Citation Nr: 21040432 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 11-28 369 DATE: July 3, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) from March 1, 2014, but no earlier, is granted, subject to the laws and controlling regulations governing the payment of monetary awards. FINDING OF FACT From March 1, 2014, the evidence is at least evenly balanced as to whether the Veteran's service connected disabilities preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW From March 1, 2014, but no earlier, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1978 to September 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 Regional Office (RO) rating decision, which continued a 10 percent rating for service-connected intervertebral disc disease (IVDS). In March 2018, the Board found that entitlement to a TDIU was raised as part of the increased rating claim for IVDS and remanded it for additional development. In September 2020, the Board remanded the TDIU issue again to request that the Veteran complete and submit a formal TDIU application. The case has now returned to the Board. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159. The claim is also subject to the March 2018 and September 2020 Board remands. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). For remand development, the Board instructed the agency of original jurisdiction (AOJ) to obtain the following: Social Security Administration (SSA) disability records, updated VA treatment records, a lumbar spine VA examination with an occupational impairment report and a formal TDIU claim from the Veteran. The AOJ obtained an October 2018 SSA inquiry report showing that the Veteran was not receiving SSA disability benefits. Current VA treatment records include Central Alabama Health Care System records through December 2020. The February 2019 VA-contract IVDS examination report includes lumbar spine physical findings and an occupational impairment assessment. Then, the AOJ sent September and October 2020 letters to the Veteran requesting that he complete and return a formal TDIU claim (VA Form 21-8940). He did not respond. The AOJ readjudicated the claim in December 2020. The above development reflects substantial compliance with the prior remand instructions. Id. In the May 2021 brief, the representative requested that the claim be remanded to affirmatively contact the Veteran about completing the formal TDIU claim. The representative reported that he was unable to contact the Veteran to confirm his current mailing address and phone number. The listed phone number from the Veterans Benefits Management System (VBMS) profile for the Veteran was incorrect. The September 2020 Board decision and September and October 2020 TDIU development letters were mailed to the listed address for the Veteran and were not returned as undeliverable. To the extent the representative contends that the Veteran did not receive a VA Form 21-8940, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). Generally, but not always, an allegation of non-receipt by itself is insufficient to rebut the presumption of regularity. Id.; Cf. Romero v. Tran 33 Vet. App. 252 (2021). Rather, a claimant bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. Clarke v. Nicholson, 21 Vet. App. 130 (2006). Once the presumption of regularity has been rebutted, the burden shifts to VA to show that regular mailing practices were followed in mailing the document in question in accordance with applicable laws and regulations, or that the claimant actually received the notice. Crain v. Principi, 17 Vet. App. 182, 186 (2003). Applying the presumption to this case, the Board must conclude that the Veteran received the September and October 2020 letters with enclosed VA Form 21-8940. Again, these forms were sent to his address of record and were not returned as undeliverable. There is no other evidence supporting the representative's assertion of non-receipt. The presumption of regularity has not been rebutted. The representative's request for affirmative contact is noted. However, given the above development and partially favorable instant action, another remand is not warranted since the existing development substantially complies with the prior remand instructions and constitutes reasonable efforts in assistance. 38 C.F.R. § 5107(a) (claimant has the responsibility to present and support a claim for benefits); 38 C.F.R. § 3.159(c) (VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim). For the reasons stated above, appellate adjudication for this claim may proceed without prejudice to the Veteran. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). Entitlement to a TDIU TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. In this case, the TDIU claim is part of an increased rating claim for service-connected IVDS. See March 2018 Board decision and remand. The underlying increased rating claim for service-connected IVDS dates to May 29, 2009. Therefore, the relevant date of TDIU claim is May 29, 2009. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The appeal period begins one year prior to this date. 38 U.S.C. § 5110(b)(3). As explained below, probative evidence indicates that the Veteran was gainfully employed through February 2014, and further consideration of TDIU prior to March 1, 2014 is not warranted since the Veteran does not meet the threshold eligibility criteria of unemployment. 38 C.F.R. § 4.16; see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory"). From February 1, 2014, the Veteran is service connected for the following disabilities: IVDS, 20 percent prior to April 15, 2014 and 40 percent thereafter; right lower extremity sciatic radiculopathy, 40 percent prior to November 3, 2016 and 20 percent thereafter; left meniscal tear, 10 percent; right meniscal tear, 10 percent; left lower extremity radiculopathy, 20 percent prior to November 3, 2016 and 10 percent thereafter. He also had service-connection for right knee instability, 20 percent from January 15, 2016 and right lower extremity femoral radiculopathy, 10 percent from November 3, 2016. His combined ratings are 70 percent from November 26, 2013 and 80 percent or above from April 15, 2014. The Veteran's combined ratings meet the schedular TDIU rating criteria from March 1, 2014. 