Citation Nr: 21025987 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-50 887 DATE: April 29, 2021 ORDER For the period from August 2, 2011, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT From August 2, 2011, the Veteran was not rendered unable to obtain or maintain substantial gainful employment as a result of service-connected disabilities. CONCLUSION OF LAW For the rating period from August 2, 2011, the criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from September 1979 to October 1983, and from July 1987 to March 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision from the Regional Office (RO), which, in pertinent part, granted service connection for a low back disability, assigning a 20 percent initial disability rating effective August 2, 2011. During the pendency of the appeal for a higher rating for lumbar strain, the Veteran testified to unemployability due to the low back disability, which raised an inferred claim for TDIU that attached to the appeal for a higher initial disability rating for the low back disability for the rating period from August 2, 2011. See April 2017 Board hearing transcript; Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). In April 2017, the Veteran testified at a Travel Board hearing from the RO in Indianapolis, Indiana, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. This case was previously before the Board in January 2019 and January 2021. In January 2021, the issue on appeal was remanded to request that the Veteran submit a completed Request for Employment Information form (VA Form 21-4192) or a copy of his tax returns from 2014 to present. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the January 2021 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. TDIU Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Rating Schedule, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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 disabilities shall be rated totally disabled. Submission to the VA Director of Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran 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, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). TDIU Claim is Denied. In November 2020, the Veteran submitted a formal claim for TDIU, asserting that the service-connected low back disability prevented him from securing or following substantial gainful employment. See November 2020 VA Form 21-8940 (Claim). The Veteran represented in his compensation application that he last worked full time on March 15, 2014, and that he became too disabled to work as of March 2014. The Veteran represented that he worked 40 hours a week as a contractor for Telecom Technology Service from September 2012 to March 2014. The Veteran also reported that he had a college education, training in radio communications, and completed additional training in project management from January 2015 to December 2019. See November 2020 Claim. The Veteran’s service-connected disabilities are the low back disability (rated 40 percent); knee disability (rated 20 percent); left lower extremity (LLE) radiculopathy (rated 20 percent); right lower extremity (RLE) radiculopathy (rated 20 percent); right hip disability (rated 10 percent); left hip disability (rated 10 percent); and a residual left knee scar (rated 0 percent). The combined disability rating percentages are 60 percent from August 2, 2011 and 90 percent from March 6, 2015. When considering the service-connected back, left knee, and bilateral hip disabilities as single orthopedic disability from August 2, 2011, the service-connected disabilities meet the combined disability rating requirements set forth in 38 C.F.R. § 4.16(a) for consideration of TDIU, as there is at least one service-connected disability rated 60 percent (the service-connected low back, bilateral hip, and left knee disability) from August 2, 2011, and at least one disability rated 40 percent with a combined disability rating of at least 70 percent from March 6, 2015 forward. Having considered all the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a TDIU. While the evidence of record reflects that the service-connected disabilities caused some functional limitations and impairment, the evidence of record during the relevant period does not show that the service-connected disabilities rendered the Veteran unable to secure or maintain substantially gainful employment. Instead, the evidence shows that, notwithstanding representations of not working, the latest and most probative evidence from the Veteran during treatment shows continued full-time employment. The Board has assessed the impact of the service-connected disabilities on the ability to maintain employment in this case in the context of the Veteran’s education, training, and work experiences. The low back disability has manifested as chronic back pain with range of motion that varied from normal to limitation of flexion that between 10 to 60 degrees. The left knee disability has manifested as some weekly flare ups of pain in the left knee with flexion to 90 degrees and normal extension to 0 degrees. The bilateral hip disability has manifested as chronic hip pain and at times antalgic gait, worse on the left, with limitation of flexion ranging from 40 to 90 degrees on the left and 70 to 95 degrees on the right. The Veteran underwent a left hip replacement in June 2020. Additionally, the bilateral lower extremity radiculopathy has manifested as symptoms of numbness and tingling in the lower extremities, but otherwise preserved muscle tone and strength and intact sensation upon examination. The record does not reflect any treatment or functional impairment associated with the left knee scar. See August 2011, October 2012, February 2013, December 2013, June 2016, October 2016, May 2019, December 2019 private treatment records; August 2011, December 2011, March 2015, April 2015, September 2017, December 2019 VA treatment records; August 2014 Social Security Administration records; April 2013, August 