Citation Nr: 21023172 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 07-26 029 DATE: April 20, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence reflects that the Veteran’s service-connected disabilities do not render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Army from November 1998 to November 2004. His awards include the Army Commendation Medal. This matter initially came before the Board of Veterans’ Appeals (Board) from a July 2005 rating decision. In August 2013, the Board expanded the appeal to include the inferred issue of entitlement to a TDIU, as part and parcel of the appeal for a higher initial rating for service-connected right shoulder disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue in August 2013, and again in December 2019, for further development. In the August 2013 and December 2019 remands, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, notify the Veteran of the information and evidence needed to substantiate his claim for a TDIU, ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records, obtain all outstanding VA treatment records, afford the Veteran appropriate VA examinations to assess the functional impacts of his service-connected disabilities, and adjudicate a claim of service connection for psychiatric disability. Pursuant to the Board’s remands, the Veteran was notified of the information and evidence needed to substantiate his claim for a TDIU and was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of letters dated in April 2017 and January 2020. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letters. Moreover, all outstanding VA treatment records were obtained and associated with the claims file, the Veteran was afforded appropriate VA examinations in June 2017 and November 2020, and the AOJ awarded service connection for posttraumatic stress disorder (PTSD) with secondary alcohol use disorder in a December 2020 rating decision. Therefore, the AOJ substantially complied with the Board’s pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As noted above, during the pendency of the appeal, in the December 2020 rating decision, the AOJ awarded service connection for PTSD with secondary alcohol use disorder and assigned an applicable disability rating and effective date. The Board finds that this grant constitutes a full award of the benefit sought on appeal with respect to this issue. See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997). Entitlement to a TDIU. The Veteran has asserted that his service-connected bilateral shoulder and back disabilities have prevented him from obtaining substantially gainful employment since December 2008. See September 2012 VA Form 21-8940. The Veteran has raised the issue of entitlement to a TDIU as part and parcel of his appeal for a higher initial rating for service-connected right shoulder disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board will consider the Veteran’s TDIU claim from the November 14, 2004 effective date of service connection for the right shoulder disability. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from securing or following any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 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 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., non-physical, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. 38 C.F.R. § 4.16(a). VA’s policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16(b) in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating. Applying the criteria set forth above to the facts in this case, the Board finds that a preponderance of the evidence is against the assignment of a TDIU. Service connection is in effect for the following disabilities: PTSD with secondary alcohol use disorder, rated 50 percent disabling from November 25, 2020; right shoulder impingement, rated 10 percent disabling prior to January 1, 2011 and 20 percent disabling since that date (except for periods when temporary 100 percent ratings were in effect); left shoulder tendonitis, rated 10 percent disabling from February 12, 2010, and 20 percent disabling from July 12, 2012; mechanical low back pain, rated 10 percent disabling from November 14, 2004, and 20 percent disabling from July 12, 2012; and tinnitus, rated 10 percent disabling from November 14, 2004. The Veteran has also been granted service connection for hearing loss, leishmaniasis, right shoulder scars, and leishmaniasis residual scars, each rated noncompensable (0 percent disabling). His combined disability rating is 30 percent prior to February 12, 2010, 40 percent from February 12, 2010 through July 11, 2012, 60 percent from July 12, 2012 through November 24, 2020, and 80 percent, from November 25, 2020 (except for periods when temporary 100 percent ratings were in effect). Thus, from November 25, 2020, the Veteran satisfies the percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU. Although the Veteran satisfies the percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU from November 25, 2020, the Board finds that the evidence does not show that his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. Additionally, for the reasons that follow, the Board also finds that referral for extraschedular consideration prior to November 25, 2020 is not warranted. The Veteran last worked full-time in December 2008 in a warehouse as a packager and deliverer. See September 2012 VA 21-8940. Thereafter, in 2009 and 2010 he worked 30 hours per week for a lawn care company owned by a friend. He did not leave his last place of employment due to a disability. Id. The Veteran completed high school and one year of college. Id. From June 2011 to August 2012 he completed automotive technology training. Id. In a June 2012 report of consultation, completed by a private physician, the physician opined that the Veteran could not perform his trade as an automotive mechanic due to substantial pain in his right and left shoulders. For his left shoulder, the examiner noted that the Veteran was limited to lifting light weight and could not reach in a cabinet. As for his right shoulder, the examiner stated that the Veteran had lifting and reaching limitations. The examiner concluded that the Veteran’s bilateral shoulder, lumbar spine, hearing impairment, and PTSD symptoms deem him individually