Citation Nr: 25005339 Decision Date: 04/21/25 Archive Date: 04/21/25 DOCKET NO. 09-26 155 DATE: April 21, 2025 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran did not return a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to support the inferred TDIU claim, or otherwise provide information detailing his occupational and income histories, as well as his education, skill, and training histories, and the evidence of record persuasively weighs against showing he is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. INTRODUCTION The Veteran served honorably on active duty in the United States Army during the Gulf War Era, from March 2003 to March 2007. He had service in the Southwest Asia theater of operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal has been developed under VA's Legacy system of review and, therefore, the statutes and regulations applicable to the Appeals Modernization Act (AMA) system of review do not apply. As the procedural history of this matter is quite extensive and has been summarized in prior Board decisions, it will not again be repeated in detail here. Notably, the Board's April 2024 decision determined that the issue of entitlement to a TDIU had been reasonably raised by the evidence of record as part and parcel of the Veteran's increased ratings claims for lumbar spine and left lower extremity radiculopathy disabilities pending at the time, and the inferred issue was remanded for necessary additional development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thereafter, the RO issued a May 2024 Supplemental Statement of the Case (SSOC) denying a TDIU. The matter returned to the Board and, in July 2024, it was again remanded for necessary additional development. Subsequently, the RO issued a December 2024 SSOC again denying a TDIU and the matter returns to the Board for further appellate review. REASONS AND BASES FOR FINDING AND CONCLUSION TDIU It is 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 (i.e., a TDIU rating). 38 C.F.R. § 4.16. A TDIU rating is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. The phrase "unable to secure and follow a substantially gainful occupation" has two components: one economic and one non-economic. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply means an occupation earning more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id.; 38 C.F.R. § 4.16(a). As for the non-economic component, "the ultimate inquiry is instead on the [Veteran's] ability to secure or follow that type of employment." See Ray, 31 Vet. App. at 73. In determining whether a TDIU rating is warranted, consideration may be given to a Veteran's history, education, skill, and training, but not his age or to any impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. Additionally, a determination is required regarding whether the Veteran has the 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(s) at issue. See Ray, 31 Vet. App. at 73. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. A determination is also required as to whether the Veteran has the mental ability to perform the activities required by the occupation(s) at issue. Id. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with co-workers, and demonstrate reliability and productivity. Id. 38 C.F.R. § 4.16(a) addresses schedular TDIU, which applies where a Veteran has a single disability rated at 60 percent or more, or two or more disabilities rated collectively at 70 percent or more and at least one of them is rated at least 40 percent or more. Id., at 63. The Board must determine whether the evidence persuasively favors the claim or if there is an approximate balance of positive and negative evidence (i.e., relative equipoise) regarding any issue material to the determination of a matter, with the Veteran prevailing in either event, or whether the evidence persuasively weighs against the claim in which case it must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3; see Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Entitlement to a TDIU is denied. As noted previously, the Board's April 2024 decision determined that the issue of entitlement to a TDIU had been reasonably raised by the evidence of record as part and parcel of the Veteran's increased ratings claims for lumbar spine and left lower extremity (LLE) radiculopathy disabilities pending at the time. Further, the Board remanded the matter for additional development, specifically, to provide the Veteran with notice of the requirements to substantiate the inferred TDIU claim, as well as a VA Form 21-8940 to complete and return. Thereafter, because the Veteran did not return a completed VA Form 21-8940 and it was unclear from the evidence of record as to when he had worked and whether he was currently employed, the Board's July 2024 decision remanded the matter again to afford him "another opportunity to submit a VA Form 21-8940." The Board also directed that his updated VA medical records (VAMRs) be obtained, and records from the Social Security Administration (SSA) be requested pertaining to the award of any disability benefits. A VA Form 21-8940 asks a Veteran which service-connected disability or disabilities prevent him from securing and following a substantially gainful occupation, and the treatment received for same. It furthers asks a Veteran to provide information about his employment, including dates when disability/ disabilities affected full-time employment, the date last worked full-time, and the date he became too disabled to work. VA Form 21-8940 also requests information regarding a Veteran's employment, educational, and training histories, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which he left his last job, and whether he has attempted to obtain employment since he became too disabled to work. All of these factors are crucial to the Board in determining whether a TDIU is warranted. In August 