Citation Nr: 21029136 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 12-24 077A DATE: May 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for a stomach condition is remanded. 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 December 1980 to December 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by a Department of Veterans Affairs Regional Office (RO). In July 2016, 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. This case was previously remanded in January 2017, June 2018 and January 2019. In October 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA stomach examination and to further develop the TDIU claim on appeal. With regard to 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). The service connection claim for stomach condition is addressed in the Remand section below. 1. 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: postoperative right hand neuropathy rated 30 percent disabling effective January 2003; MDD and anxiety disorder rated 30 percent disabling effective June 2010; left hand neuropathy rated 20 percent disabling effective April 2005; right elbow burn scar rated 10 percent disabling effective January 2008; left forearm burn scar rated 10 percent disabling effective January 2008; right elbow condition rated noncompensable prior to November 2019, and 10 percent disabling thereafter; donor site scars right thigh rated noncompensable; right elbow residual burn scars rated noncompensable; left forearm residual burn scar rated noncompensable; and, right groin donor site scar rated noncompensable. The Board notes the Veteran has met the schedular rating criteria as of June 2010. The evidence of record includes an April 2013 Social Security Administration (SSA) decision which determined that the Veteran's conditions, including heart problems, arthritis, difficulty sleeping, neck pain, passing out and PTSD, were not severe enough to keep him from working. Specifically, while SSA found that the medical evidence showed that the Veteran was not capable of performing heavy work (i.e. physical labor), he was found able to communicate, act in his own interest, adjust to ordinary emotional stresses, get along with others and do his usual daily activities without assistance. Accordingly, SSA found that the Veteran was capable of performing other non-labor work which did not require heavy lifting and might only require a very short on-the-job training period. His claim was thereby denied. At a July 2016 Board hearing, the Veteran testified that he stopped working as a truck driver two years prior because he was "passing out" and his doctor would not authorize him to return to work. In April 2017, a VA medical record shows that the Veteran reported that he was working part-time in a liquor store. See VA Medical Records Received September 2018. An October 2018 VA medical record additionally shows the Veteran reported working part-time at a local liquor store. See VA Medical Records Received November 2018. A March 2019 VA psychology record shows the Veteran reported that he recently accepted a job working as a janitor at a local school. See VA Medical Records Received December 2019. Thereafter, in November 2019, a VA medical record shows the Veteran reported working part time at a restaurant. See VA Medical Records Received August 2020. In an October 2019 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked as a truck driver in 2016, and that he became too disabled to work that same year. Additionally, in October 2019, the Veteran also submitted VA Form 21-4142, Authorization to Disclose Information to VA, in which he reported working as a cook 7 hours per week since May 2019, and that he made $101.50 per week. The Veteran further stated that his hip, stomach, arm, elbow and shoulder conditions, and that his psychiatric, lumbar spine, neuropathy conditions precluded him from gainful employment. The Veteran filed VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, in August 2020 in which he reported working 7 hours a day, 28 hours per week, as a cook/cleaning person at a restaurant since May 2019. In an accompanying letter signed by his store manager, it was noted the Veteran was a very good and hard worker, but that his arm and leg prevented him from doing a whole lot while at work, that his pain medication slowed him down, and that he had to sit down several times throughout the day due to his leg. Lastly, a January 2021 VA medical record noted the Veteran was currently employed as a cook 20 to 30 hours per week. He reported his strengths as reliable, hard-working and a team player. Pursuant to the October 2020 remand, in December 2020, January 5, 2021, and January 12, 2021, the AOJ requested the Veteran to complete and return VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to be completed by his employer. The Veteran did not respond to the requests for additional information concerning his claim for 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."). In the absence of cooperation from the Veteran in development of his 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 shows that during the period on appeal, the Veteran has simultaneously worked as a cleaner/cook at a restaurant 20 to 30 hours per week, and as a janitor at a school. He has also worked part-time at a liquor store. 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, he has provided conflicting reports. In this regard, in the October 2019 VA Form 21-8940, the Veteran reported that he last worked in 2016 as a truck driver. However, in subsequent filings, he reported working as a cook since May 2019. Thus, at the time of the October 2019 filing, the Veteran misrepresented when he last worked. Additionally, while the Veteran has only reported working as a cook/cleaner at a restaurant on his claim forms, VA medical records also show he accepted a job as a janitor at a school. Therefore, the Board finds that the Veteran has provided conflicting statements as to the status of his current employment, and, thereby, provides his statements little probative value. 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 his current employment has been 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 noted above, in December 2020 and January 2021, the Veteran was afforded opportunities to provide his complete employment history; however, he failed to submit this information and has not otherwise provided any information pertaining to his employment history or his current employment status. 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). REASONS FOR REMAND 1. Stomach Condition As noted above, this matter was recently remanded in October 2020 to obtain a VA stomach examination. The examiner was asked to opine whether the Veteran's diagnosed stomach condition was aggravated by a service-connected disability, to include as due to medications used to treat those disabilities. The requested VA examination was obtained in December 2020. The examiner noted a diagnosis for delayed gastric emptying. The examiner opined that it was "less likely than not (less than 50 percent probability)" that the Veteran's diagnosed stomach condition was the result of a service-connected disability. In support of this opinion, the examiner stated that it was "more likely than not" that the delayed gastric emptying was etiologically related to service. The examiner stated that this finding was based on records showing delayed gastric emptying with symptoms persistent since service and the fact that the condition typically continued to worsen over time. The examiner did not identify any such records. The Board finds the December 2020 VA examination report inadequate. Specifically, the Board notes that the service treatment records (STRs) are completely silent for any complaints, treatment, or diagnosis of a stomach condition, including delayed gastric emptying. Instead, following his in-service electrical burn injury, a January 1982 STR noted a normal abdomen, and an August 1983 dental medical history shows the Veteran reported being treated for burns, but denied any stomach or intestinal trouble. Moreover, the first record noting delayed emptying of the stomach is an August 1995 VA medical record. See VA Medical Records Received September 1995. Accordingly, the examiner's rationale that symptoms related to delayed gastric emptying had been present since service are directly contradicted by the evidence of record. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). Accordingly, a Remand is warranted to obtain another VA examination. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed stomach condition (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed stomach condition, to include delayed gastric emptying, diverticulosis, GERD, hiatal hernia, and esophageal motility disorder, that is etiologically related to his period of service? The examiner is asked to consider the December 2020 VA examiner's determination that the Veteran's delayed gastric emptying was "more likely than not" etiologically related to service. The Board notes that the December 2020 VA examiner failed to identify any service-related records in support of this finding. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed stomach condition, to include delayed gastric emptying, diverticulosis, GERD, hiatal hernia, and esophageal motility disorder, that was caused by a service-connected disability, to include as due to medications used to treat those disabilities? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed stomach condition, to include delayed gastric emptying, diverticulosis, GERD, hiatal hernia, and esophageal motility disorder, that is aggravated by a service-connected disability, to include as due to medications used to treat those disabilities? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 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.