38 C.F.R. § 4.16(a). In analyzing TDIU claims, the central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See 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; 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 the following: The 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In July 2009, the Veteran had a VA spine examination. He complained about constant burning low back pain that radiated to his feet. He reported that he left service in 1994 and performed odd jobs until 2008. Physical findings were detailed. The clinician assessed moderate to moderately severe disability due to the low back disorder. In August 2009, the Veteran detailed his low back pain symptoms. It was hard to perform daily activities because of it. He had difficulty climbing stairs and was unable to lift objects over 10 pounds. He also had bilateral knee pain. January 2010 VA Social Work records showed that the Veteran reported being unemployed. However, he performed carpentry work when he was able. February 2010 VA psychiatry records also showed that the Veteran reported being a carpenter by trade but was currently unemployed. However, he also reported flea market work with his wife. August 2013 VA primary care records showed that the Veteran had severe chronic low back pain. On the exercise screen, the Veteran responded that he was active at work. October 2013 VA psychiatry records recounted the Veteran's education and employment history. The Veteran reported finishing 11th grade and earning a general education diploma (GED) during service. He had occupational experience as a construction laborer. He currently worked 15 hours per week but found it difficult due to chronic pain. December 2013 VA treatment records included reports about inability to perform house or yard work due to back and knee pain. April 2014 VA-contract back examination report included a functional impact assessment. The physician reported that the Veteran's service-connected back disability limited him to lifting no more than 5 pounds, walking no more than 50 feet at one time, and required frequent position changes while sitting. The Veteran reported working in construction. May 2014 VA treatment records include a note that the Veteran stated that his treating cardiologist instructed him to no longer work outside. However, the clinician was unable to locate this report. August 2014 VA treatment records showed that the Veteran reported being unable to work anymore. In an October 2014 statement, the Veteran requested full disability. He referred to his ineligibility for spine surgery. March 2015 VA Social Work records showed that the Veteran reported last working in February 2014. He currently relied on VA compensation for income. April 2015 VA mental health records included reports that the Veteran had worked off and on in construction since service. Over the past 10 years, the Veteran also worked with his wife selling items at flea markets. January 2016 VA knee examination included a functional impact assessment. The physician reported that the Veteran's service-connected bilateral knee disability prevented him from engaging in prolonged weight-bearing activities without rest and squatting activities. November 2016 VA-contract back examination report stated that the Veteran was unable to stand or walk for more than 5 minutes without a cane. He also had numbness, tingling and pain in his right lower extremity. April 2017 VA Social Work records showed that the Veteran highest educational achievement was a GED. He last worked in 2014 and was not seeking employment. February 2019 VA-contract lumbar spine examination report was completed by a nurse practitioner (NP). She reported the Veteran's lumbar spine disability had a functional impact of inability to walk, sit or stand for prolonged periods. She also determined that his back disability would restrict him to light work. For the following reasons, the Board finds that from March 1, 2014, but no earlier, a TDIU is warranted. The Veteran's highest educational attainment is a GED. He has occupational experience as a construction laborer and in carpentry. From May 29, 2009 until March 1, 2014, the Veteran engaged in gainful employment for at least a portion of this period and did not assert an inability to secure or follow substantially gainful employment. The evidence indicates that the Veteran was unemployed in 2009 and 2010, but by 2013 engaged in part time work in his usual occupation as a carpenter. Notably, the Veteran did not request a total disability rating until October 2014. VA treatment records from 2014, March 2015 and April 2017 support an account that the Veteran stopped working in 2014. The March 2015 VA Social Workers records specifically state February 2014 as the date he last worked. The evidence does not give any indication that his part time carpentry work was marginal employment. 38 C.F.R. § 4.16(a). As discussed above, he did not return the requested VA Form 21-8940 or furnish additional work history information to provide clarification on this issue. It is the Veteran's responsibility under 38 U.S.C. § 5107(a) 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 38 U.S.C. § 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). Regarding the Veteran's reportedly unemployment in 2009 and 2010, the Veteran's service-connected back, lower extremity radiculopathy and bilateral knee disabilities undoubtedly posed occupational interference with physical tasks. Nonetheless, the fact that he sought and obtained part time carpentry work following his 2009 and 2010 unemployment period is a strong indication that he did not have total physical occupational impairment due to service-connected back, lower extremity radiculopathy and bilateral knee disabilities during this period. Ray, 31 Vet. App. at 73; 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"); 38 C.F.R. § 4.16. From March 1, 2014, the evidence is clear that the Veteran no longer worked in his usual occupation as a carpenter and did not intend to resume such work. Thus, he meets the threshold economic component in Ray, supra. of unemployment. As to the non-economic TDIU component of physical capability in Ray, supra, the functional impairment from the service-connected lumbar spine disability, associated radiculopathy and bilateral knee disabilities shows occupational impairment affecting a wide variety of physical occupational tasks. It shows that the Veteran had severe low back pain and radiculopathy that was unresponsive to conservative treatment modalities. The movement limitations from back and leg pain would interfere with the Veteran's ability to perform nearly any physical occupational task, such as manual labor inherent to carpentry work or general construction labor. Ray, 31 Vet. App. at 73. Given the above, the Board finds that from March 1, 2014, the Veteran has severe physical limitations associated with service-connected lumbar spine disability, bilateral lower extremity radiculopathy, and bilateral knee disabilities. As to the non-economic mental capability in Ray, supra., the Veteran's pain attributable to his service-connected musculoskeletal disorders pose some mental impairment in completing occupational tasks associated with carpentry or construction labor. It would interfere with his ability to concentrate on work tasks. When considering the Veteran's work and education history and physical and mental impairments due to various service-connected disabilities, the evidence is at least in a state of relative equipoise as to whether from March 1, 2014, the Veteran is unable to secure and follow a substantially gainful occupation within the meaning of the applicable regulation. Geib, 733 F.3d at 1354; 38 C.F.R. § 4.16. For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran's service-connected disabilities from March 1, 2014 precluded him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from March 1, 2014 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.