Citation Nr: 21027111 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-10 957 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 is not rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of service-connected disabilities for any period on appeal. CONCLUSION OF LAW The criteria for TDIU have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1979 to December 1986. This matter is on appeal from a January 2014 rating decision issued by the Regional Office (RO). The Veteran filed a notice of disagreement in February 2014. A supplemental statement of the case was issued in February 2016. The Veteran filed a substantive appeal in March 2016. An administrative decision, issued by the VA Director of Compensation and Pension, was submitted to the record in June 2016. A supplemental statement of the case was issued in July 2016. The Veteran testified in Togus, Maine, at a Board videoconference hearing in April 2019 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. This matter was previously before the Board in September 2019. The Board denied entitlement to TDIU. The Veteran appealed the September 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC). A September 2020 Order by CAVC adopted a Joint Motion for Remand (JMR) filed by the parties. The parties agreed that the Board should have discussed the Veteran's education, work history, and training and assess the impact of his service-connected conditions on his physical and mental ability to perform the types of activities required by the occupation in question. The Board also should have addressed favorable evidence. In March 2021, the Board remanded the issue in order to obtain an updated application for increased compensation based on unemployability (VA Form 21-8940) from the Veteran to include details about his "home business" reported in the June 2016 VA examination that was not reported on the previous VA Form 21-8940. An updated VA Form 21-8940 has not been associated with the record. An April 2021 supplemental statement of the case (SSOC) denied the issue on appeal. In April 2021 correspondence, entitled SSOC Notice Response, the Veteran indicated that there was no additional information or evidence to submit. An April 2021 appellate brief was filed, but there was no mention of submitting an updated VA Form 21-8940. Duties to Notify and Assist The Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (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). 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 Director, 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 nonservice-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 United States 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 nonservice-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. See 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 At the April 2019 Board hearing, the Veteran testified that the nonservice-connected colon cancer and its associated residuals was the primary cause of the unemployability. The Veteran's representative claimed that the conditions that are keeping the Veteran from being able to work were caused by the treatment of colon cancer, and that colon cancer should be service connected. The representative acknowledged that the VA medical opinion was that it is the residuals of the chemotherapy from the colon cancer that was causing the Veteran not to be able to work. The representative reported that he will be filing a claim under 38 U.S. Code § 1151 to address the colon cancer and its residuals and issue that is not on appeal before the Board in the instant decision. The Veteran also testified to a post-service workplace injury with "Topsham," injuring the left wrist and forearm. Significantly, a September 2011 VA Form 21-8940 shows the Veteran reported receiving $1,400 per month in disability benefits from the City of Topsham, Maine. The Veteran briefly mentioned two in-service motor vehicle accidents and went on to explain that the nonservice-connected neuropathies in both legs caused him to be weak and fatigued, impacting his ability to work. After a review of all the evidence, lay and medical, the Board finds that the Veteran has not been rendered unable to obtain or maintain substantially gainful employment due to service-connected disabilities. Rather, the weight of the evidence shows that the Veteran is unable to maintain substantially gainful employment due to non-service-connected disabilities that include colon cancer and residuals, neuropathies in both legs, neck disorder, back disorder, headaches, and post-service left wrist and forearm injury. According to the February 2015 Veteran's application for increased compensation based on unemployability (VA Form 21-8940), the Veteran claimed that he became too disabled to work on January 1, 2011. In the June 2011 VA examination, the Veteran reported that he worked as a UPS driver after service separation, then as a landfill foreman for eight years, then ran his own handyman business for several years. In the February 2015 VA Form 21-8940, the Veteran explained that he was a score keeper at the Naval Air Station from January 1997 to January 2011. The Veteran checked the box that he has not tried to obtain employment since he became too disabled to work. The Veteran also reported that he graduated from high school. See February 2015 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Significantly, a September 2011 VA Form 21-8940 shows the Veteran reported receiving $1,400 per month in disability benefits from the City of Topsham, Maine. An April 2011 VA Form 21-8940 represents that the Veteran reported that unemployability was due to the service-connected right elbow disability and the service-connected right ulnar neuropathy, as well as a nonservice-connected back disorder. According to the