Citation Nr: 21042837 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 08-03 816 DATE: July 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the rating period prior to June 19, 2015 and during the rating period from October 1, 2016 to May 28, 2019, is denied. FINDING OF FACT For the rating period prior to June 19, 2015 and during the rating period from October 1, 2016 to May 28, 2019, the Veteran's service-connected disabilities do not meet the threshold requirements for TDIU; there is no evidence of inability to perform sedentary employment due to service-connected disabilities for the rating periods prior to June 19, 2015 or from October 1, 2016 to May 28, 2019. CONCLUSION OF LAW For the rating period prior to June 19, 2015 and during the rating period from October 1, 2016 to May 28, 2019, the criteria for TDIU on a schedular and extraschedular basis are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2020). . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1968 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In the July 2007 decision, the Board, in pertinent part, denied the Veteran's claim of entitlement to an increased disability evaluation for diabetes mellitus. During the course of his appeal, the Veteran submitted evidence indicating that he lost his commercial driver's license due to his service-connected diabetes mellitus and is asserted that he is unable to perform the job for which he is trained, the Board found that a claim of entitlement to TDIU had been raised. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial rating or increased rating for a disability). In October 2012, February 2017, January 2018, and December 2019, the Board remanded this appeal for further development. A supplemental statement of the case was most recently issued in February 2021. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2019, the agency of original jurisdiction (AOJ) awarded a TDIU, effective May 29, 2019. The Veteran's claim for an increased rating for diabetes mellitus was received in May 2007. As the evidence reflects that the Veteran was unemployed during the claim period prior to May 29, 2019 and that his diabetes mellitus contributed to his unemployment, the issue of entitlement to a TDIU for the rating period prior to May 29, 2019 remains on appeal before the Board. See Harper v. Wilkie, 30 Vet. App. 345 (2018). Nevertheless, the December 2019 Board decision, in pertinent part, denied the Veteran's claim for an increased disability evaluation for diabetes mellitus. The Board notes that the claim for a TDIU during the period from June 19, 2015 through September 30, 2016 is rendered moot by the Veteran's receipt of a total (100 percent) rating and the award of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) during this period. Hence, the claim for a TDIU is characterized as shown above; only entitlement to TDIU for the rating periods prior to June 19, 2015 and from October 1, 2016 through May 28, 2019 remains for consideration. The Board acknowledges that VA treatment records were associated with the Veteran's electronic claims file following the issuance of the most recent supplemental statement of the case. However, remand for review by the AOJ in the first instance is not required. To the extent that the medical records are relevant to the issue on appeal, the medical records are duplicative of those VA treatment records considered in the February 2021 supplemental statement of the case. See 38 C.F.R. §§ 19.37(a), 20.1305(c) (2020). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). TDIU 1. Entitlement to TDIU for the rating period prior to June 19, 2019 and during the rating period from October 1, 2016 through May 28, 2019. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). For purposes of this section, disabilities of both upper or lower extremities will be considered a single disability. 38 C.F.R. § 4.16(a)(1). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). "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 v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment.' 38 C.F.R. § 4.16(a) (2020). The Veteran seeks entitlement to TDIU based on his service-connected disabilities. As previously noted, the Veteran's claim for TDIU arose out of the Veteran's claim for an increased disability rating for his service-connected diabetes mellitus. For the rating period prior to June 19, 2015, the Veteran was in receipt of a 20 percent disability evaluation for diabetes mellitus; a 10 percent disability evaluation for diabetic peripheral neuropathy of the right lower extremity; a 10 percent disability evaluation for diabetic peripheral neuropathy of the left lower extremity; a 10 percent disability evaluation for a scar of the right lower lip; a 10 percent disability evaluation for a scar of the right arm and hand; and noncompensable disability evaluations for a pigmented area of the left hand, status-post excision of the right wrist, bilateral cataracts, and erectile dysfunction. Effective October 1, 2016, a 20 percent disability evaluation was assigned for prostate cancer. The Board notes that special consideration is provided for cases involving both legs and arms, as is found here. To fully compensation the claimant for this type of disability, VA considers a "bilateral factor" under 38 C.F.R. § 4.26. The ratings for disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. 38 C.F.R. § 4.26. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor section will be treated as one disability for the purpose of arranging in order of severity and for all further combinations. With application of the bilateral factor to the Veteran's legs and arms, the Board finds that the Veteran had a combined rating of 50 percent prior to June 19, 2015 and 60 percent for the rating period from October 1, 2016 through May 28, 2019. See 38 C.F.R. § 4.25. As such, the Veteran does not meet the schedular criteria for TDIU. VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In evaluating the Veteran's unemployability, the law states that in order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is 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 Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty level threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned income." However, in the recent court decision of Ray v. Wilkie, 17-0781, (U.S. Vet. App. Mar. 14, 2019) the Court clarified that substantially gainful employment contains economic and noneconomic components. The Court explained that 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. The Court further provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Id. 