Citation Nr: 21031329 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 14-21 132 DATE: May 21, 2021 ORDER Prior to July 31, 2017, entitlement to a total disability rating based on individual unemployability (TDIU), to include referral of consideration of a TDIU on an extraschedular basis, due to service-connected disabilities is denied. From July 31, 2017, entitlement to a TDIU is deemed moot. FINDINGS OF FACT 1. From April 16, 2010 to February 9, 2012, the Veteran did not meet the schedular criteria for a TDIU. 2. From April 16, 2010 to February 9, 2012, referral of consideration of a TDIU on an extraschedular basis is not warranted as the Veteran's service-connected disabilities were not shown to result in an inability to obtain or maintain substantially gainful employment. 3. From February 10, 2012, to July 30, 2017, the TDIU schedular criteria were met, but the Veteran's service-connected disabilities are not shown to result in an inability to obtain or maintain substantially gainful employment. 4. From July 31, 2017, the Veteran's combined schedular rating is 100 percent; he does not have a single disability rated 100 percent disabling (or a single disability rated 60 percent disabling) and the evidence does not indicate total unemployability due to one disability nor does the Veteran contend unemployability due to one disability. CONCLUSIONS OF LAW 1. Prior to July 31, 2017, the criteria for entitlement to a TDIU, to include referral of consideration of a TDIU on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. From July 31, 2017, the Veteran's TDIU claim is deemed moot. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2004 to March 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office. The case was previously remanded by the Board in May 2018. This matter was last before the Board in June 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Duty to Assist (TDIU) In June 2020, the Board found additional information was required before the Veteran's TDIU claim could be decided. Based on the Board's remand, the Veteran was to be provided a new VA Form 21-8940. The Veteran was also provided the opportunity to submit any additional evidence, such as income tax reports, income statements, employment documents, sick leave records, or any other information that would demonstrate how his service-connected disabilities have affected his earnings. The Veteran was contacted by the RO in July 2020. There is nothing in the record indicating the Veteran was not aware of VA's attempts to contact him for the requested information. The address and phone number for the Veteran appear to be current. The record does not reflect any returned or undelivered mail. In the months since, the Veteran has not submitted any correspondence explaining his failure to respond to attempts to obtain the requested information, nor has he provided any good cause for this failure. The Veteran was sent a SSOC in February 2021 regarding the issue. The February 2021 SSOC, which described his failure to respond to requests for additional information, was mailed to his last known address of record and was not returned as undeliverable. To date, he has not reported he did not receive notice of the requested information, provided good cause as to why he did not respond to requests for the information, or otherwise requested that he be given another chance to provide the information. Additionally, the Veteran indicated that he was receiving private treatment in March 2017. In April 2017, VA informed the Veteran that his medical records release had been rejected because it was not signed. The Veteran was provided a new release in October 2017. In the months since, the Veteran did not submit a signed release. Neither the Veteran nor his representative have raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Moreover, given the presumption of regularity of the mailing of the VA notice and the fact that the Veteran has not provided a reason for his failure to provide the requested information, the Board is satisfied that the Veteran received notice of the request. The Board will consider the claim without the benefit that this information may have provided. 1. Prior to July 31, 2017, entitlement to a total disability rating based on individual unemployability (TDIU), to include referral of consideration of a TDIU on an extraschedular basis, due to service-connected disabilities is denied. 2. From July 31, 2017, entitlement to a TDIU is deemed moot. The Veteran contends that his service-connected disabilities prevent him from being able to secure or follow a substantially gainful occupation. See June 2013 TDIU application. Total disability ratings 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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). From April 16, 2010, to February 10, 2012, the Veteran was service connected for posttraumatic stress disorder (PTSD), rated as 30 percent disabling; lumbar spine strain, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and a right ankle disability, rated as non-compensable; for a combined disability rating of 40 percent. From February 10, 2010 to February 11, 2013, the Veteran was service connected for traumatic brain injury (TBI), rated as 40 percent disabling; PTSD, rated as 30 percent disabling; diarrhea disorder, rated as 30 percent disabling; migraines, rated as 30 percent disabling; lumbar spine strain, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; left knee tendonitis, rated as 10 percent disabling; right knee strain, rated as 10 percent disabling; and a right ankle disability, rated as non-compensable; for a combined disability rating of 90 percent. From February 11, 2013 to July 31, 2017, the Veteran was service connected for TBI, rated as 40 percent disabling; PTSD, rated as 30 percent disabling; diarrhea disorder, rated as 30 percent disabling; migraines, rated as 30 percent disabling; lumbar spine strain, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; left knee tendonitis, rated as 10 percent disabling; right knee strain, rated as 10 percent disabling; and a right ankle disability, rated as 10 percent disabling; for a combined disability rating of 90 percent. From July 31, 2017, the Veteram is rated at a combined 100 percent disability rating. The Veteran is service connected for sleep apnea, rated as 50 percent disabling; TBI, rated as 40 percent disabling; PTSD, rated as 30 percent disabling; diarrhea disorder, rated as 30 percent disabling; migraines, rated as 30 percent disabling; lumbar spine strain, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; left knee tendonitis, rated as 10 percent disabling; right knee strain, rated as 10 percent disabling; right ankle disability, rated as 10 percent disabling; and erectile dysfunction (ED), rated