Citation Nr: 21032109 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-40 628 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 The preponderance of the evidence does not show that the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to April 1968, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in October 2018 for further development. In an April 2020 rating decision, the Veteran was granted service connection for posttraumatic stress disorder (PTSD). As this issue has been resolved by a full grant of benefits, it is no longer in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). As the actions specified in the Board's prior remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Entitlement to a TDIU The Veteran generally contends that his service-connected disabilities prevent him from securing and following a substantially gainful occupation. The Veteran filed an informal claim for entitlement to a TDIU in June 2013. In April 2020, the RO sent the Veteran VA Form 21-8940 Application for Increased Compensation Based on Unemployability. To date, the Veteran has not returned a completed VA Form 21-8940. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered as one disability. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render her incapable of substantial gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geibv. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the conclusions of VA examiners are not dispositive. However, the observations of the examiners regarding functional impairment due to service-connected disability go to the question of physical or mental limitations that may impact the veteran's ability to obtain and maintain employment. The Veteran is currently service-connected for PTSD (rated 70 percent disabling); and for Parkinson's disease (rated 30 percent disabling). From August 14, 2012, the Veteran's service-connected PTSD is rated as 70 percent disabling. As such, the Veteran meets the criteria under 38 C.F.R. § 4.16(a) for consideration of a schedular TDIU based on one disability (PTSD) rated at least 60 percent or higher. Thus, the question before the Board is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment consistent with his educational and occupational background. The evidence of record indicates that following separation from military service, the Veteran worked full-time as a supervisor for a food processing business from October 1965 to June 26, 2000. The Veteran later worked as a security guard for 4 and a half years until 2009. An April 2018 VA social work note reflects the Veteran's Wife's report that the Veteran hadn't worked for 4 years. A November 2011 VA primary care note reflects that the Veteran had to leave his job as a shift supervisor at Heinz in 2007 due to anger issues. According to a January 2013 VA treatment record, the Veteran reported that he stays active by walking every day for one mile.. The Veteran underwent a PTSD VA examination in July 2013. The Veteran reported working at Heinz from 1965 until 2000, when he "went on disability because of [his] mental problem." The Veteran also reported that he left the job because "[he] turned 62." Overall, the VA examiner opined that the Veteran's PTSD causes him occupational or social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled my medication. The examiner noted that the results of the exam were not indicative of significant occupation or social impairment. In September 2013, the VA obtained an addendum opinion regarding the Veteran's Parkinson's disease. The examiner noted that the symptoms associated with the Veteran's then working diagnosis of "Parkinson's syndrome," were so minimal and not known to cause any level of occupational and social impairment. According to a January 2016 VA treatment record, the Veteran reported regular exercise of walking, and doing yard work. In an August 2016 correspondence, the Veteran stated that his PTSD symptoms caused him to have to leave his job after 37 years because of his "uncontrollable actions and depression." The Veteran underwent an additional PTSD VA examination in May 2019. The Veteran reported that he stopped working at Heinz because he was unable to cope with work related stress and possibly due to PTSD/depression symptoms. According to a September 2019 VA psychiatry initial evaluation note, the Veteran reported he had been busy cutting grass, with a little bit of walking, and painting for about 3-4 hours per day. According to a December 2019 VA treatment note, the Veteran reported to his treating physician that he enjoys working on his property, cruises with his wife, and enjoys visiting family. Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. In this regard, although the Veteran clearly experiences some functional impact due to his service-connected disabilities, and in fact, has been awarded a combined 80 percent disability rating in light of such impairments, his disabilities do not result in total occupational impairment at any time during the period on appeal. Moreover, none of the Veteran's VA or private providers have suggested that his service-connected disabilities, either solely or in combination with each other, precluded him from engaging in substantially gainful employment at any time during the period on appeal. In summary, the medical evidence of record does not suggest that the Veteran is unemployable due to his service-connected disabilities of Parkinson's disease, and PTSD. Furthermore, the Board finds it significant that the Veteran did not respond to the April 2020 request from VA to provide further information needed to substantiate his claim for a TDIU. The Court in Wood v. Derwinski stated that, "the duty to assist is not a one-way street." 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, 1 Vet. App. 190 (1991). There is conflicting information in the record as to when and whether the Veteran retired from his last employment, or left work on disability. Without the information from the Veteran as requested, the Board cannot make further fact finding on this matter. In making this finding, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent that service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for his disabilities already compensate the Veteran for such impairment. (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the Veteran's claim for entitlement to a TDIU must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.