Citation Nr: 21028134 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-28 690 DATE: May 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities, either individually or through their combined effect thereof, do not preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW Throughout the period on appeal, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1972 to September 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs Regional Office (RO). In June 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In August 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to further develop the claim for entitlement to a TDIU. The Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). TDIU 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 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 v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). Marginal employment is found whenever the veteran's earned annual 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. 38 C.F.R. § 4.16. However, 38 C.F.R. § 4.16 further provides an exception to the income limitation regarding employment in a protected environment, such as family business or sheltered workplace, on a facts-found basis. Id. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). During the pendency of the appeal, the Veteran has been service connected for the following disabilities: right knee disability rated 10 percent disabling prior to December 2019, and 40 percent disabling thereafter; bicipital tendonitis rated 10 percent disabling prior to December 2019, and 20 percent disabling thereafter; cholecystectomy with scarring and irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD) rated 10 percent disabling; tinnitus rated 10 percent disabling effective January 2014; and hearing loss and right knee limitation of flexion each rated noncompensable. The Board notes the Veteran has not met the schedular rating criteria for entitlement to TDIU. With regard to an extraschedular rating, if a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), such as the case here, rating boards are to refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for TDIU, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age which would have justified a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Although the Board is required to obtain the Compensation Service Director's decision before awarding extraschedular TDIU benefits in the first instance, see Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the evidence of record shows that throughout the period on appeal, the Veteran has been employed. Therefore, referral to the Director of Compensation and Pension Service for extraschedular consideration of TDIU in the first instance is not warranted as the Veteran has not been shown to be unable to secure or follow a substantially gainful occupation. Specifically, the evidence of record shows that during a June 2019 Board videoconference hearing, the representative asked the Veteran whether there were "other issues pertaining to [his] hearing loss? You mentioned depression earlier is there anything or an inability (indiscernible) if you wanted to get a job somewhere that, for example, doing what you did in the Navy, would you be able to do that kind of work again?" The Veteran responded that it depended, but that because of his hearing he was probably limited to where he could apply for work. He further stated that he could not go back to being an aircraft mechanic again, and, therefore, that it "[w]ould be hard for me to look for another job and this is my experience as an aircraft mechanic." Based on the testimony provided during the Board hearing, a claim for entitlement to a TDIU was deemed raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Following the Board hearing, VA medical records dated July and September 2019, and February 2020, show the Veteran reported that he currently worked as an aircraft mechanic. See VA Medical Records Received January 2020 and March 2021. As noted above, this matter was remanded in August 2020 to further develop this claim. Thereafter, in August 2020, VA sent the Veteran a letter requesting he submit VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to be completed by each of the employers identified on a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran submitted a VA Form 21-8940 in September 2020, which noted that he last worked full time in April 2018. However, he also reported earning over $23,000.00 in 2019 as an aircraft repair mechanic inspector. He did not submit a VA Form 21-4192 as requested. With regard to the submitted VA Form 21-8940, in a September 2020 letter, the Veteran was notified that the form was incomplete as he did not indicate what service-connected disabilities prevented him from working. In addition, the Veteran was requested to submit complete contact information for his previous employer. In response, another VA Form 21-8940 was submitted in October 2020. That form listed "65 percent" as the service-connected disability that prevented him from securing or following any substantial gainful occupation. The Veteran again reported that he last worked full time in April 2018, and that he earned over $23,000.00 in 2019 as an aircraft repair mechanic inspector. However, he additionally noted that he had not worked in that profession since March 2018. Thereafter, in October, November and December 2020, VA sent the employer identified on the submitted VA Form 21-8940 letters requesting they complete and return VA Form 21-4192. Additionally, in a December 2020 letter, VA requested more information from the Veteran with regard to the employer listed on his VA Form 21-8940. Specifically, the name of the Federal Agency where he had been employed was requested. The requested information was provided as noted by a January 2021 VA Form 27-0820, Report of General Information Based on this information, and as directed by a December 2020 email from the National Archives & Records Center, Annex, in January 2021, VA sent the National Personnel Records Center (NPRC) a letter requesting employment information about the Veteran. The Veteran was simultaneously requested to ask his employer to complete and return VA Form 21-4192, Request for Employment Information. A follow-up letter was sent to NPRC in February 2021. Lastly, the Veteran was notified in a March 2021 letter that all efforts to obtain information from his employer had been exhausted, and that those records were thereby deemed unavailable. It was again requested that he submit copies of his employment records or a signed VA Form 21-4192. To date, the Veteran has not responded to this letter. 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."). In the absence of cooperation from the Veteran in development of this claim, the Board can only piece together his employment history through various statements made during the period on appeal. In this regard, the evidence of record, most recently, a February 2020 VA medical record, shows the Veteran currently works as an aircraft mechanic. Notably, the question of employability is ultimately a legal one, not a medical one. While the Board acknowledges the Veteran's lay statements that his service-connected disabilities prevent him from securing or following any substantially gainful occupation and that he last worked full time in either March or April 2018, VA medical records dated after this time period show that he remained employed. He further provided seemingly incompatible information on his submitted VA Forms 21-8940. Specifically, while he reported last working in 2018, he also reported earning income in 2019. Therefore, the Board finds that the Veteran has provided conflicting statements as to the status of his current employment. The Board further finds the Veteran's statements provided during VA treatment are more reliable, and therefore, more probative, than statements made in connection with obtaining VA benefits. In this regard, the Board notes that statements made to clinicians for the purpose of treatment are considered reliable because one seeking medical treatment is aware of the necessity for being truthful to secure proper care. See Rucker v. Brown, 10 Vet. App. 67 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Based on the foregoing, as the Veteran has been shown to be currently employed, the Board finds that his service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. The evidence further does not show that the Veteran's current employment was either marginal or occurred in a protected environment. Therefore, TDIU is precluded as the Veteran has not been shown to be unemployed. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (proof of unemployment is necessary to raise a TDIU claim). As such, referral of this claim to the Director, Compensation Service, would serve no useful purpose, and, therefore, referral is not warranted. As noted above, the Veteran was afforded the opportunity to provide employment information; however, he failed to submit this information and has not otherwise provided the requested information. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street). Accordingly, based on the available evidence of record, the Board finds that the preponderance of the evidence shows that entitlement to a TDIU is not warranted. The claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.