Citation Nr: 22008097
Decision Date: 02/11/22	Archive Date: 02/11/22

DOCKET NO. 16-17 900
DATE: February 11, 2022

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.

FINDING OF FACT

The Veteran's service-connected disabilities alone do not prevent him from securing and following substantially gainful employment. 

CONCLUSION OF LAW

The criteria for a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the Army, on active duty from November 2022 to November 2005, and from April 2009 to March 2011, to include service in Afghanistan. 

In an April 2021 Remand, the Board found that the issue of TDIU was raised by the record and took jurisdiction as part and parcel of the Veteran's other claims. In September 2021, the issue was remanded again for further development. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, outstanding VA treatment records were associated with the record, and the Veteran was provided the opportunity to submit a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. 

TDIU

A Veteran will be entitled to TDIU upon establishing he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19.

To qualify for a total rating for compensation purposes on a schedular basis, the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a).

While the regulations do not provide a definition of "substantially gainful employment," the Court has defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). Further, the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities, alone, are of sufficient severity to produce unemployability. See Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993).

The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).

In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

Entitlement to a total disability rating based on individual employability (TDIU)

The Court of Appeals for Veterans Claims (Court) has held that a claim for an increased rating includes a claim for a total disability rating based on individual unemployability (TDIU) when the inability to work due to that disability is reasonable raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009).

In this matter, the Veteran has not explicitly raised entitlement to TDIU. However, a VA examination associated with his joint disabilities conducted in October 2020 indicated that the Veteran may no longer work as an elevator mechanic, possibly due to his service-connected disabilities. 

After a review of the evidence of record, the Board determines that TDIU is not warranted because the Veteran's service-connected disabilities do not prevent him from securing or following a substantially gainful occupation.

As an initial matter, the Board observes that in its April and September 2021 remands, it requested that the RO complete additional development in order to obtain the Veteran's work history. Such development was satisfactorily completed in April and September 2021, when the RO sent the Veteran a letter informing him that additional information regarding his work history was needed and that he must complete and return the VA Form 21-8940. To date, the Veteran has not completed and returned the form. While failure to complete the VA Form 21-8940 form is not fatal to a TDIU claim, the failure to do so deprives the Board of information as to the Veteran's employment history, educational history, training, and income information necessary to properly address a claim for entitlement to a TDIU. The Veteran's failure to complete the VA Form 21-8940 leaves the Board without the ability to request information from his prior employers as to his reason for leaving employment and without sufficient evidence to assess his disabilities, and employment and educational histories for the appeal period. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

Notwithstanding the above, the Board notes that the Veteran has met the schedular requirements for TDIU since March 19, 2018. He is service connected for: generalized anxiety disorder, rated as 70 percent disabling from March 19, 2018; cervical strain, rated as 20 percent disabling from March 19, 2011; lumbar strain, rated as noncompensable from March 19, 2011, and 20 percent from February 21, 2013; right and left shoulder impingement syndrome, each rated as noncompensable from March 19, 2011, ten percent disabling from February 21, 2013, and twenty percent from September 20, 2019; right lower radiculopathy, rated as noncompensable from February 21, 2013, ten percent disabling from September 24, 2019, and twenty percent from October 14, 2020; left ulnar radiculopathy, rated as ten percent disabling from March 19, 2011; left lower radiculopathy rated as noncompensable from February 21, 2013, and ten percent disabling from September 20, 2019; right upper radiculopathy, rated as noncompensable from February 21, 2013; and bilateral shoulder surgical scars rated as noncompensable from September 20, 2019. These percentages result in a total combined rating of 90 percent from March 19, 2018. 

While the Veteran has met the schedular requirements for TDIU, entitlement to TDIU is not warranted because his service-connected disabilities alone do not prevent him from securing or following a substantially gainful occupation. See 38 C.F.R. § 4.16(b). 

