Citation Nr: 21031745 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-04 911 DATE: May 24, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not prevent him from obtaining or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for the assignment of TDIU due to service-connected disabilities have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to December 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2020 decision, the Board determined that a claim for entitlement to TDIU had been raised by the record. Entitlement to TDIU was remanded by the Board in January 2020 for additional development. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that this matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to total disability based on individual unemployability The Veteran and his attorney maintain that his service-connected acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety, and his service-connected atrial fibrillation prevent the Veteran from obtaining and maintaining any form of substantial gainful employment. Factual Background An undated report of contact contained in the Veteran's social security administration (SSA) records documents the Veteran's report that he became disabled in June 2006 after he stopped working for General Motors and tried unsuccessfully to work elsewhere. On an undated SSA Form 3368, the Veteran reported that residuals from his stroke and his asbestosis limited his ability to work. The Veteran's explained that these illnesses limited his ability to work because he could not lift anything, could not strain, was in constant pain, had poor vision, and had a hard time breathing. An October 2006 SSA questionnaire was completed by a physician and notes diagnoses of cerebral accident and stroke, asbestosis, pulmonary veno-occlusive disease, and chronic anxiety. The physician noted that the Veteran would have difficulty with complex reasoning or with stresses associated with his duties and that the Veteran was also limited by his dyspnea. An October 2006 SSA report of contact documented the Veteran's reports that he had a stroke on his left side in 1996. The Veteran reported residual symptoms of dizziness, balance problems, headaches on the left side, memory problems, and pain in his neck. The Veteran had additional impairment due to asbestos exposure which led to difficulty walking without breaks and shortness of breath. The Veteran also reported pain in his lower back due to a past fall but that he was not currently receiving treatment for it. Lastly, the Veteran reported that he retired in May 2006 and had not worked since. A July 2015 private treatment record notes that the Veteran was in atrial fibrillation but that he did not have any symptoms other than a mild decline in exercise tolerance. The Veteran denied chest pain or pressure, palpitations, shortness of breath, or dizziness. He also reported that he was quite active and continued to work regularly on his farm. An October 2015 VA treatment record contains the results of a PHQ-9 depression screening which revealed a score of 15 based on the Veteran's responses and was suggestive of moderately severe depression. Notably, the Veteran reported that his psychiatric symptoms did not make it difficulty at all for him to do his work, take care of things at home, or get along with other people. The Veteran was afforded a VA examination for his claimed heart disability in March 2016. The March 2016 VA examiner determined that the Veteran did not have a heart disability and that the Veteran's claimed heart disability did not impact his ability to work. The Veteran was afforded another VA examination in March 2016 for his acquired psychiatric disability. When asked to describe his childhood, the Veteran stated that it was "rough" and that he had to work hard on the family farm because his father died at age 50 when the Veteran was only 16 or 17 years old and 5 of the Veteran's siblings were still at home. The Veteran also reported that he and his wife had divorced approximately 10 years prior and were divorced for approximately 8 months before remarrying. The Veteran later admitted during the examination that he and his wife remarried because his wife was injured and unable to work and they needed to be married for her to be on his insurance. The VA examiner noted that the Veteran's relationship with his wife was rather dysfunctional. The Veteran reported current anxiety symptoms to the point that he had panic attacks, trouble maintaining his temper, regular arguments with his wife, significant difficulty sleeping, and dreams of Vietnam two or three times every week. However, the Veteran reported that he got along well with his 6 living siblings. The Veteran also reported that he got along well with the regular patrons at two bars he frequented. During his March 2016 VA examination, the Veteran revealed a significant work history. After discharge from the military, the Veteran reported that he worked at his first post-service job for nine and a half years. The Veteran eventually obtained a job with General Motors and worked there as a pipefitter for thirty and a half years until the Veteran retired and the plant closed. The Veteran reported that he continued to help on the family farm that he and his brother bought. He reported that his nephew currently lived on the farm but that he would go visit it once a month during the warmer months. The Veteran also reported