Citation Nr: 21042153 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-09 948 DATE: July 12, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for a low back disability is remanded. Entitlement to an initial rating in excess of 10 percent for an inguinal hernia scar is remanded. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is remanded. FINDING OF FACT The Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1976 to March 1985. This matter comes before the Board on appeal from July 2010 and February 2014 rating decisions of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned in July 2017. In January 2018, the Board granted an initial rating of 10 percent, but no higher, for a painful inguinal hernia scar, and remanded the issues of entitlement to an initial compensable rating for pes planus and entitlement to service connection for a cervical spine disability, right hip disability, and inguinal hernia residuals other than a scar. The Veteran appealed the Board's denial of an initial rating in excess of 10 percent for an inguinal hernia scar to the United States Court of Appeals for Veterans Claims (Court). In October 2018, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of Veterans Affairs (Parties), vacated the January 2018 Board decision insofar as it denied an initial rating in excess of 10 percent for an inguinal hernia scar, and remanded that matter to the Board for compliance with the JMPR instructions. The Parties agreed that an updated examination was warranted as the Veteran reported an increase in the severity of his hernia scar. In April 2019, the Board remanded for additional development the issue of entitlement to an initial rating in excess of 10 percent for inguinal hernia scar(s), as well as the issue of entitlement to a TDIU. In September 2019, the AOJ granted service connection for cervical strain. Thus, this issue is no longer before the Board. In March 2020, the Board granted an initial rating of 30 percent, but no higher, for bilateral pes planus. The Board also granted entitlement to service connection for a right hip disability, inguinal hernia residuals other than a scar, and a bilateral foot condition other than pes planus, and thus these issues are no longer before the Board. The Board also remanded the issue of entitlement to an initial rating in excess of 10 percent for lumbar strain for issuance of a Statement of the Case (SOC). The AOJ issued the SOC and the Veteran subsequently perfected the appeal of that issue, which is now before the Board. In February 2021, the Board remanded the issues on appeal for additional development. 1. Entitlement to a TDIU is denied. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58 (2019). The Board will focus its discussion on the economic component of a TDIU, as that component is dispositive of this issue. In February 2021, the Board remanded the issue of entitlement to a TDIU. The Board directed the AOJ to secure the Veteran's Veteran Readiness and Employment (VRE) file and to provide the Veteran a copy of VA Form 21-8940 (Application for Increased Compensation Due to Individual Unemployability) and request that he complete the same. See February 2021 Board Remand at 4. The Board noted that the record showed that the Veteran had been placed in employment and advised the Veteran that if he did not assist the Board by completing a VA Form 21-8940, his claim may be denied. See id. Upon remand, the Veteran's VRE file was secured. See VRE Documents Received March 3, 2021. Moreover, the Veteran was provided with a copy of and directed to complete VA Form 21-8940. See February 2021 Development Letter. However, the Veteran did not return a completed VA Form 21-8940. Indeed, the June 2021 Informal Hearing Presentation submitted on his behalf acknowledges that there was no response to the February 2021 development letter but provides no indication of why the form was not completed. Furthermore, neither the Veteran nor his representative made any effort to identify his current employment status, the nature of that employment, or his income. Indeed, the Veteran's employment status and income are central to the issue of entitlement to a TDIU. Critically, the evidence of record shows that the Veteran is currently employed at a VA medical center, as he was placed in this position in June 2019 after completing a course of VRE rehabilitation. See June 2019 VRE Letter; see also March 2020 CAPRI (noting that Veteran is an employee of a VA medical center). While a TDIU may still be granted where employment is protected or otherwise not substantially gainful, the Veteran did not assist the Board in developing his claim. Moreover, he has not made any assertion to this effect, and the record does not show or suggest that his employment is not substantially gainful. The duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Without crucial information concerning the Veteran's employment status, the nature of that employment, and income, the Board cannot find that the Veteran meets the criteria to satisfy the economic component of entitlement to a TDIU. Thus, the issue of entitlement to a TDIU must be denied. The Board acknowledges that the Veteran was not provided with the forms necessary to secure a release of updated private treatment records. As discussed below, remand is warranted with respect to the other issues on appeal to correct this deficiency. However, there has been substantial compliance with the Board's remand directives with respect to the issue of entitlement to a TDIU, as the private treatment records would only relate to the noneconomic component of a TDIU and thus could not substantiate entitlement to a TDIU where the economic component has not been met. The Board emphasizes that the present situation is distinct from the situation in Brambley v. Principi, 17 Vet. App. 20 (2003), as in the present case the economic component of entitlement to a TDIU has not been met and the outstanding records relate to the noneconomic component of a TDIU. REASONS FOR REMAND 2. Entitlement to SMC based on loss of use of a creative organ is remanded. Regrettably, remand is necessary. In this regard, the Board directed the AOJ to secure outstanding private treatment records. See February 2021 Board Remand at 5. However, the Veteran was not provided with a copy of VA Form 21-4142 or requested to complete the same. On remand, this deficiency should be addressed and updated VA treatment records should be secured. Then, an updated medical opinion should be secured. 3. Entitlement to an initial rating in excess of 10 percent for an inguinal hernia scar is remanded. The February 2021 Board remand directed that the Veteran be afforded an examination as to his hernia residuals, to include scars. See February 2021 Board Remand at 5. However, he was only afforded an examination as to scars, and not as to hernia residuals. On remand, he should be afforded an examination where the examiner's report addresses impairment related to scars and the Veteran's hernia residuals other than scars. 4. Entitlement to an initial rating in excess of 10 percent for a low back disability is remanded. The Veteran reported that his back disability has worsened. See April 2021 VA Form 21-526EZ (Attachment Page 1). On remand, he should be afforded an updated examination as to the current severity of this disability. The matters are REMANDED for the following action: 1. Secure complete VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. It is essential that the claims file include a letter showing that the AOJ undertook this development. 3. Then schedule the Veteran for an examination as to the nature and current severity of his low back disability. The examiner should be provided with a copy of the claims file. All findings should be reported in detail. 4. Then schedule the Veteran for an examination as to the nature and severity of his hernia residuals, to include scar(s) related to the same. The examiner should complete reports discussing scars as well as hernia residuals other than scars. The examiner should be provided with a copy of the claims file. All findings should be reported in detail. The examiner should address the following: (a) Assess the severity of the Veteran's hernia residuals, including scars. (b) Please state whether it is at least as likely as not (50 percent or greater probability) there is diminished function of the Veteran's creative organ due to his residual hernia scar. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide either or both opinions without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.