2024 and November 2024, the RO provided the Veteran at his address of record with a VA Form 21-8940, as well as a VA Form 21-4192, to complete and return. However, to date, the claims file does not reflect he has completed and returned such forms, and no reason for failing to provide the requested information has been received. Additionally, the RO obtained the Veteran's updated VAMRs, as well as records from the SSA. As a result, the Board finds there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Notably, while the failure to submit the requested forms is not fatal to the claim in and of itself, the failure to do so deprives the Board of specific information regarding crucial factors, such as the Veteran's employment and income histories, necessary to address a claim for TDIU. According to the Veteran's representative, "the contents of the substantive appeal and the briefs filed by or on behalf of the [Veteran]" are believed to "have introduced into record essential elements of the [Veteran's] position on the issue and emphasized pertinent VA regulatory provisions to support the case." However, as explained below, his employment, educational, and training histories are not discernable from the evidence or arguments of record. Therefore, the Board will decide this matter based upon the evidence of record as it currently stands. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran first met the combined disability rating requirement for a schedular TDIU on March 11, 2022. Specifically, his disabilities consisted of degenerative disc disease with intervertebral disc syndrome (IVDS) rated at 40 percent effective March 11, 2022, LLE sciatic nerve radiculopathy rated at 40 percent effective March 11, 2022, LLE femoral nerve radiculopathy rated at 20 percent since November 2015, left ankle inversion injury rated at 10 percent since September 2008, and LLE obturator nerve radiculopathy rated as non-compensable since March 2010. Thus, because the Veteran's combined disability rating increased to 70 percent with at least one disability rated at 40 percent effective March 11, 2022, he first met the criteria for a schedular TDIU as of that date. 38 C.F.R. § 4.16(a). In November 2021, VAMRs report the Veteran was "working tonight from 8pm to 2 am." VAMRs dated October 2022 indicate his "work status" was "machinist." At the time, the Veteran also "talked about his job serving papers, and working in the bonds business." In November 2022, VAMRs report "he was working." The Veteran was noted to be "doing well" and "working out on his own" in December 2022. VAMRs dated March 2023 report he was unemployed, last employed "Jan/ Feb 2022," but "in process of applying for a job" and denied needing employment assistance. At the time, the Veteran reported his VA compensation was "his only source of income." According to VAMRs dated August 2024, he was "employed full time" as a "bail bondsman (private eye)." Given the foregoing, the Board is unable to ascertain the specific periods in which the Veteran may have been unemployed at any time since March 11, 2022, when he first met the combined disability rating requirement for a schedular TDIU. Further, there is no evidence regarding his employment income since that time, and information from the SSA does not reflect he has been deemed disabled pursuant to their regulations. As such, the evidence does not demonstrate that the Veteran was marginally employed, employed in a protected environment, or, other than a March 2023 VAMR that is at odds with other VAMRs, unemployed after March 11, 2022. "Employment in a protected environment" within 38 C.F.R. § 4.16(a) is defined to unambiguously mean "a lower-income position that, due to the Veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." See LaBruzza v. McDonough, 37 Vet. App. 111, 123-24 (2024). Moreover, his education, skill, and training histories are not ascertainable from the claims file. The Veteran was given opportunities to provide VA with information to support the inferred contention that he is unable to secure and follow a substantially gainful occupation, but he did not cooperate with VA's efforts to develop the TDIU claim, and the Board is left with only the evidence of record as it currently stands. Prior to meeting the combined disability rating requirement for a schedular TDIU, an abbreviated November 2020 VA opinion summarily concluded that the Veteran was "unable to perform sedentary work." However, the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather, a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Notably, a January 2021 VA addendum opinion concluded the "previous response of unable to work" was "in error," and determined the Veteran "is able to engage in light work." During a March 2022 VA examination, the Veteran endorsed experiencing "severe" flare-ups of his lumbar spine condition "every other day" that last "one to two to three days" in duration, characterized as "shooting, stabbing" pain, and precipitated by "overuse, walking too far, lifting too much (more than 10 pounds)." His lumbar spine was assessed to impact his ability to perform occupational tasks, specifically, "difficulty with lifting, bending, and weight-bearing activities to include sitting or standing for 30 minutes or more." At a March 2022 VA examination of the Veteran's LLE radiculopathy condition, he endorsed "moderate pain [...] radiating into left hip down into the left lower leg down into the foot with 'numbness' in foot." LLE radiculopathy symptoms were assessed as "severe" LLE numbness, "moderate" LLE paresthesias and/or dysesthesias, "moderate" LLE constant pain (may be excruciating at times). Muscle strength and reflexes were reported as normal, and "mild" and "moderate" incomplete paralysis of multiple LLE peripherals nerves was assessed. The Veteran's LLE radiculopathies were assessed to impact his ability to perform