Citation Nr: 22018089 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 15-03 293 DATE: March 28, 2022 ORDER Entitlement to a total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The competent and credible evidence of record persuasively establishes a finding that the service-connected disabilities do not preclude the Veteran from obtaining or maintaining gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to May 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This claim for a TDIU was originally raised in March 2021 as part of an appeal stream for claims of entitlement for an increased rating for service-connected post-traumatic stress disorder (PTSD), and entitlement to service connection for diabetes, bilateral peripheral neuropathy, gynecomastia, and hypertension. A claim for a TDIU, whether expressly or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). While the other claims were denied in that decision, the claims for hypertension and a TDIU were remanded for further development, and then again in September 2021. In a January 2021 rating decision, the RO granted service connection for hypertension with a 10 percent evaluation effective December 10, 2010. This represents a full grant of the benefits sought, and this issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The claim of entitlement to a TDIU has now returned to the Board for appellate review. Entitlement to a TDIU The Veteran alleges that they have had difficulty obtaining and maintaining gainful employment due to the service-connected PTSD. A TDIU rating may be assigned, where the schedular rating is less than total, where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The Court has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual Veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the Veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as requiring or marked by much sitting, e.g., a "sedentary desk job," the Board finds that sedentary employment is a job where the worker primarily sits down. See Webster's II New College Dictionary 999 (1999). An award of TDIU is an individualized determination, specific to a Veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During the appeal period, service connection has been in effect for the following disabilities: 1) PTSD with a 50 percent evaluation; and 2) hypertension with a 10 percent evaluation. For this appeal period, the combined disability rating is 60 percent. Accordingly, the Veteran does not meet the schedular requirements for a TDIU. Under 38 C.F.R. § 4.16(b), where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims held that the Board cannot award TDIU under 38 C.F.R. § 4.16 (b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. January 2011 VA treatment records note that the Veteran graduated high school and had attended college on and off for 4 years. Military personnel records indicate that prior to service, the Veteran worked at a men's clothing store, stocking and doing inventory. Their DD-214 notes that their military occupational specialty (MOS) was Supply Administrative Man. Personnel records also indicate that they worked as an assistant stock trader for a bank. December 2010 VA treatment records note that they had lost their job, and that they had been in and out of employment, having difficulty finding a job, but that they were rehired approximately one month before as a restaurant manager. January 2011 VA treatment records note that the Veteran had held 50 to 60 jobs since discharge, but that they had held their most recent job for the past 15 years until being let go two months prior due to a reduction in force. Although having just reported that they had just returned to their job, February 2011 VA treatment records note that the Veteran had been unemployed since last fall. March 2011 VA treatment records indicate that the Veteran had reported having 50 to 60 different jobs post service in the restaurant business, and that they had difficulty keeping a job. They reported that some were fairly good jobs, but that they would quit when they felt things were going too well because they felt that they did not deserve to have a good life after Vietnam. The Veteran stated that their most recent job was the longest at 15 years, that they had been laid off a number of times due to falling asleep, but that they were always brought back because they were friends with the boss. In a February 2012 statement from the Veteran's former spouse, they indicated that the Veteran had a big problem with sleeplessness, and was eventually fired from jobs due to tardiness, absenteeism, and falling asleep at work. They stated that the Veteran had held over 20 jobs in 14 years of marriage. During a March 2021 VA psychiatric examination, the Veteran reported that they had been unemployed for the last 2 months; however, additional VA treatment records from that same day indicate that they Veteran was employed. April 2011 VA treatment records indicate that the Veteran had retired a couple months prior. Additional VA treatment records continue to note that the Veteran was employed at the time as a restaurant manager, including in June, July, and September 2011. During a February 2012 VA spinal examination, the Veteran reported that they had been unemployed since late 2011 due to the business being bought out. July 2014 and December 2014 VA treatment records indicate that the Veteran was employed as a restaurant manager. February 2016 VA treatment records note that the Veteran had originally been scheduled to have a hernia repaired, but that they had been unable to do so since getting a new job. The Veteran did not clarify what sort of work they were performing at that time. May 2018 VA treatment records indicated