Citation Nr: 21041250 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-11 445 DATE: July 8, 2021 ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 13, 2020. ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 13, 2020 is denied. FINDINGS OF FACT 1. The Veteran is currently employed by the United States Federal Government. 2. The Veteran has combined disability ratings of 90 percent prior to October 13, 2020 and 100 percent thereafter. 3. For the entire period on appeal, the preponderance of competent, credible, and probative evidence demonstrates that the Veteran's service-connected disabilities do not preclude him from following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1983 to October 1985, October 1990 to June 1991, August 2003 to December 2004, January 2008 to September 2008, and July 2009 to August 2010, and on active duty for training (ACDUTRA) from July 2011 to June 2012. The Veteran's DD-214 reflects service in combat in the Southwest Asia theater of operations during the Persian Gulf War. This matter is before the Board of Veterans Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Seattle Regional Office (RO) in SeaTac, Washington. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in February 2019. A copy of the hearing transcript has been associated with the claims file. The Veteran testified in part that his service-connected disabilities negatively impact his employment. See February 2019 Hearing Transcript, p. 6. This is discussed further below. Previously, a July 2019 Board Decision and Remand granted service connection for a left shoulder strain and a toenail fungus. An April 2020 Rating decision implemented these grants of service connection. The same Rating decision also granted an increased rating for cervical strain to 30 percent effective December 10, 2019 and for lumbosacral strain to 40 percent effective December 10, 2019. As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, the claims remained in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Later, a June 2020 Board Decision and Remand denied the increased rating claims related to cervical strain and lumbosacral strain. Next, following the Board's June 2020 Decision and Remand, a December 2020 rating decision granted service connection for irritable bowel syndrome. Recently, an April 2020 rating decision granted service connection for traumatic brain injury (TBI) and Basic eligibility to Dependents' Educational Assistance. As a threshold issue, the Veteran already has a combined 100 percent rating from October 13, 2020. Any consideration of a TDIU from this date is moot as he is in receipt of the maximum benefit sought. AB v. Brown, 6 Vet. App. 35, 38 (1993); Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). The current TDIU appeal concerns only the stage prior to October 13, 2020. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran was sent a November 18, 2019 VA Subsequent Development Letter. It notified him of the evidentiary requirements and forms necessary to fully develop the claim for a TDIU that had previously been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Later, on June 24, 2020, the Veteran was sent a second VA Subsequent Development Letter in part notifying him of the evidentiary requirements and forms necessary to fully develop the claim for a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). No response was received. Recently, the Veteran and his representative were sent an April 26, 2021 Supplemental Statement of the Case (SSOC) regarding the issue of entitlement to a TDIU. The Veteran was reminded of his failure to submit the necessary VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability for the TDIU claim. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 13, 2020 The Board incorporates its discussion from the sections above by reference. 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. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. 38 C.F.R. § 4.16 (a). It is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Board cannot grant extraschedular awards (including TDIU) in the first instance because the regulations require that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). The determination of whether a Veteran is unable to secure or follow a substantially gainful occupation is a legal one, to be undertaken on a case-by-case basis. See Withers v. Wilkie, 30 Vet. App. 139 (2018) (holding the meaning and relevance of the term sedentary work will have to be discerned on a case-by-case basis from the medical and lay evidence presented and considering each Veteran's education, training, and work history). The ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). The Veteran currently has combined disability ratings of 90 percent from April 24, 2014 and 100 percent from October 13, 2020. Therefore, the Veteran meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). The period in controversy is prior to October 13, 2020, when he is not already in receipt of the maximum schedular rating. Next, the Board will consider whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. By way of background, the Veteran continues to report a history of impairment completing various tasks. For example, the June 2014 VA psychiatric examination shows in part, "motor activity slowed down due to his chronic joint pain." It also reads, "socially isolates, anxious, not sleeping due to PTSD." The June 2014 VA neck examination includes, "BECAUSE OF HIS NECK CONDITION IT IS DIFFICULT FOR HIM TO PERFORM ANY ACTIVITY INVOLVING PROLONGED DRIVING, SITTING AND WORKING ON COMPUTER." (capitalization in original.) The contemporaneous VA back examination includes similar descriptions of impairment. Years later, at the February 2019 hearing, the Veteran testified in part that his service-connected disabilities affect his employment. See February 2019 Hearing Transcript, p. 6. The issue was thus raised under Rice, supra, rather than filed by the Veteran on a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran certified that his back disability had gotten worse, which led to his increased rating claims. Id. at p. 5. Months later, the December 2019 VA TBI examination shows, "memory issues with excessive daytime sleepiness." Later, in January 2020, the Veteran was afforded a battery of VA examinations that included consideration of the severity of his disabilities. First, a VA PTSD examination is of record. The VA examiner documented: The Veteran said that he continues to have the same job since 2007. Reportedly he is a maintenance inspector for the Army Reserve. He denied that he has any difficulties at work. He said that he spends time at the start of each workday prioritizing his work and focusing on what his supervisors want him to do. He noted that his memory problems do not affect his functioning at work because of his tasks are written down and he has checklists to use. In addition, a contemporaneous VA back examination is of record. The VA examiner indicated that the Veteran's back disability impacts his ability to work. The Veteran cannot lift more than 20 pounds. He cannot do jobs involving much physical labor or sitting or