unemployable. Pursuant to the August 2013 remand, a VA opinion regarding the total effect of the Veteran’s service-connected disabilities was obtained that same month. An examiner opined that due to the Veteran’s right and left shoulder conditions he was not capable of physically demanding employment, but that he could perform non-physical employment. The examiner noted that the Veteran’s shoulder conditions were completely asymptomatic and would not prevent non-physical employment. Further, his hearing loss and tinnitus would not prevent non-physical employment. The examiner suggested the use of hearing protection in a work environment with increased noise level. As for the Veteran’s back, the examiner recounted the Veteran’s report of difficulty working due to his low back condition, but that he was pursuing a business college degree. Lastly, the examiner noted that the Veteran’s scars did not cause any functional impact. Pertinent to the Veteran’s shoulder and associated scars, an October 2008 VA examiner opined that the Veteran’s right shoulder condition had significant effects on occupational activities, such as decreased strength and pain in the upper extremity. However, the examiner noted that the shoulder condition was improving and should gradually improve and strengthen with activity. During a December 2008 VA examination, the Veteran reported being unemployed for the past two weeks from working as a delivery driver. During a March 2013 VA examination, the Veteran reported that he was unable to obtain a job due to his disabilities. He reported starting school in September 2012 for business administration. As for functional limitations, the examiner opined that the Veteran’s right shoulder condition would cause difficulty with overhead reaching and heaving lifting, but the Veteran could perform non-physical activity. During a June 2017 VA examination, an examiner opined that the Veteran’s right and left shoulder conditions limited lifting no more than 50 pounds, and holding his arms up for more than a few minutes. As for scars, no functional impact was found. As for leishmaniasis and low back disabilities, a December 2008 VA examiner indicated that the Veteran’s leishmaniasis had resolved with treatment. As for his low back, the examiner opined that the Veteran’s low back pain had no significant effect on his occupation. During a June 2017 VA examination, the examiner indicated that the Veteran’s low back pain prevented him from running and caused limitations with sitting. For his audiological conditions, during a June 2017 VA examination, the examiner noted that the Veteran’s hearing loss caused difficulty hearing with background noise. As for tinnitus, no functional impact was found. As for PTSD, an August 2013 VA examiner opined that although the Veteran had a diagnosis of PTSD, the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning. During a November 2020 VA examination, the Veteran reported a work history of employment at DHS, National Archives, and most recently as a legal administration specialist at VA. He stated that he has been unemployed since January 2020. The examiner opined that the Veteran’s PTSD symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The claims file shows that in July 2017 the Veteran submitted an application for vocational rehabilitation, but there is no indication that he completed the program. As stated, the Veteran has reported having multiple jobs throughout the claim period. In this regard, October 2018 VA treatment records document the Veteran’s report that he was working at a job that required walking 10,000 to 15,000 steps per day. He reported having bilateral foot pain, but improvement in back pain, and he stated that “he feels pretty good today.” In November 2018, he reported an increase in pain due to overperformance at his job pushing heavy carts and that he was actively seeking a less labor intensive job. A review of December 2019 VA treatment records document the Veteran’s report that he accepted a job offer in Philadelphia, but was uncertain about the start date. While lay and medical evidence of record demonstrates the limitations caused by the Veteran’s service-connected disabilities, the Veteran has failed to provide the information necessary to support a finding of a TDIU. In that regard, the AOJ attempted to develop the issue of entitlement to a TDIU by requesting employment information. However, in May 2017, the Veteran reported that his prior employers had “shutdown.” To date, the Veteran and his employers have failed to submit a VA Form 21-4192. Although VA has a duty to assist in the development of a 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 Veteran is competent to report that his service-connected disabilities preclude him from working, as the question of whether a veteran can perform the physical and mental acts required by employment at a given time is one about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Nevertheless, although the Board acknowledges the limitations of the Veteran’s service-connected disabilities, the preponderance of the evidence does not support a finding that his service-connected disabilities, alone, preclude him from securing and following all substantially gainful employment. As discussed above, the Veteran has held multiple jobs throughout the claim period, and as recent as December 2019 he reported having a job offer. There is no indication that he cannot perform at least non-physical employment. On the contrary, he has reported working as a delivery driver pushing carts, working at a job that required him to walk up to 15,000 steps per day, and as a legal administration specialist at VA. Therefore, after considering all the evidence of record, the Board finds that the Veteran’s service-connected disabilities did not, alone, produce unemployability, nor have they prevented him from securing and following all substantially gainful employment consistent with his education and occupational experience at any time during the claim period. (CONTINUED ON NEXT PAGE) For the foregoing reasons, the preponderance of the evidence is against entitlement to a TDIU. The benefit-of-the-doubt doctrine is therefore not for application in this instance and entitlement to a TDIU is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.