as non-compensable. Additionally, from December 6, 2019, the Veteran is also service connected for bilateral hearing loss, rated as non-compensable. The Board notes that the presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). In this case, however, the Veteran does not have single disability that is 100 percent rated, he does not have a single disability that is 60 percent rated, and he does not allege that any single disability rendered him unable to work. See June 2013 TDIU application. Rather, his contention has always been that the combined effect of his service-connected disabilities render him unemployable and, therefore, under the facts of this case, his 100 percent schedular combined disability ratings, from July 31, 2017, does render his TDIU claim moot, effective from that date. Additionally, the Veteran did not meet the schedular criteria for TDIU prior February 10, 2012. The Veteran did not a have single service-connected disability ratable at 60 percent or more. None of the Veteran's disabilities were rated at 40 percent or more and there is not a not a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where percentage requirements of section 4.16(a) are not met, if the evidence establishes that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board's sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence showing the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. Since February 10, 2012, the Veteran has met the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable 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 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). For reasons outlined below, the Board finds referral for extraschedular consideration is not warranted from April 16, 2010 to February 9, 2012, and a TDIU is not warranted from February 10, 2012, to July 30, 2017, because the preponderance of the evidence does not support that the Veteran was unable to maintain substantially gainful employment due solely to service-connected disabilities. The Board further finds the TDIU claim moot from July 31, 2017, in light of his schedular 100 percent combined disability rating and the circumstances of this case as outlined above. A July 2010 VA examination report reflects that the Veteran was working as a clerk at a convenience store. He had lost no work time over the last year due to medical reasons. He had no work restrictions or accommodations. The Veteran was able to exercise regularly by playing sports including basketball, soccer, and swimming. He had no limitations of running or walking. He noted that during a 9-hour shift standing as a clerk at a convenience store, that he needed to sit for approximately 45 minutes during the 9-hour shift due to back discomfort. He had no limitation of sitting, stairs, or lifting. He had no limitations of activities of daily living and is fully capable of dressing, undressing, eating, cooking, personal hygiene, writing, and driving. He did not use a cane, walker, wheelchair, or any braces. The Veteran audiological disabilities caused no significant occupational effects. A July 2010 VA psychiatric examination report reflected that the Veteran was working as head of security in a bar called Club 101. He worked approximately 20 hours per week and had held this position over the last nine months. He also held a second job at a convenience store where he is a clerk. He worked approximately 36 hours and held this position for approximately three months. Previous to this, the Veteran held a position at AT&T for one year as a customer service representative. He noted he had concentration difficulties on the job and stated when he was tending the bar, he would forget how to make mixed drinks and had to look them up. It was also noted that the Veteran stated he would forget people's names. A February 2013 VA PTSD examination report reflected that the Veteran reported his difficulties with PTSD had impacted his occupational functioning in that he could not stand to have people walk behind him, and thus felt he must always be in a corner; something which was not always possible. Since his last PTSD examination, the Veteran had worked at a bar (as a bartender, head of security, and manager) from November 2009 until August 2011, and left because he "got tired of bar drama." He then went to work as a corrections officer at a medium security prison in August 2011 but left that job in May 2012 as he did not like being confined with prisoners. The Veteran was unemployed at the time of the examination. The Veteran shared that he graduated high school, and that he tried to begin college at a local community college but became frustrated when he was told that he would have to sign up a year in advance since he was going to use the GI bill. Because of this, and because he's was sure what career field he wanted to go into, he is putting off his education for the time being. See June 2013 CAPRI. The examiner who performed the examination opined that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. See June 2013 CAPRI. A February 2013 VA intestinal conditions examination report reflected that the Veteran reported frequent diarrhea due to his diarrhea disorder. See June 2013 CAPRI. The examiner who performed the examination opined that the Veteran was functionally impaired in that he would need to be close to a bathroom. It was noted that the Veteran had previously worked at a prison and in telemarketing and did not quit those jobs because of the condition. See June 2013 CAPRI. A May 2013 VA ankle examination report reflected that the Veteran said he was applying for jobs and getting turned down because he could not stand for more than 25 minutes at a time without pain developing in his right ankle. See June 2013 CAPRI. The examiner who performed the examination opined that the Veteran was functionally impaired in that he could not be on his feet all day without pain in the right ankle. The examiner noted that the Veteran had only tried to get jobs in stores such as Wal-Mart and Home Depot, where being on his feet and/or doing manual labor was required. The examiner opined that the Veteran could instead do sedentary work without any limitations relative to his ankle condition. He could also do counter work or cashier work where he could sit/lean on a stool to take pressure off of his right ankle. See June 2013 CAPRI. A May 2013 VA TBI examination report reflected the Veteran's motor activity was normal. The Veteran had subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family or other close relationships. The Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. See June 2013 CAPRI. The examiner who performed the examination opined that from a TBI viewpoint (not taking in to account other co-morbidities), the Veteran would be