Citation Nr: 21026309 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 13-28 747A DATE: April 30, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT Throughout the appeal period, the Veteran did not meet the schedular criteria for a TDIU, and his service-connected disabilities do not render him unable to obtain or maintain a substantially gainful occupation consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for establishing entitlement to TDIU benefits 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 had honorable active duty service with the United States Air Force from June 1967 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020 and January 2021, the Board remanded the case for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Veteran contends he is entitled to TDIU benefits. After reviewing the evidence of record, the Board finds that TDIU benefits are not warranted. 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. 38 C.F.R. § 4.16. A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). A finding of total disability is appropriate, “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. “Substantially gainful employment” is that employment, “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Throughout the period on appeal, service connection has been in effect for advanced lumbar degenerative disc disease, rated as 10 percent disabling prior to April 27, 2010, and 20 percent disabling thereafter; right lower extremity radiculopathy, rated as 20 percent disabling from February 22, 2013; tinnitus, rated as 10 percent disabling from September 20, 2006; gastroesophageal reflux disease (GERD) with hiatal hernia rated as 10 percent disabling from July 30, 2007; left lower extremity radiculopathy rated as 10 percent disabling from February 22, 2013; right posterior calf scar rated as noncompensable; and erectile dysfunction as noncompensable. His combined evaluation was 20 percent from September 20, 2006; 30 percent from July 30, 2007; 30 percent from February 1, 2009; 40 percent from April 27, 2010; and, 60 percent from February 22, 2013. Thus, he did not meet the schedular criteria under 38 C.F.R. § 4.16. Therefore, entitlement to a TDIU may only be established on an extraschedular basis. In this case, the Board concludes that the Veteran’s service-connected disabilities alone did not present any unusual or exceptional circumstances that would have warranted a referral of the TDIU claim to the Director of the VA Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). In a September 2006 statement, the Veteran reported that he was a lineman and foreman for a Public Power District. A January 2008 VA GERD examination noted that the Veteran was still employed fulltime by the Nebraska Public Power District. The examiner found that his GERD did not have any significant effects of his occupation. A September 2010 VA psychiatric examination report noted that the Veteran retired in September 2008 due to knee and back problems. A June 2011 private treatment record indicated that the Veteran was medically disabled due to his low back disorder. In a December 2012 VA back examination report, the examiner found that the Veteran’s low back disorder impacted his ability to work. The Veteran reported that doing any heavy lifting can flare his back. During an April 2013 VA examination, the Veteran reported that he worked as a construction lineman for 37 years. His erectile dysfunction did not impact his ability to work. In a November 2017 VA back examination report, the examiner found that the Veteran’s low back disorder would likely affect most types of employment that involved standing and walking. The Veteran reported that he could sit down without difficulty. In a November 2019 VA examination report, the examiner found that the Veteran’s low back disorder impacted his ability to work. The Veteran was unable to perform tasks requiring bending, stooping, or lifting. Based on the foregoing, the Board concludes that this case does not present any unusual or exceptional circumstances that would justify a referral of the TDIU claim to the Director of the VA Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). The Board notes that “[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.” 38 C.F.R. §§ 4.1 and 4.15; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm). In this case, however, the Veteran did not provide the requested VA Form 21-8940, and, therefore, the Veteran’s file lacks complete information about the Veteran’s educational history and employment history. There is limited information regarding his medical retirement, employment history, and educational background. While the AOJ has tried to obtain additional evidence, neither the Veteran nor his representative has provided it. The duty to assist a Veteran in the development of evidence pertinent to a claim is not a “one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, the Veteran failed to cooperate with VA’s attempts to develop the claim, and the record that is before the Board is insufficient to determine that the Veteran was unable to secure or follow substantially gainfully employment as a result of his service-connected disabilities. Thus, the Board finds that the weight of the evidence is against the Veteran’s claim. The schedular requirements for a TDIU are not met at any time, and the evidence does not support referral of this TDIU for extraschedular consideration. Accordingly, this claim for a TDIU must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. McKinley, 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.