Citation Nr: 21041865 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 15-38 133 DATE: July 10, 2021 ORDER A total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran's service-connected disabilities do not preclude the Veteran from securing and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from October 1967 to April 1970, to include service in the Republic of Vietnam. The Veteran was awarded the Combat Infantry Badge and a Purple Heart. In March 2020, the Board remanded this issue for additional development. The RO substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App.268 (1998). TDIU The Veteran contends that his service-connected disabilities have rendered him unable to secure 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "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 C.F.R. § § 3.340(a)(1), 4.15. A TDIU rating may be assigned, where the schedular rating is less than total, when a Veteran is unable to maintain a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated 60 percent or more; if there are two or more disabilities, at least one must be rated 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. 524; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). In exceptional circumstances, which is not the case here, when the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. §§ 4.16(b). The central inquiry in the evaluation of a grant of a TDIU 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 issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (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, 4 Vet. App. at 363. In August 2012, the Veteran filed a claim for a TDIU and submitted a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. The Veteran indicated that he had last worked full-time in May 2012 in field of sales. At this time, he reported that he left his job because of his service-connected disabilities. And, the Veteran added that he did not try to obtain employment since he became too disabled to work. The Veteran's service-connected disabilities are: 1) a left kidney disability, rated 30 percent prior to May 3, 2017, and 80 percent afterwards; 2) a heart disability, rated at 30 percent prior to May 3, 2017, and 60 percent afterwards; 3) a urethral stricture, rated at 30 percent; 4) residuals from a splenectomy, rated at 30 percent; 5) residuals from gunshot wounds, rated at 20 percent; 6) scars associated with gunshot wounds, rated at 10 percent; 7) residuals from intestinal obstruction, rated at 10 percent; 8) diabetes mellitus with background retinopathy and erectile dysfunction, rated at 10 percent; and a 9) a right kidney disability, rated at 30 percent from April 20, 2011, to May 3, 2017). In total, the Veteran's service-connected disabilities were rated at 90 percent combined rating prior to May 3, 2017, and a 100 percent combined rating afterwards. Therefore, the 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU were met from May 3, 2017. What remains to be determined is whether the Veteran's service-connected disabilities are of such nature (magnitude) and severity as to preclude his participation in substantially gainful employment consistent with his specific education and specific work experiences. In October 2012, the Veteran's former employer completed a VA Form 21-4192 Request for Employment Information in Connection with a Claim for Disability Benefits. This employer reported that the Veteran voluntarily retired from his job in April 2012 as a sales manager in purchasing. His employer also reported that the Veteran had worked for 15 yearslimited to a maximum of 40 hours per week, with minimal light lifting and no warehouse related work. In December 2013, the Veteran reported in his Notice of Disagreement (NOD) that he had to retire voluntarily due to his heart disability and kidney disabilities. He also reported that his urethral disability made employment very difficult. The Veteran provided no specific information as to either how these disabilities compelled him to retire (heart and kidney disabilities) or why his urethral stricture made employment difficult. In his NOD, the Veteran indicated that he worked at a sports store. In August 2015, VA requested copies of the Veteran's Social Security Administration (SSA) medical records though an inter-government information system. Additionally, VA sent correspondence to the Veteran confirming this inter-governmental records request. In this correspondence, VA also requested that the Veteran submit any information or evidence to support his claim for a TDIU, stipulating that if the Veteran did not submit such his claim might be decided in 30 days. This same month SSA responded to VA's request by indicating that the Veteran's medical record could not be produced because they had been destroyed. In September 2015 correspondence, VA specifically requested that the Veteran produce "any available copies of [SSA] records" in his possession. In response, the Veteran produced a copy of his SSA card and a generic SSA form concerning an increase in benefits that occurred in 2013 and an SSA Notice of Award; however, a review of the evidence of record fails to disclose that the Veteran has ever produced copies of the requested SSA medical records. Applicants for benefits, such as the Veteran, are obligated to cooperate and assist VA in developing evidence. See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). In an October 2015 statement, the Veteran's representative conveyed that the Veteran worked part-time from October to March, but only worked 15 hours per week. Specifically, the representative reported that the Veteran's service-connected disabilities "prohibited" the Veteran's maintaining full-time gainful employment. This same month, the Veteran re-conveyed his representative's claim in his substantive appeal (VA Form 9). The Veteran has been afforded multiple VA examinations. A September 2013 VA examiner reported that the Veteran's kidney disability, urethral stricture, residuals from intestinal obstruction, diabetes, and scars did not functionally impact his ability to work. This examiner reported that the Veteran's heart disability would prevent him from doing physical work, such as heavy lifting, carrying, bending, squatting, and prolonged walking. The Veteran