Citation Nr: 21031954 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 12-25 901 DATE: May 25, 2021 ORDER Referral for consideration of entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is not warranted. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. CONCLUSION OF LAW The criteria for consideration of an extraschedular TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2004 to July 2006. In a July 2017 decision, the Board of Veterans' Appeals (Board) determined that the issue of entitlement to a TDIU rating was reasonably raised by the record, pursuant to Rice v. Shinseki, relating to an increased rating claim for the Veteran's spine disability that was filed in November 2009. 22 Vet. App. 447 (2009). The Veteran's increased rating claim has since been adjudicated and is not presently before the Board. The July 2017 decision remanded the matter of TDIU for further development and to provide the Veteran with a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), with instructions for the Veteran to fill the form out completely and return it to the Board. The Veteran was subsequently provided a VA Form 21-8940, but never returned it to the Board. The matter was remanded again thereafter for additional development. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). While the Veteran's TDIU claim relates to her increased rating claim filed in 2009, the Veteran's representative has indicated that the issue of TDIU was raised by a 2006 VA examination that stated that the Veteran is unemployed due to an inability to stand or sit for more than 30 minutes without back pain. The Veteran has reported chronic lumbar spine pain increased by prolonged sitting or standing, radiating into her right leg with weakness in her right knee. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran's service-connected disabilities do not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a). The Veteran is service connected for the following disabilities with the following ratings: lumbosacral strain, 20 percent disability rating from July 11, 2006; residuals of right knee injury, 10 percent disability rating from July 11, 2006; chronic right ankle strain, 10 percent disability rating from July 11, 2006; trochanteric bursitis of the right hip, 10 percent disability rating from November 20, 2009; and right ear hearing loss, 0 percent disability rating from July 11, 2006. Thus, the Veteran has had a combined disability rating of 40 percent from July 11, 2006. It is noted that the Veteran has multiple nonservice-connected disabilities, including migraines/seizures, numbness in the right hand, and posttraumatic stress disorder, which cannot be considered for purposes of TDIU. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his/her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that referral for extraschedular consideration of a TDIU rating is warranted. The reasons follow. Initially, a determination on the matter of TDIU has been hindered by the Veteran's failure to submit a completed VA Form 21-8940, which was provided to her and requested to be returned, pursuant to the July 2017 Board remand order, which specifically directed the Veteran "to clarify if and when she stopped working, and list all of her employment for the last years that she worked, including any part-time work." The duty to assist a claimant is not a one-way street and the Veteran has failed to cooperate to the full extent in the development of her claim. Wood v. Derwinski, 1 Vet. App. 406 (1991); 38 U.S.C. § 5107(a). The Veteran has failed to provide relevant information relating to her education, work history, and what disabilities she believes render her unemployable that would aid in the adjudication of this claim. However, the record contains significant evidence that the Veteran maintained full-time employment for most of the relevant period, continues to work in a substantially gainful occupation, and is not precluded from substantially gainful employment due to her service-connected disabilities. For example, while the Veteran may have been unemployed briefly following her discharge from active duty in 2006, treatment records from 2007 show that the Veteran was working two jobs while also taking classes as a student. In 2011, the Veteran reported that she enjoys occasional paintball games or bicycling with friends. In early 2012, the Veteran started working a new job as tech support with AT&T while continuing to take college classes. She stated that she enjoyed her job and "working every day from 9:00-6:00pm except Thursdays." In May 2012, the Veteran discussed her long-term goals of advancing her career within AT&T. In July 2012, records reported the Veteran's medical conditions were stable and that she exhibited independent goal-oriented behavior with a history of self-motivated achievement. The Veteran reported continued employment with AT&T while also attending online classes with St. Leo University to obtain a bachelor's degree in criminal justice. In December 2013, the Veteran earned her degree and reported that she got a promotion at work to be a trainer. She stated that she was named employee of the month and that her wages were $12 per hour. Thereafter, the only extended period of unemployment was for approximately a year in 2016 when the Veteran reported that she took a year off to raise her child. She did not allege that service-connected disabilities prevented her from holding a job during this time. However, in February 2017, the Veteran reported working as a salesperson at a car dealership. The following month she reported returning to employment with AT&T as an assistant business manager. The Veteran stopped working at AT&T in August 2017 because she was hired to work at Cricket after two days of training. By October 2017, the Veteran reported that she was already offered a position as store manager. In June 2018, the Veteran reported that she moved to Georgia to continue working for AT&T, but that she was looking for better paying opportunities. Vocational rehabilitation documents from 2019 show that the Veteran reported working full time in sales for Samsung from August to October 2018 with earnings of $2,400 per month after taxes. She listed "contract" as her reason for leaving the job. She reported working in inventory for Lowes full time from November to December 2018, earning $1,900 per month after taxes. She stated that she left because she was not the right fit for the job. She reported working in data entry for Baker Distribution in a temporary position from August to October 2019, earning $2,000 per month after taxes. She stated that she left the job because she was told she was not the right fit for the job. She reported working in inventory and shipping for Module Experts full time from October 2019 to