Citation Nr: 21023322 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-24 004 DATE: April 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence of record does not show that the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for establishing entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1980 to July 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in January 2021, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran a chance to submit a VA Form 21-8940 and give him an opportunity to update his employment history. The RO provided the Veteran with a VA 21-8940 and gave him an opportunity to update his employment history. As such, the Board finds that the AOJ substantially complied with the directives in the January 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU—Legal Criteria Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, 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). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as “one disability” for these purposes. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see, e.g., Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). A veteran’s age and/or impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Marginal employment or employment in a protected environment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran’s ability to obtain and maintain employment consistent with his or her education and experience. Analysis The Veteran contends that he is entitled to a TDIU as a result of his service-connected disabilities. As an initial matter, the Board observes that the Veteran meets the schedular criteria for TDIU beginning September 23, 2020. The Veteran has a combined schedular rating of 80 percent disabling with lumbar spine degenerative disc disease at 40 percent disabling; lower left extremity radiculopathy at 40 percent disabling; lower right extremity radiculopathy at 20 percent disabling; painful scar, status post lumbar spine discectomy at 10 percent disabling; and residual scar associated with degenerative disc disease at a non-compensable 0 percent rating. Although the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU, the Board finds that the evidence establishes that his service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation during the pendency of the claim. The Veteran last submitted a VA Form 21-8940 Application for Increased Compensation Based on Unemployability in January 2005 wherein he indicated that he was last employed in 2004 as a truck driver. He indicated that he had two years of college education and indicated that he had additional training in auto parts, sales, and as an auto-mechanic. However, the evidence in the record indicates that the Veteran is currently engaged in substantially gainful employment. Notably, the Board finds that his recent VA treatment records note that the Veteran is currently employed as a truck driver. The Board specifically notes a December 2, 2018, treatment note indicating the Veteran wears wrist braces while truck driving; an April 1, 2019, treatment note indicating the Veteran is currently employed as a truck driver from Mississippi to Louisiana; an April 10, 2019, treatment note indicating that the Veteran works as a truck driver; and a March 9, 2020, treatment note indicating the Veteran’s current occupation as “Truck Driver.” As part of both the prior August 2019 and January 2021 Board Remands, the Veteran was given an opportunity to submit an updated VA Form 21-8940. The RO after both Remands notified the Veteran of his need to submit an updated form, how to do so, and provided the Veteran with new Form 21-8940s. Additionally, the RO provided the Veteran with a VA Form 21-4192 Request for Employment Information for the Veteran’s employer to fill out. In the prior January 2021 Remand, the Veteran was reminded that the duty to assist is not a one-way street, see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and it was incumbent upon him to cooperate with the VA in developing his claims. Further, the Veteran was informed that failure to comply with this request it could result in his TDIU claim being denied. However, to date, the Veteran has not submitted any updated forms. Based on the evidence of the record, the Board finds that the Veteran is currently engaged in substantially gainful employment. The Veteran, after being provided multiple opportunities, has provided no evidence that his current occupation is in a protected environment, or of a type other than substantially gainful. Additionally, the Veteran’s employer has not submitted a VA Form 21-4192 indicating that his employment is not substantially gainful. The Board finds that the Veteran does not meet the criteria for a TDIU. In this regard, the critical question is whether the Veteran’s service-connected disabilities would cause him to be unable to work, notwithstanding his age or other nonservice-connected problems. The Board acknowledges the Veteran's statements with respect to the symptoms of his disabilities and note the difficulties the Veteran experiences. The Board finds that this evidence is competent evidence within his personal experience. Although those reported problems may reflect impaired capabilities due to the service-connected disabilities, they do not suggest unemployability. Instead, as indicated by the record evidence, the Veteran has secured and is following a substantially gainful occupation. (Continued on the next page)   For the reasons discussed above, the preponderance of the evidence is against the claim of entitlement to TDIU, pursuant to 38 C.F.R. § 4.16, and that the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.