Citation Nr: 21040550 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-54 167 DATE: July 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran has a combined disability rating of 90 percent from August 31, 2013 and 100 percent from December 3, 2019 and, has at least one service-connected disabilities evaluated as at 40 percent disabling or more; however, the evidence does not indicate that he is rendered unable to secure or maintain substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2007 to August 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at an August 2019 Board hearing. A copy of the hearing transcript has been associated with the Veteran's electronic claims file. This case has a long procedural history. Most recently, this matter was before the Board in February 2021 in which the Board found that in the November 2014 Notice of Disagreement, the Veteran reasonably raised entitlement to a TDIU under Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). The February 2021 Board decision remanded the TDIU claim to the RO to provide the Veteran with a Veterans Claims Assistance Act (VCAA) notice regarding the evidence necessary to substantiate a claim of entitlement to a TDIU, as well as an opportunity to complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and to obtain a completed VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, for all employers identified by the Veteran in the VA Form 21-8940. The development requested having been completed, the case is now appropriate for appellate review. Entitlement to a TDIU As noted above, in the February 2021 decision, the Board found that entitlement to TDIU was raised during the adjudicatory process of the underlying disabilities. As such, the Board has jurisdiction over a TDIU claim. Id. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. A TDIU may be assigned, where the schedular rating is less than total and when, in the judgment of the rating agency, 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(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). 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). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to whether the veteran has the physical ability (both exertional and nonexertional) to perform the types 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. Id. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991). An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). 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 at 363. Here, the Veteran has the following disabilities that are service-connected since August 31, 2013 unless otherwise specified: hypothyroidism assigned 60 percent disabling; mood disorder assigned 50 percent disabling; chronic fatigue syndrome assigned 40 percent disabling; migraine headaches assigned noncompensable and 30 percent disabling from December 3, 2019; thoracolumbar strain assigned 10 percent disabling and 20 percent disabling from December 3, 2019; left knee patellofemoral syndrome assigned 10 percent disabling; right knee patellofemoral syndrome assigned 10 percent disabling; partial tear left anterior talofibial ligament assigned 10 percent disabling; right ankle strain assigned 10 percent disabling; bilateral tinnitus assigned 10 percent disabling; left ear hearing loss assigned noncompensably disabling; allergic rhinitis assigned 10 percent disabling from December 3, 2019; bilateral pes planus and plantar fasciitis assigned 50 percent disabling from December 3, 2019; and chronic frontal and maxillary sinusitis assigned 30 percent disabling from December 3, 2019. Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional service-connected disabilities for a combined rating of 90 percent disabling from August 31, 2013 and 100 percent disabling from December 3, 2019. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). However, even if the rating requirements are met, TDIU may be awarded only if the evidence shows that a Veteran's impairment is so severe that it is impossible for him or her to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; Van Hoose at 363. After a review of all the evidence, the Board concludes that a TDIU is not warranted, as the weight of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful occupation due to his service-connected disabilities. There is scant information in the claims file regarding the Veteran's employment and educational history. According to a March 2013 VA examination, the Veteran reported he received a GED prior to joining the military, worked the prior two years as administrative support and did not lose any time from work. At the August 2019 Board hearing, the Veteran testified that he was working and missed work because of his migraine headaches. In November 2019, the Veteran was in receipt of a 90 percent combined disabling rating from August 2013. Pursuant to the Board's remand, in February 2021, the RO sent the Veteran and his representative a letter asking him to complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and have his former employers complete a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. To date, neither form has been completed or returned to VA. Included in the February 2021 letter, the RO detailed the requirements for substantiating a TDIU claim. No response was received. In the March 2021 Supplemental Statement of the Case (SSOC), the RO found that because the Veteran did not return a completed VA Form 21-8940 to show the Veteran's employment history, it was unable to determine the impact of service-connected disabilities on employment. Thus, the RO denied the TDIU claim because the evidence of record did not show that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. To date, the requested information necessary to substantiate a TDIU claim has not been provided. There is no evidence that the Veteran and his representative did not receive the forms or the March 2021 SSOC. The Veteran has had several months to supply VA Form 21-8940 after being sent a copy of the form by the RO. He and his representative have been notified by a March 2021 letter that the TDIU claim was denied and that a completed Form 21-8940 had not been received. As noted above, the Board acknowledges that the Veteran's service-connected disabilities impact him, as reflected by his combined 90 percent and 100 percent disability ratings, respectively. However, there is a significant lack of evidence suggesting his disabilities render him unable to secure or follow substantially a gainful occupation. The Board notes that a VA Form 21-8940 contains information on employment and education necessary for adjudication of TDIU. As the Veteran has not submitted this information, the Board does not have all necessary information regarding the status of the Veteran's current employment and education. Additionally, aside from being employed as of August 2019, there is no evidence relating to his current or previous employment status or whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran and his representative have failed to provide VA with this necessary information by failing to provide a VA Form 21-8940. The Board is not denying the case for mere failure to file a form, but, rather, there was additional information that was needed. After a thorough review of the record, the Veteran has not reported that he is unable to secure or follow a substantially gainful occupation. The duty to assist a veteran in developing evidence is not always a "one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). A veteran must cooperate when he is asked for information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Otherwise, he denies VA evidence which might have helped establish his claim. Thus, there is insufficient evidence of record about the Veteran's employment. If the Veteran feels his service-connected disabilities preclude him from securing or following a substantially gainful occupation, then he should submit a completed VA Form 21-8940 and any other information requested by VA. (continued on the next page) The evidence does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. The Veteran has provided no evidence regarding his employability, and what evidence there is does not suggest he is unable to secure or follow a substantially gainful occupation. The Board cannot determine if the Veteran is currently working based on the evidence of record. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim for TDIU is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Agarwal, 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.