occupational tasks, specifically, "standing 30 minutes or more, lifting, repetitious motions, bending, climbing or descending stairs, seated motions for 30 minutes or more." Another VA examination of the Veteran's lumbar spine was conducted in November 2023, at which time he endorsed "balance issues due to left leg radiculopathy" and was noted to use "a cane." He also reported being "unable to do normal/daily activities," "interact with his family," and "stand or lift," with symptoms exacerbated by "physical activity, prolonged sitting, laying supine and sleeping, lifting objects >/= 10#," and "difficulty with ascending/descending stairs." The Veteran endorsed "daily" "severe" flare-ups that "last 4-8 hours" and are "precipitated by prolonged or overuse, [and] prolonged walking, lifting >/= 10#." His symptoms were again noted to impact his ability to perform occupational tasks. However, while the Veteran's ability to perform occupational tasks is clearly impacted by his service-connected disabilities, in the absence of complete employment and educational/training histories provided by him or his representative and given the multiple reports of him continuing to work (including "full time"), the Board finds the most probative evidence persuasively weighs against showing he met the economic component required for a TDIU. See Ray, 31 Vet. App. at 73. Further, the Board finds the most probative evidence persuasively weighs against showing he met the non-economic component required for a TDIU, that is, being precluded from securing and following a substantially gainful occupation due to his lumbar spine, LLE radiculopathy, and/or left ankle disabilities, during any distinct period of time since he first met the combined disability rating requirement for a schedular TDIU on March 11, 2022. The Veteran's representative also contends that, if the Veteran "does not meet the rating criteria for TDIU [...] but his service-connected disabilities prevent him from following a substantially gainful occupation," an extra-schedular TDIU under 38 C.F.R. § 4.16(b) must be considered. If a Veteran fails to meet the rating criteria set forth in § 4.16(a), the Board should consider whether to refer the claim to the Director of the Compensation Service for extra-schedular TDIU consideration under the special provisions of § 4.16(b). While the Board can consider whether such referral is warranted, it may not grant a TDIU on an extra-schedular basis in the first instance. See Barringer v. Peake, 22 Vet. App. 242 (2008). Entitlement to an extra-schedular TDIU must be referred to the Director for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable due to service-connected disabilities. When denying an extra-schedular TDIU referral to the Director under § 4.16(b), the Board must make two determinations in its decision: (1) that a referral for extra-schedular TDIU is not warranted under the "reasonable possibility" standard set forth in Ray, and (2) that TDIU benefits are not warranted because the Veteran is not unemployable due to service-connected disabilities. 31 Vet. App. 58. In the present matter, the Veteran's combined disability rating was 20 percent effective September 30, 2008, 40 percent effective March 10, 2010, 50 percent effective November 10, 2015, and 70 percent effective March 11, 2022. Given the evidence of record, the Board finds the Veteran's symptoms and functional impairments attributable to his service-connected conditions are fully contemplated by his assigned ratings for each disability. According to a November 2008 VA examination report, "since returning to civilian life, [the Veteran] has been employed as a machine operator at the Lake City Arsenal." A May 2010 VA examination report also noted he continued to be employed there in the same capacity. VAMRs dated July 2011 reflect the Veteran continued to be employed as a machine operator. In October 2013, VAMRs indicate he reported working as a security guard at a school full time. VAMRs dated October 2016 note the Veteran works "at Ford." In September 2018, he was reported to be working. The Veteran reported that he was not currently working and "can't work full-time" in VAMRs dated August 2020. However, November 2020 VA examinations reported he "previously" worked as a "security guard" in "3/2020" and "9/2020," and was currently unemployed. As noted previously, a January 2021 VA addendum opinion determined the Veteran "is able to engage in light work." In October 2021, VAMRs indicate he was working as a "security officer" at "Arrowhead Stadium," and he was reportedly still working in November 2021. Given the foregoing, the most probative evidence of record does not tend to show a reasonable possibility that, prior to March 11, 2022 (when he first met the combined disability rating requirement for a schedular TDIU), the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment. Therefore, referral of this claim to the Director of the Compensation Service for extra-schedular consideration under the special provisions of § 4.16(b) is not warranted. The Board reminds the Veteran that VA's duty to assist is not a one-way street. See Wood, 1 Vet. App at 193; 38 U.S.C. § 5107(a) ("a claimant has the responsibility to present and support a claim for benefits"); see also Kowalski v. Nicholson, 19 Vet. App. 171 (2005) ("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"). In conclusion, because the evidence of record persuasively weighs against showing the economic and non-economic components for a TDIU have been met, there is no reasonable doubt to be resolved. See Lynch, 999 F.3d 1391. Therefore, the claim for a TDIU must be denied. (Continued on next page) The Veteran may submit the requested complete VA Form 21-8940 to have the TDIU issue readjudicated. Danette Mincey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, 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.