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 (2015); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board points out that the Veteran has not submitted a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) and has not otherwise provided a detailed history of his employment and educational background. The Board notes that the December 2019 Board remand directed the Agency of Original Jurisdiction (AOJ) to solicit a completed VA Form 21-8940 from the Veteran detailing his work history, along with any other evidence relevant to the issue of entitlement to a TDIU. The AOJ sent the Veteran a VA Form 21-8940 for him to complete and requested that the Veteran submit any additional evidence in his possession in support of his claim for TDIU. The Veteran did not respond to the request and a completed VA Form 21-8940 has not been submitted. The Board observes that the Social Security Administration (SSA) determined the Veteran was disabled effective May 1, 2003. An April 2017 VA medical opinion found that the Veteran could perform sedentary work. The VA examiner noted that he was limited to sedentary work due to the multi-system involvement of the Veteran's service-connected diabetes mellitus and his nonservice-connected hypertension and dizziness. The VA examiner noted that the Veteran's current unemployability was not due to the Veteran's vision loss due to his service-connected cataracts, but because the Veteran did not want to work. The Board observes that the June 2007, November 2008, February 2016, and April 2017 VA examination reports reflect that none of the Veteran's service-connected disabilities, standing alone, caused functional impairment such that he was unable to work. The Board notes that the April 2017 VA diabetes mellitus examiner noted that the Veteran could not do his job as a truck driver due to licensing requirements regarding his use of insulin treatment for diabetes mellitus, but did not find any other functional impairment. Pursuant to the December 2019 Board remand, in accordance with 38 C.F.R. § 4.16(b), the AOJ requested an opinion from the Director, Compensation Service, as to whether an extraschedular evaluation should be considered with regard to the Veteran's claim of entitlement to TDIU for the rating periods prior to June 19, 2015 and from October 1, 2016 through May 28, 2019. In the request for an opinion, the AOJ's Service Center Manager detailed the findings of the June 2007 and November 2008 VA examinations, as well as referenced the February 2016 and April 2017 VA examination reports and medical evidence of record for the relevant time periods in question; she also noted that the Veteran did not comply with the requested development. The Service Center Manager noted that 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, but nonetheless found that the available evidence of record does not support the Veteran's contentions that his service-connected disabilities preclude him from substantially gainful employment. The AOJ's Service Center Manager recommended denial of TDIU on an extraschedular basis. In January 2021, the Executive Director, Compensation Service, provided her opinion as to whether extraschedular consideration of the Veteran's claim for TDIU is warranted. The Director acknowledged that the Veteran's employment and education records are incomplete, because he failed to return a VA Form 21-8940, but noted that the lay evidence of record, including the Veteran's assertions, was considered. The Director stated that greater probative weight is afforded to the objective medical evidence of record, however, and concluded that there is no evidence that the Veteran was unable to perform sedentary employment due to solely service-connected disabilities during the rating period prior to June 19, 2015 or the rating period from October 1, 2016 through May 28, 2019. The Director acknowledged that the Veteran has service-connected disabilities that have functional impact and impair prolonged activities, and pointed out that the VA Rating Schedule recognizes that the impairment makes it difficult to obtain and keep employment; 38 C.F.R. § 4.1 states that disability evaluations are to be based on impairment of earning capacity. Nonetheless, she pointed out that the current American workplace has many jobs that merely require light activity, and that technological advances have broadened employment opportunities for the disabled with reasonable accommodations that were not previously available. She also pointed out that her decision evaluates whether the Veteran, because of service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. She found that the evidence fails to support the Veteran's contention that any of his service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment prior to June 19, 2015 or from October 1, 2016 to May 29, 2019 and found that entitlement to TDIU on an extraschedular basis, under the provisions of 38 C.F.R. § 4.16(b), is denied for the rating period prior to June 19, 2015 and for the rating period from October 1, 2016 through May 28, 2019. Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities do not render him unable to obtain or sustain substantially gainful employment during the rating period prior to June 19, 2015 or during the rating period from October 1, 2016 through May 28, 2019. The evidence of record supports a finding that the Veteran, without regard to advancing age and nonservice-connected disabilities, is capable of performing the physical and mental actions required by employment. The Board acknowledges the Veteran's assertion that his diabetes mellitus may interfere with employment as a truck driver; however, the Veteran's work history, as known based on the evidence of record, does not indicate that his work experience is limited to truck driver. To this point, the Board reiterates that the Veteran has repeatedly refused to provide a completed VA Form 21-8940 detailing his educational background and occupational history, and observes that there is no evidence that demonstrates that his educational background prevents him from performing tasks in a sedentary occupation. To the extent that a completed VA Form 21-8940 could have aided the Veteran's claim, the Board notes that "[t]he duty to assist is not always a one-way street," and claimants are expected to comply with reasonable requests. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that the Veteran's service-connected disabilities for not render him unable to obtain or retain substantially gainful employment nor do they render him unemployable on a schedular or extraschedular basis. The claim of entitlement to TDIU must be denied. 38 C.F.R. § 4.16. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hallie E. Brokowsky, 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.