The evidence of record indicates that the Veteran has had a history of full and part-time employment, most of which involved a form of manual labor. He held various jobs servicing elevators, including as a mechanic following his first active-duty period. In addition, he became and worked as a licensed commodities broker. Following his second active-duty period in 2011, he worked as an elevator installer, which sometimes involved heavy lifting. He has an Associate's Degree in business, and while in the vocational rehabilitation program, he earned nearly 120 college credits towards a bachelor's degree in the same field. In 2017, he lost motivation to finish a degree, stating that it was too difficult to be a student and employed full-time. In a response to a medical question at his September 2018 psychiatric examination, he reported he was recently "at work", although the record doesn't indicate if it was a full-time position. It is unclear whether he is still employed, however, in a May 2020 VA treatment note it appears he was living in Puerto Rico with his wife. He stated that he keeps busy by working on the land, planting tomatoes and plantains. 

In August 2018, the Veteran submitted a private Disability Benefits Questionnaire in which the examiner concluded his psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In September 2018, he underwent a psychiatric VA examination which determined his symptoms caused occupational and social impairment due to mild or transient symptoms, decreasing work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Finally, in answering a VA mental health screen, dated May 2020, the Veteran was asked how difficult his psychiatric symptoms made it for him to work, to which he replied "[n]ot difficult at all". 

The Veteran underwent several VA examinations in September 2019, which addressed his cervical and thoracic spine, and shoulder conditions. Here, the examiner concluded that his bilateral shoulder condition prevent him from performing repetitive overhead lifting. Regarding his back and neck, these conditions made it difficult for him to change positions from sitting to standing as needed. 

In October 2020, he underwent VA examinations for his back and shoulder disabilities. This examiner opined that his back condition made it difficult for him to bend, dress, exercise, stand or walk for long periods without breaks. According to the examiner, these difficulties impacted his ability to work as an elevator mechanic. Further, his neck condition impacted his ability to drive, as he could not move his neck without pain. The examiner concluded that his shoulder condition impacted his ability to lift overhead, reach, exercise and prevented him from performing his job as an elevator mechanic. 

Finally, the Veteran underwent VA examinations for his back, neck and shoulder disabilities in September 2021. After reviewing these conditions, the examiner provided a TDIU opinion which opined that the Veteran's conditions resulted in the following restricted activities: "no repetitive cervical twisting, or bending movements, no heavy lifting, carrying, pushing or pulling handling... limited for overhead activities with the upper extremity, including lifting, or carrying occupational tasks." However, the examiner concluded that he would be able to perform "functional occupational tasks related to desk-top sedentary activities."

Overall, the record establishes that the Veteran's service-connected disabilities, both physical and psychiatric, cause some impairment in employment. However, the weight of the evidence, both lay and medical, is persuasive in showing there is a lack of such an exceptional disability picture that the Veteran would be precluded from performing sedentary or administrative work. Such work would be consistent with the type of work he performed as a licensed commodities broker. Administrative or sedentary work does not generally involve heavy lifting or prolonged standing which could cause the Veteran difficulty due to his service-connected back, neck and shoulder disabilities. Moreover, his psychiatric evaluations of record indicate his symptoms caused mild and/or occasional decreases in occupational tasks. Of note, he reported his psychiatric symptoms caused not difficulty with regards to work. Additionally, there are no opinions of record that found the Veteran unable to maintain sedentary or administrative employment as a result of his service-connected disabilities.

The Board has considered the Veteran's level of education and previous work experience. In this case, the Veteran has an Associate's Degree in business, with an additional 120 credits towards his Bachelor's Degree in business. He has experience in a sedentary position while working as a commodities broker. As such, the Board finds that the Veteran's education and experience is consistent with an ability to perform work of a semi-skilled nature, and that his service-connected neck, back, shoulder and psychiatric conditions would not preclude working in a sedentary or administrative related position.

The Board acknowledges the Veteran's statements that may indicate he believes his service-connected disabilities prevent him from gaining employment. While the Veteran is competent to testify as to the symptoms he experiences, he is similarly not competent to make a determination as to his unemployability.

The Board further notes that no VA examiner has concluded that the Veteran is precluded from gaining substantial employment. To the extent that the VA examiners indicate the Veteran would face some functional limitations, the Board finds that such pain or difficulties do not substantially affect his ability to work in an administrative or sedentary role. Regardless, the Board emphasizes that while medical opinions can be probative in a TDIU determination, the determination of unemployability is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 Fed. Cir. 2013).

As a result, the weight of the evidence is persuasively against the Veteran's TDIU claim. As such, the Veteran's TDIU claim is denied. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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.

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald