Citation Nr: 21027048 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-26 794 DATE: May 4, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not prevent him from securing or following substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for the assignment of a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1985 to September 1986. This matter is on appeal from an August 2012 rating decision. In August 2017, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. The Board previously remanded this matter in March 2018 and July 2020. A TDIU In his August 2009 VA Form 21-8940, the Veteran wrote that he last worked full-time in 1998 and became too disabled to work in 2008, but his disability first affected full-time employment in 1995. He wrote that he last worked at self-employment in electrical work. He did not indicate if he left this job because of his disability, but he marked that he had not tried to obtain employment since becoming too disabled to work. He identified the service-connected disability preventing him from securing or following any substantial gainful employment as his back disability. He wrote that he had a high school education with one year of military equivalent college. During the entire appeal period, the Veteran was service connected for (1) lumbar strain status post L4-5, L5-S1 fusion. Beginning from January 2009, he was additionally service connected for (2) radiculopathy of the right lower extremity; (3) left lower extremity sciatic nerve neuritis; and (4) erectile dysfunction without penile deformity. From June 2020, additional service-connected disabilities included (5) ulcer disease status post gasterectomy with scars; and (6) stable surgical scar secondary to gasterectomy. From January 2019, he was additionally service connected for (7) left lower extremity external cutaneous nerve; and (8) right lower extremity cutaneous cutaneous nerve. Beginning September 2019, he became service connected for (9) unspecified bipolar and related disorder with unspecified anxiety disorder. A. Applicable Law 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). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). B. Discussion The question for the Board in this case is whether the Veteran's service-connected disabilities alone were of sufficient severity to make him unable to secure or follow a substantially gainful occupation consistent with his education, skill, and training beginning from August 2009. As the Board noted in its July 2020 remand, there is initially a threshold question as to the Veteran's employment history. The Veteran's Social Security Administration (SSA) records are consistent with the Veteran's report of past work in primarily physical jobs. However, where he wrote in his August 2009 VA Form 21-8940 that he became too disabled to work in 2008, he wrote in other statements in support of his claim that he became totally disabled in June 2010. See, e.g., October 2012 and February 2013 Veteran statements. More recently, he was seen at a VA emergency room in June 2017, where he reported working with a company involved in rental property maintenance. Three months later, in September 2017, he was again seen at the VA emergency room after falling off a ladder four days prior. (It is not clear if this incident is related.) This evidence indicates that he engaged in some form of potentially gainful employment, or at least work-like activities, during a time when he asserts that he was unemployable. The Board last remanded the matter to obtain further information regarding his employment history, including an updated VA Form 21-8940. The RO sent him a letter in July 2020 asking that he complete and return the Form 21-8940. In August 2020, he asked for an additional 30 days as he needed help filling out the form and was trying to obtain assistance from VA or his appointed representative. Although greater than 30 days passed, he did not then submit a completed form. VA's duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193; see also Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019). A veteran is accountable for his willful failure to cooperate with VA in developing his claim, and such conduct exposes a veteran to the possibility of an adverse finding of fact. See Turk v. Peake, 21 Vet. App. 565, 570-71 (2008) Here, there is insufficient evidence of record to find that the Veteran worked less than a substantially gainful occupation during the appeal period. The requested information was necessary to make this determination. Although he gave good cause in August 2020 for why he did not complete the form, he was provided greater than the requested 30 days to seek assistance (when considering that the RO did not take further adjudicatory action on the case until November 2020), but he did not return the form, including up to present. The relevant information was solely within his control to produce. His nonresponse to the Board's request for further information suggests that an adverse finding of fact should be made. See Turk, 21 Vet. App. at 570-71. There is, in fact, some affirmative evidence that he earned a significant income. For example, a September 2019 VA examination notes "buying sprees (spending $1000 at one time)." In January 2018, his ex-wife wrote that the Veteran was driving around in expensive cars, flashing money, and spending it on others by buying them cars, clothes, and other costly items and