Citation Nr: 21032046 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 09-12 336 DATE: May 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT 1. The Veteran failed to attend a VA examination without good cause shown in an original compensation claim. 2. At no time during the appeal period does the Veteran meet the criteria under 38 C.F.R. § 4.16(a). 3. The preponderance of the evidence is against finding that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 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 August 1989 to August 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office. In July 2008 the Veteran was granted service connection for facet joint arthritis rated 10 percent disabling, effective February 26, 2002. The Veteran appealed from the initial rating, and the present claim for TDIU, was raised in connection with his claim for increased rating pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2009, February 2011, September 2012, September 2015, and June 2018 the Board remanded the appeal for further development. The issue of entitlement to a TDIU has now been returned for adjudication. In a March 2019 letter, VA requested the Veteran complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit) in order to provide information about his employment history and education. No response was received. In March 2019 the Veteran was also notified that he would be scheduled for a VA examination to determine the current level of disability. The examination was scheduled in May 2019, but the Veteran did not attend. He provided no explanation for his failure to report and did not request that the examination be rescheduled. In an April 2021 appellate brief, the Veteran's representative confirmed that VA "informed the Veteran ahead of time that a VA exam was being scheduled for him" and that "the Veteran failed to report for reasons unknown to us." When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). This claim for TDIU is an original compensation claim, as it was raised as part of the initial rating appeal. Harper v. Wilkie, 30 Vet. App. 356, 359 (2018). Even assuming arguendo that 38 C.F.R. § 3.655(b) does not apply, the duty to assist the Veteran has been satisfied in this appeal. While failure to complete the VA Forms 21-8940 and 21-4192 is not fatal to a claim of entitlement to a TDIU in and of itself, the 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 properly address the claim. The United States Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] 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). To the extent possible, VA has attempted to assist the appellant. Accordingly, no further attempts to assist the appellant are warranted. See Olson v. Principi, 3 Vet. App. 480, 483 (1992). As the Veteran failed to provide the requested forms and to report for a relevant scheduled VA examination, the Board will adjudicate the claim based on the evidence of record. VA will grant a TDIU when the evidence shows that a veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Rather, it must remand the claim for referral to the Director of the Compensation Service. See Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). In determining whether an appellant is entitled to a TDIU, neither his nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. During the appeal period, service connection is in effect for facet joint arthritis rated 10 percent disabling from February 26, 2002 to April 5, 2009, 20 percent disabling from April 6, 2009 to January 12, 2010, 10 percent disabling from January 13, 2010 to April 6, 2010 and 20 percent disabling since April 7, 2010; and tinnitus, rated 10 percent disabling since November 13, 2009. The Veteran's combined rating was 10 percent from February 26, 2002 to April 5, 2009, 20 percent from April 6, 2009 to November 12, 2009, 30 percent from November 13, 2009 to January 12, 2010, 20 percent from January 13, 2010 to April 6, 2010, and 30 percent since April 7, 2010. Therefore, the threshold percentage requirements for an award of schedular TDIU are not met at any point during the appeal period. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board will nonetheless proceed to consider entitlement to a TDIU under 38 C.F.R. § 4.16 (b). Neither the Veteran nor the medical evidence indicate specific occupational impairments due to his tinnitus. Rather, the Veteran contends that he is unable to secure or maintain substantially gainful employment primarily due to the functional impact of his facet joint arthritis. On VA examination in June 2008, the Veteran was noted to experience low back pain without radiation to the lower extremities. He was functionally independent in daily activities such as eating, grooming, bathing, toileting, and dressing, but was unemployed at that time. In a November 2008 statement, the Veteran reported that due to the severity of his back pain, he was unable to get out of bed 4 days out of 7 and was therefore unable to maintain a job. He reported that his back hurt "every minute of every day." At his June 2009 Board hearing, the Veteran reported not having had steady employment since 1997. He stated that he had lost jobs which required heavy lifting due to his back pain and estimated that he would be limited to lifting 40 or 50 pounds. The Veteran reported using a transcutaneous electrical nerve stimulation (TENS) unit 4 times per day. In a November 2009 functional report completed by the Veteran in connection with a claim for Social Security (SSA) disability benefits, he reported difficulty with lifting, walking, stair climbing, squatting, bending, standing, completing tasks, and