that he performed his own yard work and worked on upkeeping his home during the summer months. September 2016, December 2016, March 2017, May 2017, June 2017, July 2017, October 2017, December 2017, January 2018 and April 2018 private treatment records note that the Veteran was retired but that he did remodeling work with his son. The Veteran underwent a private rehabilitation psychological examination in May 2019. During the examination, the Veteran reported that he worked at General Motors for over 30 years until May 2006 when he retired because the plant operations were transferred to Mexico and he was offered a bonus to retire. He explained that his legs and "emotional pain" bothered him and he could not perform the essential duties of his job any longer. The Veteran reported that he could not walk very far because of residuals from his stroke. The Veteran also reported that he took prescription anxiety medication continuously since 1984 following a nervous breakdown. Currently, the Veteran reported that he had a hard time getting along with his wife and still had nightmares "and stuff like that." At the time of the examination, the Veteran had been married for 47 years. The private examiner noted that the Veteran had severe impairment due to his service-connected anxiety. Notably, the private examiner noted that the Veteran had a stable childhood and that his deficiencies were not likely due to stroke or dementia. The private examiner conducted a series of mathematical equations to determined that the Veteran's potential labor market access was reduced to 0.0 percent of the jobs expected to turn in a given calendar year. First the private examiner explained that the Veteran's work history only provided him access to 40.4 percent of the total jobs listed in a dictionary of occupational titles or 31.1 percent of the jobs expected to turn in a given calendar year. The private examiner then explained that the Veteran's impaired concentration attributed to his service-connected anxiety disorder reduced his access to only 13.5 percent of the total jobs listed in a dictionary of occupational titles or 6.8 percent of the jobs expected to turn in a given calendar year. The private examiner then further reduced these numbers based on cognitive impairment that the private examiner attributed to the Veteran's service-connected anxiety disorder reducing the numbers to only 3.4 percent of the total jobs listed in a dictionary of occupational titles or 1.7 percent of the jobs expected to turn in a given calendar year. The private examiner then reduced the job possibilities to 0 percent based on the Veteran's measured perceptual distortions. However, the private examiner noted that the Veteran's intellectual capacity was estimated to be in the normal range based on his employment history, word usage, and intellectual capacity. The private examiner concluded: "Based on new information relevant to his claim (vocational testing, interview, and observation), it is my professional opinion that he is unable to secure and follow substantially gainful employment that would be more than marginal without relying on a protected environment. I recommend his disability rating should be 100 percent due to unemployability." Analysis At the outset, as previously mentioned, in June 2020, the Veteran was sent a letter which specifically requested that he complete and return an enclosed VA Application for Increased Compensation Based on Unemployability, VA Form 21-8940. The Veteran's attorney was copied on the June 2020 correspondence. To date, neither the Veteran nor his representative has submitted a VA Form 21-8940 or any comparable statement containing the requested employment information. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and the treatment he has received for the disability(ies). The veteran is further asked to supply information about his employment, including dates when his disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. The VA Form 21-8940 also requests information regarding the veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether the veteran has attempted to obtain employment since he became too disabled to work. The information provided by a veteran on a VA Form 21-8940 can be used by the RO to submit requests for his previous employers to complete a VA Form 21-4192. As such, this information is critical to the resolution of the Veteran's TDIU claim. VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A veteran must cooperate when she is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Additionally, when evidence requested in connection with an original claim or a claim for increase is not furnished within a year of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). The critical facts at this stage are clear. The Veteran has not provided the information or VA forms necessary for VA to adjudicate his claim of entitlement to TDIU. Accordingly, the Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Because of his failure to cooperate and since one year has passed since the June 2020 request for information, the Board finds that the Veteran has abandoned his claim. As such, the Board finds that the appeal must be denied. The Board also finds that even if the Veteran's claim was not deemed abandoned, for the reasons stated below an award of TDIU is further not warranted. The Veteran has been awarded service connection for an acquired psychiatric disability, to include PTSD and anxiety, rated at 70 percent from November 4, 2015, atrial fibrillation rated at 10 percent from November 4, 2015, and residuals from a fractured left third metatarsal rated at 0 percent from October 18, 1984 with a combined rating of 0 percent from November 4, 2015. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, a total rating may nonetheless be granted on an extraschedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The Board acknowledges that the Veteran has met the statutory thresholds for consideration of schedular TDIU but finds that TDIU is not warranted. Initially, the Board finds that the Veteran's contention that his service-connected anxiety and his service-connected atrial fibrillation causes him to be unemployable lacks credibility. The Board notes that the Veteran reported on an undated SSA Form 3368 that residuals from his stroke and his asbestosis limited his ability to work. An October 2006 SSA report of contact documented the Veteran's reports of a stroke on his left side in 1996. The Veteran also reported continuing symptoms of dizziness, balance problems, headaches on the left side, memory problems, and pain in his neck that he attributed to his stroke. The Veteran reported further impairment due to asbestosis including difficulty walking without breaks and shortness of breath. The Veteran also reported pain in his lower back due to a past fall but that he was not currently receiving treatment for it. Moreover, the Veteran reported that he retired in May 2006 and had not worked since. Even as recently as May 2019 the Veteran reported that leg problems following his stroke contributed to his unemployability because he could not walk very far. The Board emphasizes that the Veteran has not been awarded service connection for residuals from his stroke, for asbestosis, nor for a back disability. The Veteran and his attorney now assert that the Veteran's service-connected psychiatric disability and his service-connected atrial fibrillation prevents him from working, rather than symptoms or residuals from his non-service-connected 1996 stroke, asbestosis, or back injury. The Board emphasizes that the Veteran has not reported any symptoms of his atrial fibrillation that interfere with his ability to work. See July 2015 VA treatment record. Moreover, despite having moderately severe psychiatric symptoms, the Veteran previously reported that his psychiatric symptoms did not make it difficulty at all for him to do his work, take care of things at home, or get along with other people. See October 2015 VA treatment record. The Board finds that the Veteran's reports of an inability to work due to his service-connected disabilities lacks credibility and is inconsistent with his SSA records and treatment records. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The Board also notes that the May 2019 private examiner's report, which provides a favorable opinion for TDIU, is based in part on inaccurate factual premises. For example, the May 2019 report notes that the Veteran had a stable childhood when in fact the Veteran reported a "rough" childhood during his March 2016 VA examination. Moreover, the private examiner noted that the Veteran had a negative relationship with his wife but failed to consider the unconventional financial reasons for their remarriage. The private examiner also failed to consider that the Veteran had reported elsewhere in the record that he got along well with his siblings and with patrons at bars he frequented. The only problematic relationship referenced by the Veteran anywhere in the record is the relationship with him wife whom he had previously divorced and remarried for financial reasons. The May 2019 VA examiner also noted the Veteran's reports of impairment due to non-service-connected disabilities but failed to explain why the Veteran's unemployability was due to his service-connected disabilities rather than the non-service-connected disabilities which the Veteran continues to report impairs his ability to work and for which SSA disability benefits were initially sought. Accordingly, the Board affords limited probative value to the May 2019 private examiner's report. The Board affords greater probative weight to the Veteran's lay statements contained in his VA and private treatment records because statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346 (1992). The Veteran reported in VA treatment records that he did not have any noticeable symptoms from his atrial fibrillation other than a mild decline in exercise tolerance. See July 2015 VA treatment record. As previously addressed, the Veteran also stated that his service-connected psychiatric disability did not impact his ability to do his work, take care of things at home, or get along with other people. See October 2015 VA treatment record. Moreover, post-retirement the Veteran reported during VA and private treatment that he continued to engage in work on his family farm and worked with his son in his remodeling business until at least April 2018. Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of TDIU due to service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Because the record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the claim for entitlement to TDIU must be denied. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi, 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. § 21303.