services. It is true that the evidence also shows that the Veteran intermittently reported being homeless and living in his truck. See, e.g., 5/5/2018 VAMC Messaging; 12/5/2019 VA Homeless Program; 2/3/2020 VA Nutrition. This does not, however, give rise to a presumption that he did not earn income above the poverty threshold. Rather, based on the evidence currently of record, it can only give rise to an inference that any earned income was not spent on housing. At the least, the evidence currently of record is insufficient to show that the Veteran's work activities were marginal. Even if the evidence showed that the Veteran's activities were no more than marginal work, the remaining evidence does not credibly show that he was unable to work a substantially gainful occupation due to his service-connected disabilities. It is true that there is considerable favorable evidence supporting the appeal. For example, at an April 2011 VA examination, the Veteran reported limited walking due to back pain; he could walk only 20 feet on average. He reported stiffness, fatigue, spasms, decreased motion, paresthesia and numbness, with weakness, and pain exacerbated by any physical activity. He could not function at the time of pain with or without pain medication, and flares caused further pain, weakness, and limitation of motion. In July 2015, his primary VA provider wrote that, in the provider's opinion, the Veteran was significantly disabled and unemployable due to his inability to participate in any activity of gainful employment because of his multiple impairments which include (but not limited to) chronic pain syndromes (spinal pain and abdominal laparotomy scar neuropathies) and psychiatric illness. A VA spine examiner in May 2016 noted the Veteran's reported that he could not lift anything or bend because of his back pain. The examiner opined that the Veteran was unable to resume his former occupation as an Electrician's Assistant because his back pain and right lumbar radiculopathy impaired his ability to bend at the waist, climb any ladders, lift electrical equipment, etc. The examiner found that he was physically capable of sedentary employment. A VA spine examiner in July 2018 noted the Veteran's report that his condition was worse, such that he had difficulty bending, lifting, and carrying. The examiner opined that the functional impact of the Veteran's disabilities involved difficulty bending, lifting and carrying, which affected physical employment by interfering with picking up and carrying heavy objects. There was also difficulty with prolonged standing and walking, which affected physical employment by interfering with working in large buildings such as a warehouse, or outside walking long distances or on uneven terrain. The examiner found no effect on sedentary employment. These examples are representative of other assessments during the appeal period. Despite these indications that he was limited in his physical capacity to work, as indicated, he elsewhere reported physical activities inconsistent with his statements to the examiners. Again, although he reported to the May 2016 VA examiner that he could not lift anything, he sought treatment in a VA emergency room in September 2016 for upper back pain after lifting and pulling a muscle while changing the brakes on his truck. Likewise, the May 2016 VA examiner specified that the Veteran could not climb ladders, but during VA treatment in June 2017, he reported working with a company involved in rental property maintenance. Three months later in September 2017, he sought treatment at the emergency room after falling off a ladder four days prior injuring his back. There are other inconsistencies bearing on the Veteran's credibility. For example, he reported during VA treatment in September 2014 that he did not drive independently. Yet, in July 2015, he reported that he would be willing to drive 130 miles to his VA Medical Center to pick up his pain medication. In April 2019, he verbally threatened a VA emergency room physician who accused him of drug-seeking behavior. In December 2019, his VA provider noted that he had a positive urine drug screening although the Veteran strongly denied a history of abuse. The Board's last remand requested records from SSA's Office of Inspector General (OIG) concerning an investigation for possible fraud. In February 2021, the SSA OIG informed VA that it had no information that would be responsive to the Board's request. Hence, his credibility is not discounted on this basis. Nonetheless, overall, the Board finds that the Veteran's reports during the multiple VA examinations to be inconsistent with the physical abilities he endorsed in other contexts. Hence, the VA opinions, where they indicated an inability to perform a physical occupation, are nonprobative. Accordingly, the evidence currently of record does not show that the Veteran was precluded by his disabilities from a substantially gainful occupation. The exact extent and nature of his duties is unclear in light of his nonproduction of evidence that would have informed this question. However, the evidence currently of record tends to indicate that he was able to continue performing the physical activities consistent with his past employment. As such, the preponderance of the evidence is against the claim. Thus, the benefit-of-the-doubt doctrine is not applicable, and a TDIU is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.