only requested an update on the deduction of the Veteran’s rating for his service-connected Coronary Artery Disease (CAD). Again, in January 2021 the Veteran’s attorney submits a second request for status of claim and/or immediate adjudication wherein he again only address the percentage reduction for the Veteran’s service-connected CAD. The evidence of record establishes that the Veteran is working full-time as an attorney at a law firm he owns. A January 2017 medical note confirms the Veteran is a lawyer who owns his own law firm and notes his work tasks include computer and sitting and he works full time. There is no indication, nor is it contended, that this is protected employment. The evidence of record includes numerous other statements regarding the Veteran’s ability to work and the fact that he is working. On a February 2016 medical intake document, the Veteran notes he is a lawyer who works for a law firm. The Veteran’s August 2016 VA examiner opines the Veteran’s thoracolumbar spine (back) condition does not impact his ability to work. The Board observes that the Veteran’s former representative reported during the Veteran’s November 2016 Board hearing that the Veteran was a practicing attorney. An April 2017 medical consultation note indicates the Veteran is still working as a lawyer. A May 2017 VA examiner opined it is reasonable that the claimed condition (coronary artery disease and stable angina) would negatively impact his ability to work as it relates to walking, climbing stairs, or performing any activity that requires any exertion. In a January 2020 VA examination of the Veteran’s back it was noted the Veteran worked as an attorney and he lost 2-4 work weeks in past 12 months. Although the VA examiner offered negative opinion as to whether the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disability, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Because entitlement to a TDIU was raised by the record from the boilerplate language on the June 2020 VA Form 9, the Board remanded the issue of entitlement to a TDIU in July 2020 in order to provide the Veteran and his representative appropriate notice regarding the claim of a TDIU and to provide the Veteran and his representative the opportunity to submit relevant information and evidence regarding the Veteran’s work history, which service-connected disability or disabilities render him unemployable, and when he contends that he became unemployable. Indeed, in accordance with the Board’s instructions, the Veteran and his attorney were provided appropriate notice and they were provided VA Form 21-8940 on three separate occasions. However, to date, the form has not been completed or returned by either the Veteran or his attorney. Additionally, neither the Veteran nor his attorney have submitted evidence to support his claim for a TDIU in a different format. Although VA has a duty to assist the Veteran in the development of his claim, such duty is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Rather, the Veteran also has an obligation to assist in the adjudication of his claim. “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, 1 Vet. App. at 195. The evidence of record establishes that the Veteran is currently working full-time as a lawyer at a firm he owns. Thus, the Board concludes entitlement to a TDIU is not warranted. 38 C.F.R. § 4.16. Considering all this, and the entire record, the Board must deny the claim. For these reasons, the preponderance of the evidence is against the claim of entitlement to TDIU and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). R. Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Penn, 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.