Citation Nr: 21030917 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-33 110 DATE: May 20, 2021 ORDER Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran is not unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, because he is currently working. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1973 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) from the May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a February 2017 travel board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In December 2020 the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) The Veteran is service-connected for degenerative joint disease of the right hip, status post replacement surgery, currently rated as 70 percent disabling; degenerative disc disease of the lumbosacral spine, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; bilateral hearing loss, rated as noncompensably disabling; and a scar of the right hip, also rated as noncompensably disabling. The Veteran has had a combined rating of 60 percent disabling from January 3, 2012; 70 percent from October 18, 2014; and 80 percent disabled from February 8, 2017. At the February 2017 Board hearing, the Veteran testified of sometimes being precluded from performing his employment duties as an attorney due to hearing loss and hip problems. He stated that he sometimes could not hear judges. He also recounted having undergone multiple hip replacement surgeries. He reported being in discomfort 24 hours a day. The July 2019 VA examination for the Veteran's hip reflects that the Veteran was employed full-time. The report of an examination conducted by VA at that time indicates that the Vetean remains capable of sedentary work, which involves exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. It was further stated that sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The report of a VA audiology examination noted that the veteran would require use of bilateral amplification, and may have difficulty hearing and understanding sounds and spoken word, more so in presence of background noise, out a distance, or in reverberent environments. It was further noted that he will need to utilize maximum auditory and visual cues to hear and understand conversation to maximize his hearing and understanding potential. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. "Substantially gainful employment" contains economic and noneconomic components. The economic component means "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," and the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Board acknowledges that the Veteran was sent a letter in June 2018 requesting the Veteran to complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. However, he has not submitted an application, to determine his employment history and employment status. VA again provided the Veteran with the above application and included an explanation of the factors pertinent to establishing entitlement to a TDIU, but the Veteran again failed to respond. Based on the available records, it appears that the Veteran is still working full-time, and thus is not eligible for a TDIU. The Veteran is advised that VA's duty to assist a claimant is not a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board concludes that a TDIU is not warranted based on the Veteran's full-time employment status. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a TDIU. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.