2016, July 2020 VA examination reports. Although the service-connected disabilities have caused some functional impairment commensurate with the degree of compensation the Veteran is receiving, the weight of the evidence of record is against finding that the service-connected disabilities have precluded the Veteran from obtaining (securing) or following (maintaining) substantial gainful employment since August 2, 2011. For the most part, the record shows that the service-connected disabilities have been managed conservatively with medications and physical therapy, except for the left hip replacement in June 2020. While the service-connected physical disabilities have caused chronic pain and limitation of motion, the record reflects that the Veteran reported that he was able to do the recommended exercises despite the physical limitations, and was able to walk four blocks and walk around the backyard playing with his dog. Additionally, the record indicates that the Veteran denied any medical problems at times, including any limitations or problems associated with the back, bilateral hip, left knee, and lower extremity radiculopathy, despite being on Social Security disability. See June 2016, October 2016, May 2019 private treatment records; August 2011, April 2015, March 2020 VA treatment records. Additionally, the Veteran has provided conflicting statements regarding his employment status. Private treatment notes dated from 2011 through 2013 show that the Veteran reported that he was working full time as a telecom engineer installing cell phone towers despite limitations from the service-connected disability. See June 2011, August 2011, February 2012, October 2012, February 2013, October 2013 private treatment records. During the April 2017 Board hearing, the Veteran testified that he has not worked since 2014. A review of the November 2020 TDIU claim shows that the Veteran reported that he last worked March 15, 2014. Years earlier, the Veteran reported that he last worked on April 8, 2014 on his June 2014 SSA application for disability benefits. See May 2014 private treatment record, June 2014 SSA record, April 2017 Board Hearing Transcript, November 2020 Claim. Inconsistent with these representations the Veteran made to obtain VA or SSA compensation, a May 2014 private treatment record (for treatment purposes) shows that the Veteran reported that he was still working full time for a telephone company. The May 2014 contemporaneous lay report is highly probative as the statement was made while seeking private treatment, and it was not made in connection with any pending claim for disability benefits. See May 2014 private treatment record, June 2014 SSA record, April 2017 Board Hearing Transcript, November 2020 Claim. See Federal Rule of Evidence 803(4) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). In April 2020, the RO asked the Veteran to submit a completed VA Form 21-4192 Request for Employment Information (Employment Information Form) in addition to a completed TDIU claim form. In November 2020, the Veteran submitted an incomplete Request for Employment Information form that only included his former employer’s name and address. In the January 2021 Board remand directives, the Board remanded the matter in order to provide the Veteran another opportunity to submit the previously requested Employment Information Form or income tax returns from 2014 to present, as there was insufficient evidence of record to assess the employment status. In a January 2021 letter, the RO provided the Employment Information Form a second time and requested that the Veteran submit the completed from or tax records from 2014 to present in lieu of a completed Employment Information Form. The RO also sent two letters to the Veteran’s former employer, Telecom technology Services, Inc., requesting a completed Employment Information Form. See January 2021, February 2021 correspondence. To date, VA has not received a completed Employment Information Form or the Veteran’s income tax returns from 2014 to present. Neither the Veteran nor the former employer have responded to the multiple requests for information that could have helped substantiate the Veteran’s claim of being unemployed or unemployable. Overall, the contemporaneous evidence as of May 2014 shows that the Veteran was still employed full time, despite other inconsistent lay statements made in connection with applications for disability benefits that he stopped working in March or April 2014. To date, the Veteran has not provided a completed Employment Information Form or income tax returns, which would provide pertinent information regarding the Veteran’s employment status that might support a TDIU claim, and which might have resolved the inconsistent representations on the question of when he terminated full time employment. Although the service-connected disabilities have caused some functional impairment commensurate with the degree of compensation the Veteran is receiving, and the specific functional impairments the Board has noted and considered are caused by each disability, the weight of the evidence of record is against finding that the service-connected disabilities have precluded the Veteran from obtaining (securing) or following (maintaining) substantial gainful employment. The more probative evidence of record shows that the Veteran was still employed full time as of May 2014. There is no additional, subsequent evidence of record to contradict the Veteran’s own, last reported full-time employment as of May 2014, when the Veteran was reporting such history for treatment purposes, and not for compensation. For these reasons, the weight of the evidence of record shows that the Veteran was not rendered unable to obtain or maintain substantially gainful employment by virtue of the service-connected disabilities since August 2, 2011; therefore, the appeal for TDIU must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Moore, Shanna 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.