Citation Nr: 21025049 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-28 573 DATE: April 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400; 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1965 to July 1969. In an October 2020 decision, the Board found the issue of entitlement to a TDIU was raised by the record. The Board remanded the issue to provide the Veteran with proper notice concerning the requirements for a TDIU claim, and to allow the agency of original jurisdiction (AOJ) to adjudicate the matter in the first instance. The AOJ has substantially complied with the October 2020 remand directives, and the Board will proceed with a decision. A total disability rating 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. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. In this case, the Veteran meets the schedular criteria for consideration of a TDIU. As it pertains to the current appeal, the Veteran is service-connected for an anxiety disorder with an evaluation of 70 percent from March 31, 2010; a lumbosacral strain with an evaluation of 20 percent from August 5, 2010; gastroesophageal reflux disease with an evaluation of 10 percent from August 5, 2010; radiculopathy of the right lower extremity with an evaluation of 10 percent for incomplete paralysis of the sciatic nerve from January 27, 2020, and 10 percent for incomplete paralysis of the femoral nerve from January 27, 2020; and radiculopathy of the left lower extremity with an evaluation of 10 percent for incomplete paralysis of the sciatic nerve from January 27, 2020, and 10 percent for incomplete paralysis of the femoral nerve from January 27, 2020. The Court has held that the phrase “unable to secure and follow a substantially gainful occupation” has an economic component and a noneconomic component. Ray v. Wilkie, 31 Vet. App. 58, 67-76 (2019). The economic component considers the Veteran’s ability to secure and follow an occupation earning more than marginal income. See 38 C.F.R. § 4.16a (marginal employment shall not be considered substantially gainful employment). The noneconomic component considers such factors as the Veteran’s employment history, education, skill, training, physical ability, and mental ability. The Court has also held that the Veteran’s ability or inability to engage in substantial gainful activity has to be looked at in a practical manner, and the test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one, but a factual determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As an initial matter, it is not clear from the evidence of record whether the Veteran meets the economic criteria for consideration of entitlement to a TDIU, and VA’s efforts to obtain clarity have been futile. The Veteran reportedly worked as a letter carrier for approximately 30 years. However, the Veteran’s last year of employment as a letter carrier has been reported at various times as 2011, 2012, and/or 2013. In a December 2018 VA social work note, the Veteran reported he was employed in a job parking cars, working approximately seven hours per day, five days per week. See also December 2018 VA psychiatry note. While the Veteran reported his employer would be shutting down in January 2019, the Veteran did not indicate that his service-connected disabilities impaired his ability to perform the requirements of such employment. The Board adds that the Veteran’s current employment status is not known based on the evidence of record. In compliance with the October 2020 Board remand, the AOJ advised the Veteran and his representative about what is needed to substantiate a claim for a TDIU. The AOJ requested the Veteran complete and return a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, as well as a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. See October 2020 VA letter with 38 U.S.C. § 5013 notice. To date, the Veteran has not completed and returned the requested forms or otherwise submitted the requested information about his employment or income history, nor has the Veteran’s representative supplemented the record with any of the Veteran’s employment information. The Board finds that VA’s efforts to adequately develop a claim for TDIU, which was raised by the record, and obtain necessary information to make a proper determination as to whether he is unemployable for purposes of a TDIU have been frustrated. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA’s duty to assist a claimant is not always a “one-way street,” and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence). Notwithstanding the above, the Board has also considered the noneconomic component of the phrase “unable to secure and follow a substantially gainful occupation.” The Veteran reported his education included a certificate in marketing management from a technical college, an associate degree in business administration and marketing from a junior college, and two years of university-level education in business administration. See March 2016 VA Form 28-1902w, Rehabilitation Needs Inventory. The Veteran’s employment history includes warehouse clerk, customer service, letter carrier, and based on December 2018 VA treatment records, parking attendant. In an April 2016 VA counseling record associated with Vocational Rehabilitation & Employment (VRE) records, the Veteran reported functional impairment due to his service-connected anxiety disorder included inability to handle pressure, inability to be in crowds of people, difficulty concentrating, and panic attacks. The Veteran reported a history of conflict with supervisors. The Veteran reported functional impairment due to his service-connected lumbosacral strain included an inability to lift more than 40 pounds, and difficulty walking distances and bending. The counselor reported the Veteran’s associate degree and certification in business administration and marketing were likely no longer viable because the Veteran had never utilized such skills and did not recall any of the training. The counselor also indicated the Veteran lacked other transferrable skills that would qualify him for suitable sedentary employment that would not aggravate his service-connected disabilities. In contrast, in April 2017, the Veteran’s private mental health provider indicated the Veteran’s psychiatric disorder did not affect the Veteran’s ability to work. Dr. S.K. reported the Veteran was able to work independently, and would be able to work full-time, if he desired. In April 2017, the Veteran’s private treating physician, including for his service-connected low back disability, reported the Veteran was capable of working full-time, and that a sedentary administrative work environment was a reasonable goal. The Board has considered the evidence of record, and finds that the Veteran’s service-connected disabilities (either alone, or in combination) have not been shown to result in an inability to secure or follow substantially gainful employment. The Board recognizes that the Veteran’s service-connected disabilities may limit the Veteran from working in positions that require manual labor, regular interactions with crowds of people, and jobs requiring attention to detail. However, the evidence does not demonstrate that the Veteran would be precluded from employment that allows him to work independently and affords him the ability to alternate positions. Notably and crucially, notwithstanding the conclusions described above in the April 2016 VA counselling letter, there is evidence in the file that the Veteran was employed as recently as December 2018. See December 2018 VA social work note and VA psychiatry note. While the medical and lay evidence of record demonstrates some limitations that the Veteran would face or accommodations he would potentially need at a place of employment, the evidence as it currently exists, does not show that the Veteran is precluded from gainful employment, or that he would only be able to work in a protected work environment. Notwithstanding the fact that the Veteran reported he was last employed sometime between 2011 and 2013, the subsequent evidence of record shows the Veteran has worked as recently as December 2018. VA has attempted to solicit information from the Veteran and his representative pertinent to the Veteran’s employment and income history, but nothing has been submitted to aid in the evaluation of the Veteran’s recent employment, to include an assessment as to whether such employment is considered marginal or protected in nature. (Continued on Next Page) In sum, the Board is unable to find that the Veteran cannot follow a substantially gainful occupation as a result of service-connected disabilities, and entitlement to a TDIU is denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.