Citation Nr: 21027451 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-37 317 DATE: May 5, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is denied. FINDING OF FACT Throughout the period on appeal, the evidence did not show that the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU 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 served on active duty from April 1974 to April 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Oakland, California. This case was most recently before the Board in January 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the matter was remanded to furnish the Veteran with a notice letter regarding how to substantiate a TDIU and to complete an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). A February 2021 letter informed the Veteran how to substantiate a claim for a TDIU and requested that he complete a VA Form 21-8940. The Veteran did not respond to this letter. The Board therefore determines that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action. Entitlement to a TDIU The Veteran generally asserts he is entitled to a TDIU. Specifically, the Veteran contends that he is unemployable as a combination of his service-connected right rib disorder and his nonservice-connected back, neck, and other physical disabilities. 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). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant 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. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the instant case, the Veteran is service-connected for a right rib injury, rated as 10 percent disabling from June 27, 2012 and recurrent tinnitus, rated as 10 percent disabling since March 6, 2021. The Veteran combined rating is 10 percent prior to March 6, 2021 and 20 percent thereafter. Thus, the criteria for a schedular criteria have not been met. However, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to appropriate VA officials for consideration of assignment of a TDIU rating. 38 C.F.R. § 4.16(b). The Board notes that pursuant to the January 2021 Board remand, the AOJ sent the Veteran a VA Form 21-8940 in February 2021 and instructed him to complete this form. The Veteran did not complete the VA Form 21-8940, which would have provided relevant information regarding his claim of entitlement to a TDIU. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The Board noted in its January 2021 remand that an updated VA Form 21-8940 was not of record and the AOJ indicated in a March 2021 supplemental statement of the case that such form had not been completed by the Veteran. While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to properly address a claim for TDIU. Here, the evidence is against finding that the Veteran is precluded by his service connected disability from obtaining and maintaining any form of gainful employment consistent with his education, experience, and skillset. The record shows that the highest level of education attained by the Veteran is some college. The record reflects that the Veteran is unemployed, and the last indication of employment was in 2003, 2004, 2008, or 2016. See VA Form 21-8940, July 2, 2012 (showing the Veteran last worked in May 2003 due to his back); see VA Form 21-8940, July 31, 2012 (showing the Veteran last worked in February 2004 due to his upper back and right rib); see VA Form 21-8940, May 28, 2014 (showing the Veteran last worked in 2008 due to his rib injury); see VA treatment record, August 2, 2016 (showing the Veteran last worked earlier that year as a pastor until he quit due to alcohol abuse relapse). During service, the Veteran's military occupational specialty (MOS) included combat engineer. The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Turning to the evidence, the Veteran states that his service-connected rib injury prevented employment. See e.g. VA Form 21-8940, July 2, 2012. As noted above, the Veteran's claim for entitlement to a TDIU is based on service-connected right rib injury, and nonservice-connected disorders to include back, neck, and mental health symptoms. See VA Form 21-8940, July 31, 2012; see VA treatment record, August 2, 2016. Specifically, in his VA Form 21-8940 dated July 31, 2012, the Veteran stated that he was working as a subcontractor for Nissan, and the pain in his back became so great that he had to resign. At a November 2012 VA examination for the right rib, the Veteran reported he was not employed and not retired. He reported he was unemployed due to substance abuse issues requiring psychological help and that there were no significant effects on his general occupation or usual daily activities due to his bruised rib. In a May 2014 VA Form 21-4138 Statement in Support of Claim, the Veteran requested that his entitlement to a TDIU be considered after his other pending issues on appeal for service connection were decided. See VA Form 21-4138 Statement in Support of Claim, May 28, 2014. An August 2016 VA treatment record indicates the Veteran reported his longest job was his job at Nissan and that he worked there for five years but began having back problems and quit. Then, he worked as a pastor of a church but quit when he had a relapse into alcohol earlier that year. See also VA treatment record, September 14, 2018. A January 2020 VA treatment record indicates the Veteran reported constant right rib pain. An April 2021 VA audiological evaluation reflects the Veteran's reports of constant tinnitus, that he had difficulty hearing his grandchildren and that he was retired. Based on the foregoing, and in consideration of the pertinent medical findings, including his reports at the various VA examinations of record and during treatment at VA medical centers, where he indicated his barriers to employment included his right rib, back problems, and mental health symptoms, the Board finds that the Veteran is not unable to secure and follow a substantially gainful occupation by reason of his service connected disabilities. In this regard, service connection is currently in effect for a right rib disorder and tinnitus, each rated as 10 percent disabling. The Veteran's right rib disorder has been shown to manifest in pain and his tinnitus was shown to manifest in difficultly hearing children. However, the Board notes that the Veteran was shown to be employed as recently as 2016 and worked at a Nissan plant and as a pastor in spite of his right rib symptoms. Notably, the Veteran himself asserted that he quit his job at Nissan due to problems with his back and that he quit his job as a pastor due to a relapse with alcohol abuse. Additionally, the Veteran himself initially claimed entitlement to a TDIU based on his back, neck, and right rib in a July 2, 2012 VA Form 21-8940. Therefore, the Board can only assume that the Veteran was able to work in spite of his right rib pain and tinnitus, and the combination of impairment of his nonservice-connected disabilities, to include back and mental health disorders. Therefore, based on the foregoing, the Board finds that, while the Veteran's service-connected right rib disorder and tinnitus resulted in some impairment in occupational functioning, which is represented by his currently assigned ratings, such does not render him unable to secure or follow a substantially gainful occupation. Therefore, the Board finds that the Veteran's service-connected disabilities, either alone or in combination, do not render him unable to secure and follow a substantially gainful occupation. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and a referral for extraschedular consideration for a TDIU is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.