Citation Nr: 21029517 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 12-01 021 DATE: May 13, 2021 ORDER A total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran does not meet the schedular percentage threshold for a TDIU. 2. The competent and probative evidence weighs against a finding that he is unemployable due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1982 to May 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long procedural history and has been before the Board previously. In July 2016, the Veteran testified before the undersigned during a videoconference. In December 2016, the Board remanded the case for further development. In December 2018, the Board noted that the previous remand instructed the Agency of Original Jurisdiction (AOJ) to refer the matter of an extraschedular TDIU to the Director of Compensation Service (Director) if the schedular threshold were not met. In December 2020 the Board again remanded the claim for referral to the Director for consideration of entitlement to a TDIU on an extraschedular basis since the AOJ did not complete this development. After a February 2021 SSOC considered a January 2021 memorandum from the Director, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the claim was referred to the Director for consideration of entitlement to a TDIU on an extraschedular basis. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). A TDIU on an extraschedular basis. The Veteran seeks entitlement to a TDIU. Specifically, at the July 2016 hearing, the Veteran testified that he stopped working and that reduced his stress and blood pressure. See 7/28/2016 Hearing Testimony, at page 6. After reviewing the relevant lay and medical evidence, the Board finds that the competent and probative evidence is against a finding that the Veteran's service-connected disabilities preclude him from securing or following gainful employment. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran, through his representative, argued that the issue of a TDIU should be remanded for development because the record is incomplete. However, pursuant to the Board's December 2016 remand, the AOJ, in May 2017 and then again in December 2020, sent letters to the Veteran, asking him to submit the relevant forms, to include a VA Form 21-8940, and evidence to substantiate the TDIU matter. See 5/23/2017 Custom 5103 Notice; see also 12/21/2020 Subsequent Development Letter. There is, however, no indication in the record that the Veteran has responded to these requests, to include submitting a TDIU application form, information regarding his employment, or any other relevant evidence. VA's duty to assist is not a one-way street and that, if a veteran wishes help, he or she cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the AOJ has made reasonable efforts to obtain the Veteran's outstanding employment information requested by the Board. These efforts, however, have been unsuccessful due to the Veteran's lack of cooperation. Thus, relevant evidence from the Veteran regarding the economic and non-economic TDIU components, to include the evidence contained on a VA Form 21-8940, thus are not available to the Board for this adjudication. Additionally, the Veteran's representative argued in an April 2021 brief that the Veteran should be scheduled for a new in-person VA examination since the last time the Veteran had an in-person examination was in April 2017. The Veteran's representative added that a five-year period had passed since his last in-person examination and that it "is quite possible, perhaps even probable," that the Veteran's service-connected disability worsened dramatically. See 4/17/2021 Appellate Brief, at page 2. However, the Board finds that the argument that the Veteran's disabilities "quite possible, perhaps even probabl[y]," worsened is mere speculative. In this regard, the brief did not cite any evidence, such as recent treatment records, to indicate a possible worsening of the left ankle or any other service-connected disability. Furthermore, in the April 2021 brief, the Veteran's representative listed links indicating an examiner that saw the Veteran received many dissatisfied comments from other Veterans. Links are not probative evidence. Evidence is probative when it "tends to prove or disprove a point in issue." BLACK'S LAW DICTIONARY 579 (7th ed.1999). In this regard, the Board does not know if they are complete and links often lead to a "dead" website. Even if they do state what the representative states that they do, the discussion by other patients of this examiner on unrelated matters at other times does not call into question the report from this examination for this Veteran. Also, to the extent the representative has based an argument on online reviews, it is unclear what in particular was incorrect, erroneous, etc. Without supporting evidence or a more specific contention about what was wrong or missing or inadequate about the evidence provided by this examiner, the Board will consider this relevant evidence and weigh it, as appropriate based on its merits. Regarding a TDIU, the Veteran's service-connected disabilities include a left ankle disability, status post left ankle surgery (10 percent disabling effective June 1, 2002); residual scar, status post left ankle surgery (non-compensable rating effective June 1, 2002, and 10 percent disabling effective May 5, 2009); residuals of left scaphoid fracture (non-compensable rating effective May 17, 2004); and hypertension (non-compensable rating effective June 2, 2008). The Veteran's combined disability rating is 20 percent effective May 5, 2009; thus, the Veteran does not meet the schedular threshold for a TDIU per 38 C.F.R. § 4.16(a). Therefore, the Board will address the Veteran's entitlement to a TDIU on an extraschedular