the "present" (December 2019), earning $1,950 per month, after taxes. Despite frequent job changes, the Veteran did not indicate that she was unable to perform any of these positions due to her service-connected disabilities, and maintained near constant employment. In early 2019, the Veteran was briefly unemployed after incurring a domestic violence charge after discontinuing psychiatric medications for a psychiatric disorder for which the Veteran is not service connected. However, the Veteran soon resumed employment, as described above. Income records furnished by the Social Security Administration (SSA) in October 2019 state that the Veteran was working 40 hours per week, earning $16 per hour with gross monthly income of $2,778. The Board notes that all the monthly earnings listed above exceed the poverty level as indicated by the threshold for earnings of substantially gainful activity by SSA, which is $1,310 per month in 2021. Counseling records relating to the Veteran's vocational rehabilitation records in December 2019 state that the Veteran ambulates without assistance and is independent in activities of daily living, including matters of personal care, managing finances, shopping, handling transportation, managing medication, and/or performing housework or basic home maintenance. She was noted to have a valid driver's license and to drive a car without restrictions. Treatment records from 2021 indicate that the Veteran has continued to work full time from home in the field of IT. As to the Veteran's diverse work history, the record does not support, nor has the Veteran alleged, that any of her employment described herein was part of a sheltered or protected work environment. VA examinations performed in August 2019 state that the Veteran's right knee, right hip, and right ankle disabilities do not impact the Veteran's ability to work. On audiological examination, the Veteran reported that she cannot hear clearly out of her right ear. However, treatment records do not document communication deficits from her right ear hearing loss and she has demonstrated the ability to perform and excel in occupations that require frequent telephone communication, include in her multiple years of work in IT/tech support. The Veteran's demonstrated capacity for sustained full-time employment is probative evidence against a finding that an inability to sit or stand for extended periods without pain, or any other limitation, prevents the Veteran from obtaining and following a substantially gainful occupation. Regarding the Veteran's education, training, skill, and work history, an evaluation relating thereto has been hindered by the Veteran's failure to submit Form 21-8940. However, as discussed above, the Veteran's treatment records provide some pertinent information. Notably, the Veteran earned a bachelor's degree in criminal justice during the appeal period, and has held several full-time jobs, including continuing work in the field of IT/tech support, as well as multiple past jobs in sales, inventory, data entry, and retail store management. Despite several job changes, the record does not show that the Veteran had to stop working as a result of her service-connected disabilities. Treatment notes routinely reflect the Veteran's efforts to improve her career and employment prospects. The Veteran's diverse work history and advanced education during the relevant period demonstrate a capacity for learning, training, adaptability, and working with others that is not hindered by her service-connected disabilities. The Veteran's steady employment since her discharge from active duty is probative evidence against a finding that the Veteran's service-connected disabilities prevent her from obtaining and sustaining employment. As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran experiences chronic pain symptoms associated with her service-connected disabilities. These disabilities have not prevented the Veteran from maintaining consistent employment in a range of occupations and earning a college degree during the appeal period. Vocational rehabilitation records reflect that the Veteran ambulates without assistance and is independent in activities of daily living, including matters of personal care, managing finances, shopping, handling transportation, managing medication, and/or performing housework or basic home maintenance. She also is able to drive without restrictions. The totality of the evidence shows that the Veteran is physically capable of performing substantially gainful employment. As to the Veteran's mental ability to perform substantially gainful employment, the Veteran is not service connected for any psychiatric disorders. Treatment records show the Veteran to have intact cognitive functioning. She earned a bachelor's degree in criminal justice during the relevant period and been capable of performing several jobs, including serving as a manager and multiple occupations requiring frequent interaction with the public. As the Veteran's service-connected disabilities do not cause the Veteran vocational limitations, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran's physical and mental abilities with consideration of her education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment. For example, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities would preclude her from continuing her full-time work in IT/tech support. The record also does not show that the Veteran's service-connected disabilities would prevent her from pursuing her stated goal of working as a probation officer with her degree in criminal justice. Additionally, the Veteran would be capable of performing her past work in sales, inventory, data entry, and as a store manager. Although the Veteran indicated that some of these jobs were a "a bad fit," she has not indicated that performance of these jobs was precluded by her service-connected disabilities. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform based on her employment and educational pursuits during the appeal period. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment due to her service-connected disabilities during the relevant period. Her demonstrated functional capabilities make clear that there is no shortage of occupations that the Veteran is capable of performing. For all the reasons described above, the Board concludes that the preponderance of the evidence is against a finding that Veteran is precluded from all forms of substantially gainful employment due solely to her service-connected disabilities. Therefore, entitlement to referral for consideration of an extraschedular TDIU rating during the appeal period is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, an extraschedular TDIU rating is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.