Citation Nr: 21024630 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-04 924 DATE: April 23, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is denied. FINDING OF FACT Throughout the period on appeal, the evidence did not show that the Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to December 1965. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Detroit, Michigan. This case was most recently before the Board in January 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the Board directed the AOJ to provide the Veteran with notice of how to substantiate a claim for entitlement to a TDIU, provide him with a VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that he supply the requisite information. On remand, the AOJ sent such request and notice to the Veteran. See Subsequent Development Letter, January 7, 2021; see also Notification Letter, January 8, 2021. Thus, the AOJ substantially complied with the January 2021 Board remand directives. See 38 U.S.C. § 5103A (b) (2012); Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The case has now been returned to the Board for appellate action. Entitlement to a TDIU The Veteran generally asserts he is entitled to a TDIU. Specifically, his representative argues that the Veteran is entitled to a TDIU and that a VA Form 21-8940 is not required to support his claim because the information can be found in his claims file. Additionally, the Board notes that the January 2021 Board remand found that the claim for entitlement to a TDIU was raised by the record in a March 2020 VA examination report indicating that the Veteran’s residual conditions, to include traumatic brain injury (TBI) impacted his ability to work. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 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. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Disabilities of one or both upper extremities or one or both lower extremities (to include the bilateral factor), disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system are considered as one disability for TDIU purposes. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when 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 (1991) (level of education is a factor in deciding employability); see 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). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the instant case, the Veteran is service-connected for TBI, rated as 40 percent from February 27, 2013; vestibulopathy associated with TBI, rated as 30 percent from February 27, 2013; seizure disorder associated with TBI, rated as 10 percent from February 27, 2013; tinnitus, rated as 10 percent from June 11, 2014; hearing loss, rated as noncompensable from June 11, 2014. The Veteran’s combined rating was 60 percent prior to June 11, 2014 and 70 percent thereafter. The Board notes that the TBI, vestibulopathy associated with TBI and seizure disorder associated with TBI are disabilities resulting from a common etiology. Thus, the criteria for a schedular criteria have been met. However, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to appropriate VA officials for consideration of assignment of a TDIU rating. 38 C.F.R. § 4.16(b). In this instance, the AOJ sent the Veteran a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) in January 2021 and instructed him to complete this form. The Veteran did not complete the VA Form 21-8940, which would have provided relevant information regarding his claim of entitlement to a TDIU. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. 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."). The Board noted in its January 2021 remand that a VA Form 21-8940 and the AOJ indicated in a February 2021 SSOC that such form had not been completed by the Veteran. While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to properly address a claim for TDIU. Here, the evidence is against finding that the Veteran is precluded by his service connected disability from obtaining and maintaining any form of gainful employment consistent with his education, experience, and skillset. The record shows that the highest level of education attained by the Veteran is high school. The record reflects that the Veteran is retired, and the last indication of employment was in 2011. See VA treatment record, December 14, 2014 (indicating the Veteran fell at work in 2011). The Veteran reported that he was receiving retirement benefits from a car manufacturing company in a February 2019 VA treatment note. In an April 2014 VA TBI examination, the Veteran reported that he had worked for a home energy company. During service, the Veteran’s military occupational specialty (MOS) included armor crewman. More specific information regarding the Veteran’s employment history is not available in the records. The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Turning to the evidence, the Veteran stated that he experienced headaches and seizures due to an in-service head injury and that he could not work for a long period due to the medications prescribed. VA Form 21-4138 Statement in Support of Claim, August 22, 2013. April 2014 VA examination reports for the Veteran’s TBI, seizures, and headaches indicate that such conditions did not impact his ability to work. In September 2014, the Veteran reported that he experienced problems with judgment, migraine headaches, vertigo or dizziness, balance problems, hearing loss, tinnitus, depression; and that