Citation Nr: 21031179 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 06-37 701 DATE: May 20, 2021 ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT During the period on appeal, the evidence reflects the Veteran has been employed in a substantially gainful occupation and has not been employed in a protected or sheltered work environment. CONCLUSION OF LAW From September 15, 2004, the criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1985 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this issue in November 2009, October 2012, September 2017, December 2019 and June 2020 for further development. The Board acknowledged in March 26, 2021 correspondence that the Veteran had not previously received a copy of the Board's June 2020 remand. At that time the Veteran was afforded a copy of the remand and informed that the timeliness of any appeal filed would be based on the date of the March 2021 correspondence. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's June 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Board will proceed to the merits of the issue on appeal. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. § 4.16. Normally, consideration is given to such an award only if the Veteran has a single service-connected disability ratable at 60 percent or more, or if he has two or more such disabilities with a combined rating of 70 percent or more, with at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16 (a). However, failure to satisfy these percentage standards is not an absolute bar to an award of 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 (b). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the case shall be submitted for extra-schedular consideration. For the above purpose of determining if the schedular threshold is met, one disability includes: (1) disabilities of one or both upper extremities, or of 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). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Id. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a 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. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a total disability rating based on individual unemployability (TDIU). Schedular TDIU The Veteran contends that he is entitled to TDIU because his service-connected disabilities, particularly his back and knee disabilities, preclude him from obtaining and maintaining substantially gainful employment. The period on appeal for TDIU is from September 15, 2004, which is the date the Veteran filed his claim for an increased rating. A total disability rating for individual unemployability may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). In this case, the Veteran does not meet the schedular threshold requirements for a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2019). From September 15, 2004 the Veteran has been service connected for degenerative joint disease (DJD) of the cervical spine evaluated as 20 percent disabling; mechanical low back pain with traumatic arthritis in thoracic spine evaluated as 20 percent disabling, retropatellar pain syndrome, left knee, status post medial meniscus repair evaluated as 10 percent disabling, allergic rhinitis evaluated as 10 percent disabling, right lower extremity radiculopathy associated with mechanical low back pain with traumatic arthritis in thoracic spine evaluated as 10 percent disabling, status post, fracture right tibia and fibula evaluated as non-compensable, onychomycosis evaluated as non-compensable and saphenous nerve neuropathy, left lower extremity evaluates as non-compensable. The Veteran's total combined evaluation is 60 percent. As the Veteran does not have a combined evaluation of at least 70 percent with at least one disability evaluated at 40 percent or higher, or a single service-connected disability that has been rated 60 percent or higher during the period at issue, under the 38 C.F.R. § 4.16(a) criteria outlined above, the Veteran does not meet the schedular criteria for a schedular TDIU rating. Consequently, a TDIU rating on a schedular basis, under 38 C.F.R. § 4.16(a), is not warranted for the applicable period. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Extraschedular TDIU If the above percentage thresholds are not met, the appellant's claim may still be referred to the Director, Compensation Service for consideration of an extraschedular rating, when the evidence of record shows that Veteran was "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). The Board first notes that the Veteran has not completed a VA Form 21-8940. The record reflects that the RO made a number of requests for the Veteran to complete and return this form including in February 2013, December 2014, April 2015, April 2019, June 2019, December 2019 and June 2020. The Veteran has not completed the form nor presented any additional evidence in regard to his employment history. While 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 employment history, educational history and training, and income information necessary to address a claim for TDIU. "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." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Turning to the evidence of record, first, in a November 2006 VA treatment note the Veteran reported that he believed that the current flare ups of his lower back pain were work-related due to his position as a mail sorter at the United States Postal Service (USPS). In a November 2006 VA Form 9 the Veteran reported that his employment has been affected by his lower spine disability. He reported that his goal was to remain gainfully employed but he was being physically challenged by his job. He reported that he missed one day of work to take a pain shot for his back. At a January 2008 hearing before a Decision Review Officer (DRO) the Veteran testified that he was working at USPS. He reported that his job duties ranged from sorting flaps, which was not too laborious, to throwing parcels which was laborious. He testified that he ran a sort machine which was causing problems with his back. The Veteran was afforded a VA examination for his left leg in February 2008. At that time the Veteran reported that he was currently employed as a postal worker. He reported that he had been employed full time for 2-5 years and that the amount of time that he missed from work in the last year was less than one week. The examiner did not offer an opinion on the impact of the Veteran's knee disability on his ability to work. In a private physician note, dated April 2008, the Veteran was noted to suffer from chronic low back pain, necessitating a leave of absence from work until May 12, 2008. In a May 