basis. The Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). As mentioned above, as the Veteran did not meet the schedular percentage threshold for the entire period that the Veteran claims a TDIU. As such, the Board referred the TDIU matter to the Director of Compensation Service for extraschedular consideration in its December 2016, December 2018, and December 2020 remands to ensure full due process. A January 2021 Administrative Decision recommended against entitlement to an extraschedular TDIU. The January 2021 advisory opinion determined that entitlement to an extraschedular TDIU was not warranted. The Director concluded that the medical evidence did not establish that the Veteran's service-connected disabilities rendered him unable to obtain employment. See 1/27/2021 VA Memo. However, the Board notes that the Director's initial determination as to an extraschedular evaluation is not evidence. Wages v. McDonald, 26 Vet. App. 233, 239 (2015). Consequently, the Board must determine whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage") on a de novo basis and without consideration of the Director's 2021 document. Moore v. Derwinski, 1 Vet. App. 356 (1991). Notwithstanding the above, the evidence of record indicates that the Veteran retired in 2015 and that he worked for The American Legion in data processing and as a benefits specialist. See 8/25/2016 Medical Treatment Record Non-Government Facility, at page 34; see also 6/20/2018 C&P Examination, at page 9. From this evidence, which is based on information reported by the Veteran, it is reasonable to deduce that the Veteran was employed until the summer of 2015. Id. There is no argument to the contrary or indication that the Veteran's employment during that period was marginal and the Veteran has not submitted evidence tending to show that it was. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."). As the competent and credible evidence tends to show that the Veteran was fully and gainfully employed during the period until the summer of 2015, entitlement to a TDIU prior to this period is not warranted. The evidence of record establishes that the Veteran has some college education; however, it's not clear if the Veteran completed an undergraduate degree. See 6/20/2018 C&P Examination, at page 8. During a June 2018 VA TDIU addendum examination, the examiner noted that the Veteran's hypertension had always been controlled with daily medication. Regarding the Veteran's left ankle disability, the examiner noted that the record showed the Veteran was able to walk miles and was only limited by his wife's ability to walk. Finally, the examiner reported that the Veteran's service-connected disabilities combined or individually did not caused the Veteran any functional limitations. See 6/20/2018 C&P Examination. In a January 2019 VA TDIU addendum examination, the examiner corrected an error in the June 2018 report by stating that the Veteran did not have a service-connected left shoulder disability. The examiner restated the prior observations from the June 2018 report and added that the Veteran's service-connected left wrist scaphoid disability was remote, had thoroughly resolved, and caused no functional limitations. See 1/31/2019 C&P Examination. Additionally, as mentioned above, the Veteran testified that he stopped working and that reduced his stress and blood pressure. See 7/28/2016 Hearing Testimony, at page 6. However, in August 2014 the Veteran reported that he had been under a lot of stress for the past couple of years due to being accused of wrongful termination lawsuit filed by a disgruntled former employee. See 6/20/2018 C&P Examination, at page 3. Additionally, the Veteran's hypertension disability has remained at a non-compensable disability rating throughout the appeal period. Other than daily medication, a 2018 examiner indicated that his hypertension did not have an impact on his functional abilities. Further, the Veteran testified that he walks 2, 3, or 4 miles daily depending on how his wife feels. Additionally, treatment records showed that he ambulated with a steady gait. See 7/28/2016 Hearing Testimony, at page 8; see also 4/7/2017 CAPRI, at page 14. Based on the evidence above, the Board finds that the Veteran's service-connected left ankle, left scaphoid, and hypertension disabilities are not of such nature and severity as to prevent him from securing or following substantially gainful employment. In the Board's review of the facts, to include the Veteran's education, work history, and impairment from his service-connected disabilities, he has a complex and multifaceted disability picture. However, the evidence demonstrates that the Veteran's service-connected disabilities do not render him unable to secure or follow substantially gainful employment, to include with consideration of relevant non-economic components, such as his education and occupational history. Moreover, the record shows that the Veteran worked in a sedentary employment field job until his retirement in 2015. Furthermore, as mentioned above, the Veteran testified that he walks 4 miles daily, only limited by his wife's ability to walk, and treatment records showed he ambulated with a steady gait. Additionally, the addendum to the June 2018 report stated that the Veteran's service-connected left wrist scaphoid disability was remote, had thoroughly resolved, and caused no functional limitations. The Board finds such evidence to be probative and it tends to weigh against a TDIU. (CONTINUED ON THE NEXT PAGE) In sum, the Board finds the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. Therefore, entitlement to a TDIU on an extraschedular basis per 38 C.F.R. § 4.16(b) is not warranted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fuentes, 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.