Citation Nr: 21031969 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-36 040 DATE: May 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities does not preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1967 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). This matter was previously before the Board in April 2019. At that time, the issue of a TDIU was noted to be part and parcel of an increased rating claim and the Board remanded the matter for further development. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran contends that he is unemployable due to his service-connected PTSD. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. § 4.16. In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. In adjudicating the issue of entitlement to a TDIU, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. The Veteran's service-connected disabilities include bronchial asthma, rated at 10 percent from February 24, 1988, and 30 percent from May 15, 2001; PTSD rated at 30 percent from October 6, 2011; Diabetes Mellitus, Type II, rated at 20 percent from February 20, 2020; and a noncompensable rating for eczema from February 20, 2020. His combined ratings do not exceed 60 percent. Thus, the Veteran did not meet the schedular requirements for TDIU during the appeal period and may not, as a matter of law, be awarded a TDIU pursuant to 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(a). Nonetheless, if the schedular requirements are not met, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. § 4.16 (b). See Bowling v. Principi, 15 Vet. App. 1 (2001). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." 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, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In the instant case, the Veteran reported that his unemployability is based on his service-connected PTSD. See VA Form 21-4138, Statement in Support of Claim, received October 2012. Pursuant to the April 2019 Board remand, the AOJ requested that the Veteran complete a formal application for a TDIU (VA Form 21-8940) and identify his previous employers to help establish his claim. The Veteran submitted an incomplete form in October 2019. The AOJ requested the information multiple times. The Veteran did not provide additional information regarding 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 pertinent to his claim for a TDIU. Having reviewed the claims file, the Board finds that the evidence of record does not satisfy the requirements for referral of the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16 (b). In terms of education, the Veteran reported in his October 2019 TDIU application that he completed high school but did not have any additional education or training. Regarding employment, he reported that he last worked in October 2015. In a November 2011 VA examination, the examiner determined the Veteran experienced occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran reported working as a call center supervisor. At a VA examination in August 2015, the Veteran reported dropping out in 10th grade and not obtaining a GED. After separation from service he worked on an assembly line, as a groundskeeper, and at a call center. He reported last working 5 years prior and supporting himself with his VA disability and social security income. In an Individual Employability Statement, a psychologist noted the Veteran had no job related difficulties secondary to his service connected mental health issues. See VA exam, dated January 2020. Additionally, the Veteran reported he was working 25-27 hours a week driving cars for a car rental service and that his performance was good at his current job without any problems or reprimands. See VA exam, received February 2020. The Board finds that the evidence of record, lay and medical, does not reflect that the Veteran's service-connected PTSD prevents him from securing or following substantially gainful employment. As previously noted, the fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. Van Hoose, 4 Vet. App. at 361. The question is whether the Veteran is capable of performing the physical and mental acts required by employment due to his service-connected disabilities, not whether he can find employment. The evidence of record reflects the Veteran is currently employed, is not having difficulties at work, and his PTSD examinations reflect his ability to work. The Board finds that the evidence of record weighs against the Veteran's claim, including the February 2020 VA examinations that the Veteran's PTSD did not impact his ability to perform work. The Board has reached its conclusion based on the evidence available in the record. In that regard, the record establishes that the Veteran is still working. As noted above, while the evidence demonstrates that the Veteran has had short periods of unemployment, he has been employed throughout the majority of the appeal period and the most recent evidence of record shows that he is currently working at a car rental service. Further, there is no evidence of record suggesting that the Veteran is unemployable due to his service-connected PTSD. The only evidence of record addressing the impact of the Veteran's PTSD upon his employability is a statement from the Veteran saying he was fired from his job after yelling at a customer. See VA examination, received February 2020. The Board recognizes that the Veteran's service-connected difficulties have negatively impacted his ability to perform skills required for gainful occupation. This has been considered, however, in his assigned individual impairment ratings. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner."). Here, the Board finds that the weight of evidence, lay and medical, including the Veteran's level of education and previous work experience, is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD. See 38 C.F.R. § 4.16. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). After careful review of the entire record, the Board has determined a preponderance of the evidence weighs against the Veteran's claim. Thus, entitlement to a TDIU must be denied. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.