Citation Nr: 21030187 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-28 296 DATE: May 18, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence does not establish that the Veteran was unable to maintain substantially gainful employment throughout the entirety of the period on appeal. CONCLUSION OF LAW The criteria for total disability based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155. 5103; 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from June 1973 to December 1973 and in the United States Army from May 1974 to May 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2016, when the Board found that TDIU was raised by the evidence of record and remanded the issue for further development by the Agency of Original Jurisdiction (AOJ). The AOJ issued a rating decision denying TDIU in April 2017. This matter returned to the Board in February 2021, when it was again remanded in order for the AOJ to fully assist the Veteran in his claim and has since returned to the Board for further appellate review. 1. Entitlement to total disability based on individual unemployability (TDIU) The Veteran seeks a TDIU. He contends that he is no longer able to work due to his service-connected disabilities. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: (1) status post tenosynovectomy of the m. tibialis anterior, left (rated 20 percent from January 3, 2005); (2) limitation of left hip flexor (rated 20 percent from March 13, 2007; (3) tri-compartment osteoarthritis with chronic synovial effusion, left knee (rated at 20 percent from March 12, 2015); (4) myotendinous lumbar spine syndrome (rated at 10 percent from January 3, 2005); limitation of left hip extension (rated at 10 percent from March 13, 2007); (5) impairment of the left thigh (rated at 10 percent from March 13, 2007); (6) osteoarthritis of the right knee (rated at 10 percent from March 13, 2007); (7) gastritis (rated at 10 percent from August 17, 2007); (8) posttraumatic left knee degenerative joint disease with internal derangement (rated at 30 percent from April 28, 2000, and at 10 percent from March 12, 2015); (9) left leg length discrepancy (rated at 0 percent from March 12, 2015); and (10) surgical scars over the medial and superior left knee joint (rated at 10 percent from November 23, 2003 and at 0 percent from March 12, 2015). All of the Veteran's service-connected disabilities besides his gastritis involve a single body system, the orthopedic system, so they are considered a single disability. The Veteran's combined disability rating meets the criteria for award of a schedular TDIU because there is one disability, the combined disability, rated at 70 percent or more. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Therefore, the Veteran has met the schedular criteria for a TDIU rating during the period on appeal. In its February 2021 remand, the Board instructed the AOJ to send the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on unemployability, as well as a VA Form 21-4192, Request for Employment information in Connection with Claim for Disability Benefits. The AOJ sent the Veteran these forms, along with a 38 U.S.C. § 5103 Notice Letter, on February 12, 2021. Therefore, the Board finds the AOJ substantially complied with its remand instructions. The Veteran previously submitted an incomplete Form 21-8940 in April 2017, after which the AOJ requested the Veteran provide a completed form via correspondence in February 2017. In May 2017, the Veteran submitted his German Pension Notification letter confirming old-age pension for severely disabled individuals had been determined and began on March 1, 2017. However, this letter did not provide any information on which of the Veteran's disabilities caused him to be unable to obtain or follow substantially gainful employment. Additionally, a completed VA Form 21-8940 has not been submitted. Although failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to the Veteran's complete employment history, educational history and training, and income information necessary to address a claim for TDIU. "The duty to assist is not 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." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board will consider the Veteran's claim without the valuable information that would have otherwise been provided by these forms. The possibility was raised that the Veteran was unemployable due to his service-connected disabilities. However, a review of the record does not indicate the Veteran was unable to obtain or follow substantially gainful employment during the appeal period. While the Veteran submitted a VA Form 21-8940 in April 2017, this form was incomplete, and did not provide any information on the Veteran's employment prior to March 1, 2017, when he states he was placed on "disable retirement." The Veteran submitted a Pension Notification letter showing he began receiving an "old age pension for severely disabled individuals," but while this letter indicates the Veteran is on disability, it does not state the Veteran is unemployable. Additionally, the receipt of a disability pension is not dispositive of the Veteran being unable to sustain or follow substantially gainful employment. Furthermore, the criteria that apply to non-VA disability claims are not the same criteria for consideration by VA, and therefore the Board cannot rely on this determination of German pension insurance as evidence the Veteran is unable to obtain or follow substantially gainful employment. The Veteran's VA examinations throughout the appeal period also indicate he was employed during the appeal period. During the August 2009 examination, the Veteran indicated he was then working as a driver for the city of Mannheim. In his January 2013 examination, the Veteran stated he worked as a recycling clerk. The March 2015 knee examination indicated the Veteran's leg conditions impacted his ability to work but there is no mention of what the Veteran was doing for employment. Neither the March 2015 hip or stomach and duodenal conditions examinations indicated what the Veteran's employment was at that time. The March 2017 knee examination noted the Veteran's condition "markedly inhibits his ability to ambulate" and that he could not run or go up stairs. However, there was no indication on what the Veteran's employment was at the time of this examination and whether or not these limitations affected his ability to work. As for the Veteran's educational and training history, there is little information in the record addressing these criteria. The record indicates the Veteran began to use his educational benefits, but there is no indication on if he completed a degree or training program. Additionally, while he applied for the VA vocational rehabilitation program in the mid-1980s, the Veteran was ineligible because he resided in Germany. However, without additional information from the Veteran, the Board cannot determine whether the Veteran has transferable skills that would enable him to obtain or follow substantially gainful employment. The preponderance of the evidence does not show the Veteran was unable to obtain or follow substantially gainful employment during the appeal period. At no point during the appeal period, whether in written correspondence or in an examination, did the Veteran state he was unemployed due to his disability or that he was unable to obtain or follow gainful employment. Additionally, without any information on the Veteran's prior or current employment, the Board cannot determine whether the Veteran's employment during the appeal period would be considered marginal in nature. And, while he provided a copy of a German Pension Notification letter stating he would begin receiving pension insurance in March 2017, this letter does not indicate the Veteran is receiving these benefits due to being unemployable because of his service-connected disabilities. Although the Veteran has referred to this pension as his "disable retirement," this statement alone is not enough to support a finding that the Veteran was unable to obtain or follow substantially gainful employment during this period. (Continued on the next page) Although this claim for TDIU was originally raised by the record, the Veteran has failed to provide the information requested to permit adequate adjudication of the TDIU claim. Therefore, the Board cannot conclude the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities. Thus, the Board finds that the preponderance of the evidence is against establishing that the Veteran was unable to maintain substantially gainful employment due solely to his service-connected disabilities at any time during the period on appeal. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED