Citation Nr: 21028024 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-11 188 DATE: May 10, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT The evidence does not show that the Veteran's service-connected disabilities preclude him from securing or following a substantial gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1972 to January 1993. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified before the undersigned at a Board hearing. The transcript of the hearing is of record. In a January 2021 decision, the Board remanded the appeal for further development. TDIU In the January 2021 decision, the Board noted that a TDIU claim had been raised by the record as part and parcel of claims for increased ratings for bilateral shoulder disability, which were decided in the decision. In this regard, the Veteran testified at the April 2019 hearing that he stopped working as a bus driver in May 2017 due to his service-connected bilateral shoulder disability making it impossible for him to continue to safely operate a bus. He also testified that he then had surgery on the left shoulder the following year and that he currently needed surgery on his right shoulder. Additionally, he indicated that he intended to file a formal claim for TDIU. A total disability rating for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU will be granted when the evidence shows that the veteran, due to his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's service-connected disabilities include right shoulder disability, rated 30 percent disabling; psychiatric disability, rated 30 percent disabling; left shoulder disability, rated 20 percent disabling; status post fracture of the left 4th metacarpal, rated noncompensable; and left shoulder surgical scar, rated noncompensable. The combined rating for the service-connected disabilities is 60 percent. Consequently, the Veteran does not meet the schedular standards for an award of TDIU. 38 C.F.R. § 4.16(a). The Board must also consider whether a referral to the Director of the Compensation Service should be made for extraschedular consideration of TDIU. 38 C.F.R. § 4.16(b). Under this authority, it is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). In the January 2021 remand, the Board instructed the RO to provide the Veteran with VA Form 21-8940, the formal claim form for TDIU, and appropriate notice about the evidence needed to establish entitlement to TDIU. In a February 2, 2021 letter, the RO provided the Veteran with VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Information in Claim for Disability Benefit, and instructed him on the evidence needed to establish entitlement to TDIU. It also asked him to return VA Form 21-8940 and if possible to return a VA Form 21-4192 completed by each of the employers identified on the Veteran's VA Form 21-8940. To date the Veteran has not returned any completed forms to VA. As alluded to above, the Veteran's hearing testimony indicates that he was working as a bus driver until approximately May 2017 when he felt he could no longer safely perform this job due to his service-connected bilateral shoulder disability and ceased this employment. VA treatment records show that at a March 2017 psychiatric visit, the Veteran was noted to be employed and at a subsequent August 2017 mental health visit, he was noted not to be employed. At that visit he reported that he did not have a history of disciplinary problems at work or of having been terminated from a job. He also reported that he did not need employment counseling. VA treatment records from December 2018 through October 2020 show that the Veteran was noted to be employed at a funeral home. At a December 2018 mental health visit, he indicated that he felt fulfilled at work. He reported that he was helping prepare deceased individuals for funeral ceremonies. He noted that his work was peaceful, and he felt that he was able to provide comfort and solace to the families of the deceased. The above summarized evidence is not sufficient to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. Notably, the evidence reasonably indicates that the Veteran left his job as a bus driver because of his concern that he could not continue to safely perform this work due to his service-connected bilateral shoulder disabilities. However, the evidence clearly shows he was able to subsequently find the new position working at the funeral home. Thus, while he may have been precluded from working as a bus driver by his service-connected disabilities, he was able to subsequently secure the funeral home position. Also, the evidence indicates that he has continued to be able to follow this occupation, as the VA treatment records affirmatively indicate that he continued to perform it from December 2018 through October 2020 and there is nothing in the record to suggest that this employment has not continued up until the present. As noted above, the Veteran was given the opportunity to submit a formal claim for TDIU along with his associated employment history and to otherwise submit information that might support the claim for TDIU. However, to date he has not submitted such information. The Board also notes that there is nothing in the evidence of record to suggest that the Veteran's employment at the funeral home is not to a level of substantial gainful employment or that it is sheltered employment. In sum, the weight of the evidence indicates that the Veteran is able to secure and follow a substantial gainful occupation despite his service-connected disabilities. Accordingly, the preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. §§ 4.16 (a), (b); Ray, 31 Vet. App. 58, 66 (2019); Alemany, 9 Vet. App. 518 (1996). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.