standing for a long time because of back rigidity. Similarly, for the cervical spine, the VA examiner indicated that the Veteran's disability impacts his ability to work. He cannot turn his head so backing up while driving is dangerous. He cannot drive for long periods of time due to neck pain. He also needs an ergonomic desk with a standing desk because he cannot look down at the computer. In an additional TBI Disability Benefits Questionnaire (DBQ), the VA examiner indicated that the Veteran has memory issues with excessive daytime sleepiness. Months later, a November 2020 VA intestinal conditions examination shows that the VA examiner indicated that the Veteran's intestinal condition impacts his ability to work. The Veteran reported bloating, cramping, urgency to defecate, weight loss, and fatigue. Ongoing VA treatment records are substantially the same. A March 9, 2021 VA treatment record shows pain in the Veteran's nose under his right eye. It also contains a 23 issue list of the Veteran's past medical history of impairment. Recently, the April 2021 rating decision granted service connection for traumatic brain injury (TBI) with an evaluation of 40 percent effective April 24, 2014. This rating corresponds to objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. He also had a level of severity of "1" for impairment in the Judgment facet. The Veteran contends that he is entitled to a total disability rating based on individual unemployability prior to October 13, 2020. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. 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 can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is competent to report what he has been told by his physician, including a recommendation that he does not sit, stand, or walk for long periods of time due to his back and neck disabilities. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran competently testified at the February 2019 hearing regarding difficulty maintaining employment due to his service-connected disabilities, after discussing a worsening of his back disability. However, as an initial matter, the Veteran has repeatedly failed to complete and submit the necessary paperwork to assist in substantiating his claim. The Veteran was sent a November 18, 2019 VA Subsequent Development Letter. Later, on June 24, 2020, the Veteran was sent another letter. Recently, the Veteran and his representative were sent an April 26, 2021 Supplemental Statement of the Case (SSOC). He has attested to his current work as an employee of the United States Federal Government. On the other hand, the primary pieces of evidence in support of the Veteran's claim are the VA examination results spanning multiple types of physical and mental disabilities. Specifically, the VA examiners described that his post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), irritable bowel syndrome (IBS), back, and neck disabilities affect his ability to work. In terms of physical labor, he cannot lift more than 20 pounds due to his back disability. Even in a sedentary capacity, he requires ergonomic accommodations with his desk. Regarding moving around, backing up in a car is difficult because of turning his head and neck pain. The Veteran also has impaired memory and judgment due to both PTSD and TBI. TBI is rated as 40 percent disabling and PTSD is rated as 50 percent disabling. Here, the Board finds that the Veteran's service connected disabilities do not preclude him from securing or following substantially gainful employment. The Veteran's reports of impairment in current employment still do not rise to the level warranting a TDIU. He is still able to hold down federal employment. He makes lists and prioritizes tasks each workday. For physical disabilities, he can request reasonable accommodations such as the ergonomic desk with a standing desk suggested by the VA examiner. The Board has fully considered the Veteran's lay reports of impairment, but they already contemplated by the current schedular disability ratings. The weight of the evidence demonstrates that while the Veteran meets the schedular criteria, he is not precluded from obtaining and retaining substantially gainful employment on account of his service connected disabilities. The Veteran has sufficient physical and social functioning to maintain federal employment. The VA examiner indicated that the Veteran could not lift more than 20 pounds due to his back disability. Nevertheless, the VA examiner's assertion does not preclude sedentary work in an office or home setting. The Veteran could utilize public transportation if driving is difficult due neck pain, and it is not clear this is an essential job duty. There is no evidence of employment in a protected environment. In short, the Veteran does not have physical and psychological impairment to such a degree that he is precluded from continued participation in the workforce. Lastly, to the extent that he has other non-service connected disabilities, VA may not consider such impairments. Even without the VA Form 21-8940, we still considered the combined impact of the Veteran's service-connected disabilities. That impairment does not rise to the level of a TDIU. Lifting and ambulating aside, the Veteran still has reasonable social functioning. The Board observes that Withers holds that the precise meaning of sedentary work in any specific case should be based on the context clues of the VA examination or medical report cited as authority. Critically, Withers declines to adopt a specific definition of the phrase "sedentary employment" for VA purposes when adjudicating entitlement to a TDIU, but instead holds, as noted above, that the Board must provide a definition on a case by case basis. Withers, supra. He can leverage his skills along with reasonable accommodations to continue his current employment. When taken holistically, this Veteran's multiple disabilities do not preclude participation in the workforce in a capacity that involves limited physical labor. Furthermore, without the Veteran having completed any paperwork, he could be excelling in his current position as a federal employee. In short, the Board finds that the weight of competent, credible, and probative evidence demonstrates that his service connected disabilities, including of a musculoskeletal and psychological nature, do not preclude him from securing or following all forms of substantially gainful employment. The Veteran is already in receipt of a total combined rating from October 13, 2020. We acknowledge impairment in physical activity, as contemplated by the current disability evaluations. The weight of the evidence is still against a finding that the Veteran has been unable to secure or follow a substantially gainful occupation due to service connected disabilities. Therefore, entitlement to a total disability rating based on individual unemployability prior to October 13, 2020 is denied. 38 C.F.R. § 4.16. (Continued on the next page.) There is no doubt to resolve, and the benefit of the doubt rule is not for application. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Bodi, 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.