reported that he continued to do light chores, shop, and other activities. A December 2015 VA examiner reported that the Veteran's diabetes did not impact his ability to work. A January 2016 VA examiner reported the Veteran's diabetic retinopathy did not impact his ability to work. A March 2016 VA examiner reported that the Veteran's scars did not impact his ability to work. An August 2017 VA examiner reported that the Veteran's kidney disabilities did not impact his ability to work, but the Veteran's heart disability prevented him from performing physical work. The Veteran reported that he continued to do light lawn work and golf. And, a September 2017 VA examiner reported that the Veteran's erectile dysfunction did not impact his ability to work. In a January 2020 brief, the Veteran's representative asserted that the Veteran was "unable to do the same type of work which he has done since 1972," adding that the Veteran's work load "dramatically decreased" in order to accommodate the Veteran's service-connected disabilities. As noted above, the Board remanded the Veteran's TDIU claim in March 2020 for further development, to include providing the Veteran a new VA Form 21-8940 for him to report all employment since April 2012 and a new VA Form 21-4192 for any employers since April 2012 to fill out for the Veteran to submit. In March 2020, the RO provided the required notice regarding a claim for a TDIU. The RO provided a new VA Form 21-8940 and requested that the Veteran complete, sign, and return the form. The RO also provided a new VA Form 21-4192 and requested that the Veteran supply the form to employers from April 2012 to the present. To date, a review of the evidence of record fails to disclose that the Veteran submitted a new completed copy of VA Form 21-8940. Additionally, VA has not received any additional VA Form 21-4192 from any employer since April 2012. Notably, the record does not reflect that the Veteran is either unemployed or unable to obtain or maintain substantially gainful employment. In pursuing a claim, a claimant, like the Veteran, has a responsibility to cooperate in developing all facts pertinent to the claim, VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). As the Veteran did not submit additional information requested pursuant to the Board' remand, the Board simply has no basis to evaluate the circumstances surrounding the Veteran's employment status. The mere fact that a veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough to warrant a TDIU. Van Hoose, 4 Vet. App. 361, 363. The Veteran's medical records show that in October 2012, he reported that he was only semi-retired from his job in sales and planned on working two days per week in the winter. In February 2017, he reported that he continued to work parttime two days per week. In April 2016, he reported hurting his back moving ski equipment at work. In March 2017, he reported that he had to go to work. Accordingly, the Veteran continued to work, at least part-time, since he submitted his TDIU claim. Upon review of the evidence of record, the Veteran has failed to provide guidance concerning the specificities of either his current work schedule or current work compensation. The Veteran has not submitted any competent evidence, beyond his own assertions, showing that his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. While the Veteran reported that he was unable to perform his past work and retired, the VA examiners found that the Veteran's service-connected disabilities, at most, limited the Veteran from physical work, such as heavy lifting, carrying, bending, squatting, and prolonged walking. Furthermore, the Veteran continued to work, do light chores and lawn care, shopped, and golfed. As such, the evidence does not establish that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. While the Veteran may be unable to perform his past work, his service-connected disabilities do not prevent him from obtaining or maintaining substantially gainful employment, consistent with the findings of the VA examiners, such as a job that does not require physical heavy lifting, carrying, bending, squatting, or prolonged walking. Indeed, the Veteran's combination of a supervisory work and sales and his two-year associate degree disclose that the Veteran's education and vocational endeavors are sufficient for the Veteran to obtain and maintain substantial employment, considering his specific education and professional skill set/vocational history. See Withers v. Wilkie, 30 Vet. App. 139 (2018). There are no indications in the record which reflect that the Veteran ever applied for workplace accommodations, as delineated in the Americans with Disabilities Act (ADA) or the Family Leave and Medical Act (FMLA). The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Furthermore, since May 3, 2017, the Veteran has been in receipt of a combined 100 percent rating. However, a grant of a 100 percent rating does not always render the issue of a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. Alternatively, SMC may be warranted where a TDIU is warranted for a single service-connected disability, and a veteran has a disability or disabilities that are independently ratable as 60 percent or more and which do not form the basis for the TDIU. Here, the Veteran has been assigned a combined 100 percent rating. The Veteran's kidney disability is rated at 80 percent disabling and his heart disability is rated at 60 percent disabling. However, the evidence of record makes clear that these disabilities, even when considered together, do not warrant a TDIU. Likewise, neither condition individually warrants a TDIU. Consequently, there is no potential basis for the award of SMC. Therefore, the Board finds that the Veteran's service-connected disabilities do not prevent him from performing the physical and mental acts required by employment in sales. See Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (citing Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Notably, factors to be considered are the veteran's education, employment history, and vocational attainment. See Pederson v. McDonald, 27 Vet. App. 276, 281 (2015). Accordingly, entitlement to a TDIU must be denied B.J. Komins Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.