2008 statement, the Veteran reported that he resigned from his position on May 15, 2008. He stated that the exertion and pain that he suffered from in his back outweighed the benefits of his job at USPS. In January 2011 correspondence the Veteran reported that "[i]n the last 5 years, I have tried 2 jobs despite the intense pain in my back and knees". The Veteran stated that one of the jobs that he tried was at USPS. The Veteran cancelled VA compensation and pension examinations which were scheduled in June 2010 and July 2010. He was scheduled for a third examination on July 2010. The Veteran failed to report for this examination. Therefore, in March 2011 the Director of Compensation and Pension Services determined that the issue of extraschedular consideration for TDIU were not reasonably raised and declined jurisdiction over the matter. The Veteran was afforded a new VA examination for his thoracolumbar spine disability in September 2011. At that time the Veteran reported that he was no longer employed in his position at the post office because of his back and knee pain. The Veteran reported that he retired in 2007. The examiner did not address the impact of the Veteran's service-connected disabilities on his employability. In April 2013 the Veteran was afforded a new VA examination for his bilateral knee disability as well as his spine disability. The Veteran reported that he stopped working in 2010. At that time the examiner opined that neither the Veteran's bilateral knee disabilities nor his spine disability impacted his ability to work. The Veteran was afforded a VA General Medical examination in May 2013. The examiner determined that the Veteran had difficulty bending due to his service-connected bilateral knee condition. Also, due to the Veteran's service-connected back condition he had difficulty standing for prolonged periods of time, and twisting. The examiner stated that it would be difficult for the Veteran to maintain gainful physical employment, however he could maintain sedentary work as long as he was able to take breaks from prolonged sitting. As far as the Veteran's rhinitis, skin and peripheral nerve conditions, the examiner found that these disabilities did not impact his employment abilities. In July 2014 the Veteran was afforded another VA examination for his bilateral knee disabilities. At that time the examiner opined that the Veteran's knee conditions did impact his ability to work due to issues with immobilization, lifting, prolonged walking, fixed position, bending, kneeling and strenuous exertion. The examiner opined that the Veteran's knee disabilities would put moderate restrictions on sedentary work and severe restrictions on a physically demanding position. In April 2015 the Veteran's claim was forwarded to the Director of Compensation Services for extraschedular consideration. Following a review of the record the Director determined that the medical evidence showed that the severity of the Veteran's service- connected disabilities would not preclude him from securing and following gainful employment in a sedentary occupation, with breaks. In February 2021 the Veteran was afforded new VA examinations for his service- connected disabilities. Regarding the Veteran's cervical spine DJD, bilateral knee disabilities and his saphenous nerve neuropathy the examiner opined that the Veteran's should not be limited in his ability to perform sedentary occupational functions. In regard to the Veteran's lower back disability the examiner opined that the Veteran should not be limited in his ability to perform sedentary occupational functions if he has the ability to adjust his position as needed for comfort. Finally, the examiner opined that with regard to the Veteran's allergic rhinitis and onychomycosis the Veteran has the ability to perform active or sedentary occupational functions without restrictions. The record further indicates that during the February 2021 VA examination the Veteran reported that he has graduated from high school, and at that time he was 6 credits away from graduating college with a criminal justice degree. The Veteran reported that upon leaving the military he was retired from 2005 until 2008. He reported that he then drove a school bus in 2009. Notably, the Veteran reported that he then went to work for the post office where he is still employed as a substitute mail carrier. The Board does note that it is unclear from the evidence of record whether the Veteran's employment constitutes substantial gainful employment. However, the Board's previous decisions have asked the Veteran to complete a VA form 21-8490. The AOJ most recently sent a letter to the Veteran and his representative in June 2020 requesting that he complete an updated VA form 21-8940, to date, neither the Veteran nor his representative has returned a completed form or offered any additional information regarding the Veteran's employment history. The Veteran's failure to complete the VA Form 21-8940 leaves the Board without the ability to request information from his employer, and he has not otherwise provided his income or any other information that would support a finding of marginal employment in this case. Thus, the Board must find that the Veteran has been engaged in substantially gainful employment based on the evidence of record. Therefore, based on the above, the Board finds that the preponderance of the lay and medical evidence of record is against a finding that the Veteran was rendered unemployable from September 15, 2004 due to his service-connected disabilities. While the Board has no doubt the Veteran's service-connected disabilities cause challenges with his employability, these challenges are already compensated with his current ratings. The evidence of record, on the other hand, does not show his disabilities preclude substantially gainful employment. In fact, here as the evidence of record clearly shows, as recently as February 2021 the Veteran was still employed with USPS. There is no evidence to suggest that the Veteran is not still employed with this company or with another. Based on the foregoing, the Board finds that further referral to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted because the most credible, competent, and probative evidence of record does not reflect that the Veteran was unable to follow or secure substantially gainful employment due to his service-connected disabilities during the period on appeal. See also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Under these circumstances, the Board concludes that extraschedular referral for TDIU is not warranted. Gilbert, supra. (Continued on next page.) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.