reaching due to his back injury. He reported being able to lift only about 25 pounds, and to walk 2 city blocks before requiring 5 minutes of rest. The Veteran reported past work as a custodian from December 1993 to August 1997, a bench technician/general warehouse worker from February 2000 to April 2002, a security guard from February 2005 to December 2005 and a supply worker from August 2007 to December 2007. The Veteran described his job responsibilities as a security guard, stating "I sat at a desk and checked the I.D.s of people coming into the place." He described the job as requiring 1 hour of walking per day, 8 hours of sitting, and no lifting. A February 2010 residual functional capacity assessment found the Veteran could occasionally lift 20 pounds, frequently lift 10 pounds, stand and/or walk about 6 hours in an 8-hour day, sit about 6 hours in an 8-hour day, and perform unlimited pushing and/or pulling. On examination, the physician noted tenderness in the lumbosacral spine at facet joints. The Veteran could perform frequent climbing of ramps/stairs, and occasionally climb ladders/ropes/scaffolds, could frequently balance, stoop, kneel, and crouch, and could occasionally crawl. He could perform unlimited reaching, handling, fingering, and feeling. A February 2010 physical summary completed by the SSA claims adjudicator found that the Veteran's level of disability would not preclude him from returning to his past relevant work, including as a security guard, providing some limited evidence against this claim. On VA examination in April 2010, the Veteran was noted to be currently unemployed and last worked in 2007. The Veteran's facet joint arthritis was noted to cause pain, decreased mobility, problems with lifting and carrying, and problems with prolonged walking, standing, climbing, bending, squatting, or repeated stair climbing. The Veteran was noted to be unable to lift more than 25 pounds repeatedly. On VA examination in November 2014, the Veteran reported worsening low back pain aggravated by prolonged sitting or standing. The examiner stated that the Veteran's facet joint arthritis was not productive of any functional impact, providing more evidence against this claim. This evidence, along with a review of all treatment records, does not support a finding that the Veteran was precluded from all forms of substantially gainful employment due solely to his service-connected disabilities. The record supports that the Veteran's facet joint arthritis caused some occupational impairment, including difficulty with heavy lifting, carrying, prolonged walking, standing, climbing, bending, squatting, and repeated stair climbing. However, the preponderance of the evidence is against finding that the functional limitations due solely to the Veteran's service-connected disabilities alone would preclude all forms of substantially gainful employment. While the evidence suggests that the Veteran is precluded from performing heavy manual labor due to his service-connected disabilities, the evidence does not show that his level of functional impairment would preclude him from performing work which would not require heavy lifting, carrying, prolonged walking, standing, climbing, bending, squatting, and repeated stair climbing. The evidence further preponderates against finding that such appropriate employment would be outside the scope of the Veteran's education and occupational experience in this case. As discussed above, SSA records note that the Veteran reported past employment as a security guard which required only 1 hour of walking, 8 hours of sitting, and no lifting. The evidence preponderates against finding that the Veteran would be precluded from maintaining gainful employment in this or similar occupations solely due to his service-connected disabilities. Thus, the preponderance of the evidence is against finding that the Veteran lacks the education or occupational experience necessary to secure gainful employment that could accommodate his functional limitations. The Board has considered the Veteran's November 2008 statement that he was unable to get out of bed 4 days out of 7 due to back pain. In the context of the record as a whole, this evidence appears to reveal an isolated instance of severe symptoms. By contrast, the June 2008 VA examiner noted no functional effects of facet joint arthritis on the Veteran's activities of daily living. Contemporaneous VA treatment records and the Veteran's June 2009 Board hearing testimony do not reveal complaints that the Veteran was unable to leave his bed. Despite the November 2008 report of being unable to get out of bed 4 days out of 7, the overall evidence of record preponderates against finding that his symptoms were of such length or duration as to warrant referral for consideration of extraschedular TDIU. Rather, the overall evidence of record throughout the appeal period shows more mild symptoms which would allow substantially gainful employment as discussed above. Based on the foregoing, the totality of the evidence preponderates against finding that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment consistent with his educational and occupational experience at any time during the period on appeal. For the foregoing reasons, referral to the Director of the Compensation Service for consideration of entitlement to an extraschedular TDIU is not warranted, and entitlement to a TDIU is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals John J. Crowley Veterans Law Judge Board of Veterans' Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Paul J. Bametzreider 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.