his TBI has affected his life over the years. See VA Form 21-4138 Statement in Support of Claim, September 12, 2014. He reported that he did his best to tolerate the residual problems, but eventually was having many problems on the job and was pressured to see doctors. Id. He exhibited some strange behavior at work, and was having problems with black-out spells that caused him to fall. Id. A September 2014 VA audiology examination report indicates the Veteran’s hearing loss and tinnitus impacted his ability to work due to difficulty falling asleep, difficulty concentrating in quiet areas, having to ask people to repeat, and turning up the television to hear. VA treatment records indicate the Veteran did not have any obvious or reported difficulty in employment, social, or daily living situations due to modified global deterioration scale for staging cognitive deficit and related elopement risk evaluation. See e.g. VA treatment record, November 23, 2015. A March 2020 VA TBI examination report indicates the Veteran’s TBI impacted his ability to work due to memory, concentration loss, and neurobehavioral changes that do not allow him to engage in fulfilling his daily activities. A March 2020 VA ear condition examination report indicates the Veteran’s vestibulopathy impacted his ability to work due to not being able to walk on his own, poor balance, and a history of falls. A February 2021 VA Form 21-0820 Report of General Information indicates that the Veteran had suffered several strokes. VA Form 21-0820 Report of General Information, February 3, 2021. Additionally, prior to the period on appeal, a December 1974 letter from Dr. Gonzalez indicates that the Veteran had difficulties at work to include adjusting the wrong valve; feeling like he was “sabotaging his own job”; experienced black out spells and strange behavior, that occurred frequently, and were characterized by an aura of dizziness; and falling, without convulsions. Moreover, a February 1975 letter from the Veteran indicates that the Veteran was placed on extended disability, without pay, beginning February 19, 1975, due to a disability beginning November 21, 1974. See Correspondence, June 10, 1975. Based on the foregoing, and in consideration of the pertinent medical findings, including the Veteran’s reports at the various VA examinations of record and during treatment at VA medical centers, where he indicated his barriers to employment included difficulty concentrating, falls, dizziness, vertigo, and seizures, the Board finds that the Veteran is not unable to secure and follow a substantially gainful occupation by reason of his service connected disabilities. In this regard, the Veteran’s TBI has been found to impact his ability to work due to his memory, loss of concentration, and difficulty in engaging in fulfilling his daily activities. Additionally, VA examination reports indicate that the Veteran’s hearing loss, tinnitus, and vestibulopathy impacted his ability to work due to difficulty hearing, difficulty concentrating, and inability to walk on his own. However, the Board notes that the Veteran shown to be employed as recently as 2011, and that he worked in the 1970s and thereafter, in spite of his symptoms. Notably, his employer in 1975 placed him on extended disability for the Veteran to seek treatment for his blackouts, falls, and strange behaviors at work. Additionally, the Veteran noted that he fell at work in 2011 but did not indicate what caused the fall. The Veteran’s specific employment history, to include the nature of his profession following service, is not clear from the current record. Therefore, the Board finds that the Veteran was able to work in spite of his falls, blackouts, TBI residuals, and the combination of impairment of his other service-connected disabilities, to include hearing loss, tinnitus, and vestibulopathy. The Board notes the arguments of the Veteran’s representative in the March 2021 submission that awarding a TDIU is not precluded without submission of a VA Form 21-8940 because the evidence of record supports entitlement to a TDIU. The Board notes that in the absence of a completed VA Form 21-8940, it must rely upon the other evidence in the record. The Board also notes that an award of TDIU is predicated on the inability to obtain and maintain gainful employment as a result of service-connected disabilities. Here, the Veteran has been shown to not be precluded from obtaining and maintaining substantially gainful employment as a result of his service-connected disabilities. Although the Veteran did not submit a completed VA Form 21-8940, the evidence of record does not show that the Veteran’s service-connected disabilities precluded employment. Rather, as discussed above, the Veteran was able to maintain employment for many decades, in spite of the symptoms from his service-connected TBI, hearing loss, vestibulopathy, and tinnitus. This argument is therefore without merit. Therefore, based on the foregoing, the Board finds that, while the Veteran’s service-connected disabilities resulted in some impairment in occupational functioning, which is represented by his currently assigned ratings, such do not render him unable to secure or follow a substantially gainful occupation. Therefore, the Board finds that the Veteran’s service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and a referral for extraschedular consideration for a TDIU is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.