able to sit, stand, and walk 8 hours out of a regular 8-hour workday. From a TBI viewpoint, there would be no limitations for lifting, carrying, manipulating objects, bending, crouching, stooping or driving when not having a headache. The Veteran might have limitations for tolerance of light and noise during a headache. See June 2013 CAPRI. A May 2013 VA headaches examination report reflected that the Veteran would have frequent characteristic prostrating attacks of migraine headache pain. See June 2013 CAPRI. The examiner who performed the examination opined that from a headache viewpoint (not taking in to account other co-morbidities), the Veteran would be able to sit, stand, and walk 8 hours out of a regular 8-hour workday. From a headache viewpoint, there would be no limitations for lifting, carrying, manipulating objects, bending, crouching, stooping or driving when not having a headache. The Veteran might have limitations for tolerance of light and noise during a headache. See June 2013 CAPRI. A May 2013 VA back examination report reflected that the Veteran reported that he was limited to lifting 25 pounds due to pain. Range of motion testing was normal. See June 2013 CAPRI. The examiner who performed the examination opined that Veteran may be limited in any vocation that involves repetitive heavy lifting and carrying, bending, and twisting. See June 2013 CAPRI. A May 2013 addendum to the Veteran's February 2013 PTSD examination report reflected that due to the Veteran's difficulty with irritability, he would likely do best in situations where he was able to work largely alone and where people won't startle him. See June 2013 CAPRI. In June 2013, the Veteran submitted a TDIU application. He indicated that he was unable to work due to his back, knee, ankle, and gastrointestinal disabilities. The Veteran indicated that he had last worked in May 2012 as a corrections officer and as a bartender. He indicated that he had past experience in sales positions. In March 2017, the Veteran indicated the he could not walk or stand without stopping due to severe pain. The Board notes that it is unclear if the Veteran was attributing this pain to any specific service-connected disability. The Veteran also indicated that he was experiencing migraines 4 times a week and would have to stop what he was doing and lie down in a dark room during a migraine. Although the Veteran's TDIU claim from July 31, 2017 is moot, the Board notes that a December 2019 VA PTSD examination report contains relevant information regarding the Veteran's work history. The report reflects that the Veteran shared that beginning in January 2013 he worked for Vaporsource for a period of 5 years, and then after he left there he was working for RCSC at a racetrack which he continued to do at the time of the examination. The Veteran also shared he was currently in school and he had started school in 2017. He earned a degree in automotive technology and was now studying HVAC. As noted above, in June 2020, the Board found additional information was required before the Veteran's TDIU claim could be decided. Based on the Board's remand, the Veteran was to be provided a new VA Form 21-8940. The Veteran was also provided the opportunity to submit any additional evidence, such as income tax reports, income statements, employment documents, sick leave records, or any other information that would demonstrate how his service-connected disabilities have affected his earnings. The Veteran did not provide the requested information. In rendering a closer examination of the evidence, the Board finds the evidence does not support referral for extraschedular consideration from April 16, 2010, to February 10, 2012, or a TDIU from February 10, 2012. See Ray, 31 Vet. App. 58 (holding that the Board's referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU). While the evidence shows the Veteran had significant physical and mental limitations, his service-connected disabilities did and would not preclude employment. The Board acknowledges that the Veteran's service-connected disabilities are productive of many difficulties, as indicated by the disability ratings assigned throughout the appellate period. However, while the Veteran undoubtedly suffers significant impairment from his disabilities, the competent evidence of record preponderates against a finding that he is unemployable due to his service-connected disabilities. While the record indicates that the Veteran has at times been unemployed, it does not establish he has been unemployed for a significant amount of time. Rather, the evidence reflects that the Veteran was able to be employed as a convivence clerk in 2010, at a bar from 2009 to 2012, as a corrections officer in 2011 to 2012, and at Vaporsource from 2013 to 2018. Additionally, the Veteran began attending school beginning in 2017. The Board considered the physical ability-factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. 58. While the evidence does show that the Veteran had difficulties with walking, standing, lifting, and bowel movements, it also reflects that the Veteran was able to find consistent employment throughout the appellate period. Furthermore, it does not reflect that the Veteran was limited from obtaining sedentary employment. The Board also considered the mental ability-factors noted in Ray, to include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. 58. The evidence overwhelmingly indicates, however, that while the Veteran's PTSD caused him psychological difficulties, he was able to continue working full time. Additionally, the Veteran was able to go to school while he continued to work. At worst examiners have found that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran has not alleged, nor had he provided evidence that his employment during the appellate period was marginal. The Board notes that the Veteran's full occupational history, income history, and private medical records are not of record. This information would have been helpful in helping the Board determine the Veteran's true employment and earning history. As noted above, an attempt was made to obtain such information, but the Veteran did not provide it. Although VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). In summary, the Veteran no doubt has vocational impairment caused by his service-connected disabilities, as evidenced by his disability ratings throughout time. However, the evidence does not establish that his service-connected disabilities have precluded substantially gainful employment. Based on the foregoing, and the totality of the evidence, the Board finds that the weight of evidence does not show the requirements for TDIU, to include an extra-schedular referral, have been met. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.