Citation Nr: 21028826 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 08-12 183 DATE: May 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from September 21, 2018, is granted. FINDINGS OF FACT 1. The record reflects that the Veteran last worked full time on September 20, 2018. 2. The Veteran's service-connected major depressive disorder with sleep disorder and anxiety attacks have prevented the Veteran from securing or following a substantially gainful occupation, consistent with her vocational and educational background since September 20, 2018. CONCLUSION OF LAW The criteria have been met for entitlement to a TDIU from September 20, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Air Force during the Gulf War from March 1998 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded entitlement to a TDIU in September 2017 and August 2020. With regard to a hearing, in October 2010, the Veteran failed to appear for a personal hearing scheduled before a Veteran's Law Judge (VLJ) for which she had been notified in September 2010. Neither she, nor her representative, requested any rescheduled hearing or offered any good cause for failing to attend. Therefore, the request for a hearing was deemed withdrawn. 38 C.F.R. § 20.704(d). The Veteran's employment history information is required because entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his/her ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A 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. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran has suggested that she is not able to work. The Veteran, by and through her representative, requested that the Board carefully consider the extent to which the Veteran's service connected disability prevents her from working. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one 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, and the disabled person is unable to secure or follow a substantially gainful occupation as a result. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation and Pension Service, for consideration of extra-schedular TDIU. 38 C.F.R. § 4.16 (b). The Veteran is service connected for a single major depressive disorder with sleep disorder and anxiety attacks rated at 50 percent prior to April 6, 2010, and 70 percent from April 6, 2010, with the exception of two periods in which a temporary total evaluation was assigned (December 22, 2017, to March 1, 2018, and January 3, 2019, to April 1, 2019) and accordingly, the Veteran's service connected disability rating meets the scheduler percentage requirements under 38 C.F.R. § 4.16(a) from April 6, 2010. The question before the Board is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of her service connected major depressive disorder with sleep disorder and anxiety attacks. The evidence of record reflects that the Veteran was employed as a telephone operator at the Perry Point VA Medical Center with additional administrative duties in a full time capacity for more than two years: from June 26, 2016 to September 20, 2018. The information provided by the employer seemed to indicate that the Veteran was performing the job successfully and voluntarily resigned. The Board notes that the Veteran's employment history prior to June 2016 is somewhat unclear. The Veteran has been provided with opportunities to present evidence regarding her employment history in connection with her pending TDIU claim and she has not done so. The RO provided the Veteran with an explanatory letter and VA form 8940, Veterans Application for Increased Compensation Based on Unemployability, in order to assist with claims development in 2017 and 2020. The Veteran did not respond. Records in the claims file reflect that that the Veteran requested Vocational Rehabilitation, and desired training or assistance with obtaining and maintaining suitable employment conducive to the limitations caused by the Veteran's disabilities. However, the Veteran did not attend the appointment and did not cancel or attempt to reschedule it. The failure to return a fully completed form detailing her employment history could negatively affect a Veteran's claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), holding that "the duty to assist is not always a one-way street. If a Veteran wishes help, he/she cannot passively wait for it in those circumstances where he/she may or should have information that is essential in obtaining the putative evidence." The Board is aware that the evidentiary record contains conflicting evidence. There are indications that the Veteran may be capable of performing employment. She performed duties in a full time capacity for more than two years: from June 26, 2016 to September 20, 2018 at Perry Point. In the alternative, evidence of record supports the award of a TDIU. The Veteran and her representative point the Board to a VA examiner report from July 2019 where the examiner opined: "Given Veteran's difficulties in interacting with authority figures, her suspiciousness of people that compromised her ability to deal with interpersonal stressors at work, and her difficulty adapting to stressful situations, it is my opinion that it is likely that this would compromise her ability to work successfully in occupational and employment activities." Medical records associated with the file in September 2020 from the Baltimore VA Clinic extensively describe aspects of the Veteran's symptoms, treatment, and care. The following evidence of record also supports the award of a TDIU based on the Veteran's service connected disability, as it bears on the ultimate question of whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he/she can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran's resume associated with the file September 28, 2020 indicates gaps in work history between June 2010 and February 2012 and again between March 2013 and June 2016. These represent periods when the Veteran was enrolled in VA Vocational Rehabilitation, according to her representative. On September 24, 2020 the Veteran's Rehabilitation Needs Inventory (RNI) was associated with the file. The Veteran described her reason for leaving the position as a telephone operator in September 2018 as "disruption of mental health services and increased severity in mental health symptoms." Further, the Veteran indicated that during periods of unemployment 3 months or more, she was enrolled at in-patient hospital stays, receiving mental health counseling, and staying at home. In support of the award of a TDIU, the Board points to the symptoms referenced in the July 2019 VA examination. The report reflects that the Veteran's symptoms included depressed mood, panic attacks more than once a week, mild memory loss, disturbances of motivation and mood, obsessional rituals which interfere with routine activities, impaired concentration, and OCD with poor insight that impairs social and occupational functioning. The Board cannot conclude on its own that the Veteran's mental health disorders contributed to her inability to cooperate in this matter. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, a remand to seek an additional medical opinion is not appropriate because the Court has held VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Despite the Veteran's inability to cooperate in this matter, the Board can make a decision regarding entitlement to TDIU based on the available evidence of record. In September 2020 the Veteran reflected on the VA Form 28-1902w that she was seeking assistance in locating suitable employment. It appears that the Veteran has not engaged in any type of substantially gainful employment since approximately September 2018. In the present case, the Board believes that applying the benefit-of-the-doubt doctrine to grant the Veteran's TDIU claim under 38 U.S.C. § 5107 (b) and 38 C.F.R. § 3.102, is the fairest course of action. This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our Veterans,' has 'taken upon itself the risk of error' in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). The Board finds that the Veteran is unable to secure and follow substantially gainful employment and accordingly, the TDIU appeal effective September 21, 2018 is granted. 38 C.F.R. § 4.3. An effective date prior to September 21, 2018, is denied as the record shows that the Veteran was employed full time at that time. To the extent, that the record contains gaps in the Veteran's employment history prior to September 21, 2018, the Veteran has not provided a detailed employment history as requested by the AOJ and the available evidence does not show that she was unemployable due to her service connection psychiatric disorder prior to that date. Accordingly, referral to the Director, Compensation and Pension Service for consideration of extra-schedular TDIU prior to April 6, 2010, is not warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.M. Schneider 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.