Citation Nr: 24005682 Decision Date: 02/02/24 Archive Date: 02/02/24 DOCKET NO. 18-26 108 DATE: February 2, 2024 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The Veteran failed to complete VA Form 21-8940, and the evidence is otherwise insufficient to establish that he is unemployable as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) from an August 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2022 when it was remanded for further development. Stegall Compliance In previous the previous Board remand the Department of Veterans Affairs (VA) Regional Office (RO) was instructed to request completion of the VA Form 21-8940. The Board finds there was substantial compliance, request for completion of VA Form 21-8940 was sent to the address on requesting completion of the forms. The Board notes that the Veteran's employment history of record is inconsistent and incomplete. However, following a Board remand and request to complete the VA Form 21-8940, the Veteran has still failed to complete, and return said form. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("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."). Thus, the Board finds it is proper to render a decision with the current evidence of record. Entitlement to a TDIU TDIU 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 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 phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of a 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 the Veteran is 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). Regarding an extraschedular rating, if a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards may refer to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the veteran not meeting the percentage requirements for TDIU, the Board must evaluate whether there are circumstances in the veteran's case, apart from any nonservice-connected conditions and advancing age, which would have justified a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Board's analysis in the present case is limited to merely granting or denying the Veteran's entitlement to referral for extraschedular consideration. Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). See also Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996). The Board may adjudicate whether a referral to the Director of Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Initially, the Board notes that throughout the appellate period, the Veteran does not meet the criteria for TDIU on a schedular basis under 38 C.F.R. § 4.16(a). Accordingly, the Board's analysis is limited to whether the Veteran is entitled to referral to the Director of Compensation for extraschedular consideration. The Veteran does not specifically contend that he is unable to obtain and maintain substantially gainful employment; rather the issue was reasonably raised by the record, specifically in a December 2021 VA examination. The Veteran obtained a high school diploma, the record does not reflect that the Veteran has completed any higher education. In a December 2017 private medical treatment record, it was reported that the Veteran was self-employed. See December 2017 Private Medical Treatment Records. In both a June 2017 and May 2018 VA examinations the Veteran reported laying tile for a living. As the Veteran failed to complete and return the VA Form 21-8940, the Board is unclear as to whether the Veteran's self-employment consisted of laying tile. The Veteran also reported missing two to four weeks of work within the last twelve months as a result of his right wrist disability. See May 2018 VA Wrist Examination. It was also noted that the Veteran cannot complete work related task requiring him to carry more than ten pounds with the right wrist, have a firm grip with the right hand, or complete repetitive movements with the right wrist. Id. In a December 2021 wrist disability benefits questionnaire (DBQ), it was reported that the Veteran is unable to complete work related tasks requiring repetitive use of the right wrist such as hammering or using hand tools for more than ten minutes without rest breaks. See December 2021 DBQ. Given the foregoing, the Board finds that the Veteran is not shown to be unable to follow substantially gainful employment due to his service-connected disabilities, specifically his right wrist disability. The Veteran has reported self-employment and laying tile for a living. Additionally, the Veteran reported missing two to four weeks of work within the last twelve months in a May 2018 examination. Lastly, as previously stated the Veteran is unable to complete tasks requiring repetitive use of the right hand without rest breaks. Here, the record simply does not contain enough information for the Board to find equipoise that the Veteran's service-connected disabilities preclude substantially gainful employment. His failure to complete a VA Form 21-8940 leaves the Board without the ability to request information from his prior employers as to his dates of employment, reason for leaving, and other pertinent information. The Board acknowledges that the Veteran may have been unemployed during parts of the appeal period. The October 2022 rating decision, in fact, contains a favorable finding that the Veteran is not working. However, as noted above, unemployment and/or underemployment are not equivalent to unemployability, and considerable occupational impairment due to the Veteran's service-connected disabilities are already contemplated in the ratings currently assigned. 38 C.F.R. § 4.1 (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). Here, there is no indication in the competent and credible evidence of record that the Veteran is incapable of performing the physical and mental acts required by employment due to his service-connected disabilities. In sum, the Veteran has failed to cooperate with VA's attempts to develop the claim, and the record that is before the Board does not demonstrate that his service-connected disabilities preclude him from securing or following a substantially gainful occupation. Accordingly, the Board finds that a referral to the Director of Compensation is not warranted, and the claim is denied. See Wood, 1 Vet. App. at 193. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Osborne, 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.