record, the Veteran is service connected for neuropathy in the left upper extremity rated at 20 percent from June 22, 2001 and increased to 30 percent from September 30, 2011, cervical strain rated at 10 percent from June 22, 2001 and increased to 20 percent from September 30, 2011, right foot plantar fasciitis rated at 10 percent from June 22, 2001 and increased to 20 percent from September 25, 2019, scar on the right foot rated at 10 percent from June 22, 2001 and decreased to 0 percent from August 1, 2013, limitation of flexion in the left elbow rated at 10 percent from December 11, 2003, impairment of supination and pronation in the left elbow rated at 10 percent from September 25, 2019, and a linear scar on the right foot rated at 0 percent from September 30, 2011. The service-connected disabilities meet the combined rating percentage threshold requirements under 38 C.F.R. § 4.16(a) for TDIU eligibility. The weight of the evidence, both lay and medical, shows that the Veteran is not unable to obtain (secure) or maintain (follow) substantially gainful employment due to the service-connected disabilities. The Veteran has repetitively claimed and the medical evidence has established that the nonservice-connected colon cancer precluded the Veteran from working. The evidence also shows reported symptoms or limitations from other non-service-connected disorders, including neuropathies in both legs, back disorder, headaches, and post-service left wrist and forearm injury. At the June 2011 VA examination, the Veteran had reported no difficulty with the activities of his daily life, excluding washing his back, and that he required no assistance with housework, financial matters, or shopping. The Veteran submitted to several VA examinations in December 2011. The VA examiner found less movement than normal and pain on movement in the neck. Upon examining the left elbow, the VA examiner found pain and increased sensitivity resulting in some sleep impairment. The VA examiner found pain and stiffness in the right foot while standing, walking, and resting, resulting in decreased mobility. The Veteran submitted to several VA examinations in February 2013. The VA examiner noted that the nonservice-connected colon cancer and its associated chemotherapy treatment caused fatigue, weakness, weight loss, loss of appetitive, nausea, diarrhea, emesis, drowsiness, sensitivity to cold, headaches, and neuropathy in the feet. When examining the service-connected disabilities, the VA examiner noted moderate pain in the right foot, one painful scar on the right foot, and slight limitation of range of motion of the left elbow due to pain. The VA examiner also found limitation in range of motion in the neck with some functional loss due to the pain on movement, but also found normal muscle strength and reflexes. In the June 2016 VA examinations, the Veteran reported that he does "limited work on his home business" of managing three properties, the duties of which are bookwork and cutting the grass with a ride-on mower. The VA examiner explained that the non-service-connected, chemotherapy-induced peripheral neuropathies limit all physical work activities and that the service-connected left elbow strain only prevented repetitive work with the left elbow. The VA examiner noted that the right foot disability prevented the Veteran from prolonged standing or walking. With regard to the neck disability, the VA examiner assessed that the Veteran is unable to drive, needed breaks if doing extensive reading or computer work, and cannot turn or bend the head completely. The March 2021 Board remand requested additional information about this "home business," which has yet to be provided on the record. Instead, the Veteran submitted correspondence in April 2021, indicating that he has no other information or evidence to submit. The Veteran submitted to VA examinations again in October 2019. The VA examiner assessed that the Veteran's employment was impacted by the left elbow in that it decreased lifting capacity with the left elbow and by the right foot in that there was decreased capacity for extended weight bearing. The VA examiner assessed that the neck disability resulted in limitation of range of motion and pain, but also found that muscle strength, reflexes and sensory tests were all normal. The Veteran reported increased pain with sleeping and driving, but the VA examiner found that the neck disability did not impact employment. VA has also received numerous Social Security Administration (SSA) records related to the Veteran's past SSA disability claim. Per the SSA records, the SSA disability claim was primarily based upon the Veteran's non-service-connected back and headache disorders. The SSA records also reflect that while applying for SSA disability benefits the Veteran specifically reported that the post-service workplace injury caused pain in the neck, shoulder, and elbow, as well as headaches. Based on the foregoing, the Board finds that the weight of the evidence demonstrates that the criteria for entitlement to TDIU have not been met. While the Veteran has some physical limitations due to the service-connected disabilities, the Veteran himself has repeatedly reported that his lack of employment is due to the non-service-connected colon cancer, and this assertion is supported by findings and assessments in the medical evidence. The weight of the evidence shows that the Veteran is unable to maintain substantially gainful employment due to non-service-connected disabilities that include colon cancer and residuals, neuropathies in both legs, neck disorder, back disorder, headaches, and post-service left wrist and forearm injury. For these reasons, the preponderance of the lay and medical evidence is against a TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.