that the Veteran's employment status was "computers." During a January 2020 VA psychiatric examination, the Veteran reported that they had worked at a restaurant part time from 2011 to 2012, occasionally going back to work as needed as a cashier. They also stated that they had worked from home doing some computer work for a company for one year in 2008, although the Board notes that it is likely that this was a mistype by the examiner given the Veteran's reports of previously working in the restaurant industry in the 15 years prior to 2011, and that they had reported in 2018 working with computers. The Veteran stated that they relied on their cousin for support and assistance with their finances, but did not elaborate any further. January 2020 and August 2021 VA treatment records continue to report that the Veteran was employed as a restaurant manager at the time. Turning to the service-connected disabilities, as noted above, the Veteran and their former spouse have at various times asserted that the PTSD has caused sleeplessness, which in turn has affected their job performance. The March 2011 VA examination found that the service-connected PTSD was manifest by occupational and social impairment with reduced reliability and productivity due to symptoms such as depressed mood, feelings of guilt, and sleep disturbance resulting in fatigue during the day. The January 2020 VA examination also found that the PTSD was manifest by occupational and social impairment with reduced reliability and productivity. During the appeal period, the Veteran has not asserted that the service-connected hypertension has affected their employability, and the record does not suggest otherwise. VA examinations in January 2020 and October 2021 found that the hypertension had no functional impact on the Veteran's ability to work. Based on a review of the aforementioned evidence, the Board finds that a referral to VA's Director, Compensation Service for extraschedular consideration is not warranted. 38 C.F.R. § 4.16(b). Taken as a whole, the Veteran's symptoms do not suggest they have been unable to obtain and maintain gainful employment. Given the Veteran's education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers, the Board does not consider this level of impairment as one that would preclude employment. The Board considered the Veteran's lay statements that the PTSD causes sleeplessness, which interferes with their employment, and the Board acknowledges the limitations of the disability. However, after review of the evidence of record the Board finds that the Veteran's functional limitations would not preclude employment. The Board recognizes that the service-connected PTSD had a notable and significant effect on his employment capabilities for the period on appeal. To the extent that the Veteran's service-connected disabilities hindered their ability to obtain or maintain gainful employment, the rating schedule already contemplates industrial impairment. Stated another way, evidence of occupational limitations is present in every case in which an evaluation has been assigned for a service-connected disability. See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages "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" and "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"); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). ("A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment."). If the Board were to accept the argument that evidence of occupational limitations due to service-connected disabilities necessarily constitutes evidence of unemployability, then entitlement to TDIU would be reasonably raised and warranted in every case where a Veteran challenged the assigned evaluation. Moreover, the Veteran's employment status is unclear during the appeal period. Although they have reported difficulty obtaining and retaining employment, including periods of unemployment, these reports have been inconsistent. While on remand, in April 2021, the Veteran was sent a letter requesting that they complete VA Form 21-8940 in support of a claim for TDIU. This form requests information regarding the Veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the Veteran left their last job, and whether the Veteran has attempted to obtain employment since they became too disabled to work. The Veteran did not return this form. Moreover, there is evidence to suggest that the Veteran maintained employment through 2021. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran must cooperate by responding to the RO's request for information regarding their employment status in the development of the claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary). Certainly, the ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran has indicated that they have been let go from their job at the restaurant several times, and only brought back because they are friends with their boss, which could suggest that this might be a scenario where marginal employment could apply. However, there is no indication that this was the same scenario when they worked doing computer work from home in 2018. Again, the Veteran has not submitted the requested information. The absence of this information frustrates the Board's ability to find that this is such an exceptional case where an extraschedular basis would be warranted. Accordingly, the claim of entitlement to a TDIU is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the evidence is persuasively against the claim and the positive and negative evidence is not in approximate balance, the doctrine is not for application. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *10 (Fed. Cir. Dec. 17, 2021). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.