Citation Nr: 21032825 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 14-44 329 DATE: May 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's service-connected disabilities render him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to June 1984 and from February 1985 to September 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was before the Board in July 2018, June 2020, and November 2020, when it was remanded for further development. VA will grant a total disability rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 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 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 education, special training, and previous work experience, 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; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran's service-connected disabilities are as follows: posttraumatic stress disorder (PTSD), 30 percent from July 7, 2009, 50 percent from July 30, 2012, and 70 percent from February 27, 2013; posttraumatic migraine headaches, noncompensable from July 7, 2009 and 50 percent from July 10, 2015; and, posttraumatic tinnitus at 10 percent from July 7, 2009. The Veteran is in receipt of a combined 40 percent rating since July 7, 2009, 60 percent since July 30, 2012, 70 percent since February 27, 2013, and 90 percent as of July 10, 2015. Therefore, he meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU as of July 10, 2015. Thus, the next question for consideration is whether his service-connected disabilities prevent him from securing and following substantially gainful employment. By way of background, on July 30, 2012, a RO received a claim for an increased rating for PTSD. In July 2018, the Board took jurisdiction of the TDIU claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), based on the Veteran claiming he was unemployable due to his PTSD symptoms. In the July 2018 remand, the Board also directed the RO to provide the Veteran a VA Form 21-8940 (veteran's application for increased compensation based on unemployability) and to provide details regarding his employment history and education. In a July 2019 letter, the RO requested that the Veteran submit a VA Form 21-8940 and provide employment history and education. The Veteran did not respond. In a June 2020 Board remand, the RO was again directed to send the Veteran appropriate forms and a development letter regarding his employment information and evidence needed to the support the Veteran's claim. A letter and appropriate forms were sent in June 2020 pursuant to the remand instructions. The Veteran did not return the form or submit the requested information. The Board notes that the general duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). It is ultimately the Veteran's responsibility to present and support his claim. Turning to the evidence of record, a December 2012 PTSD examination notes the Veteran worked as a truck driver but reported his symptoms such as suspicion, mistrust, irritability, and anxiety around others cause him trouble maintaining work. A December 2012 headaches examination noted that the Veteran's condition did not impact his ability to work. A September 2015 headaches examination noted that the Veteran's headaches do impact his ability to work by making it difficult to concentrate. A March 2016 PTSD examination noted that the Veteran had been working full time two weeks prior but lost his job and was in the process of job hunting. The examiner noted that the Veteran's symptoms were not severe enough to cause any social or occupational impairment. In November 2020, the Board remanded the matter in order to obtain medical opinions regarding the impact of the Veteran's disabilities on his occupational functioning, updated treatment records, and to again request the Veteran submit the previously requested forms and employment information for his TDIU claim. A development letter requesting this information was sent to the Veteran in November 2020. The Veteran did not respond. A March 2021 VA medical opinion stated that the Veteran's "paranoia and agitation make employment in most traditional settings likely to be unsuccessful for any extended period of time." Furthermore, the examiner specified that, "[t]he veteran is more suited for solitary or independent work that does not include significant interaction with others." The March 2021 examination report notes the Veteran stated he continues to work as a truck driver, but not on a full-time or regular basis. The examiner further clarified that the Veteran's paranoia symptom impacts his occupational functioning as it contributes to mistrust, frustration, suspiciousness, and agitation towards others. In addition, the examiner attributed these symptoms to the Veteran's diagnosed paranoid personality disorder, as opposed to his service-connected PTSD. A March 2021 headaches examination shows the examiner stated the evidence did not show the Veteran's headache disability has an impact on his ability to function in an occupational environment. Moreover, the record does not show the Veteran's tinnitus has an impact on his ability to function in an occupational environment. Finally, although the evidence is not clear whether the Veteran is gainfully employed, records from July 2018 and February 2021 indicate the Veteran reporting working part time as a truck driver. The Board notes that it has requested information regarding his education, employment history, and earnings in development letters that enclosed the VA Form 21-8940 in July 2019, June 2020, and November 2020. The Veteran has not provided the information (nor does he assert that he did not receive the request for information) that would enable the Board to conclude that he meets the criteria for TDIU. Although the Board can piece together some of his employment information from various treatment records found in the claims file, the Veteran has not provided VA with specific and reliable information regarding his employment, education, and training, to include whether he is still gainfully employed. Under 38 U.S.C. § 5107(a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Veteran has not done so in this case. For the foregoing reasons, the preponderance of the evidence is against entitlement to TDIU. The benefit of the doubt doctrine is therefore not for application in this instance, and the claim for TDIU must be denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ariasaif, 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.