Citation Nr: 25009079 Decision Date: 07/11/25 Archive Date: 07/11/25 DOCKET NO. 16-42 183 DATE: July 11, 2025 ORDER A rating of total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. ? REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1968 to February 1971. He served in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter has previously been before the Board. In a May 2021 decision, the Board found that the matter of TDIU had been reasonably raised by the record, as part and parcel of the Veteran's claim for an increased disability rating for service-connected hepatitis C. The Board remanded the matter of TDIU for initial development. In a June 2021 letter, the AOJ requested that the Veteran complete a VA Form 21-8940 application for TDIU. In December 2023, the Board again remanded TDIU, instructing that the agency of original jurisdiction (AOJ) should provide the Veteran with appropriate application forms such as VA Form 21-8940 and 21-4192 for VA to develop his educational and employment background. Further, the Board instructed that the AOJ should refer the matter of TDIU to the Director, Compensation Service, for a determination whether the Veteran was unable to secure and follow substantially gainful occupation by reason of service-connected disabilities. In a February 2024 letter, the AOJ again provided the Veteran with VA Forms 21-8940 and 21-4192, requesting that he complete them. If he did not reply within 30 days, the AOJ instructed that VA may proceed with a decision on the claim. The record does not show that the Veteran has responded with completed forms. The AOJ additionally referred the matter to the Director, Compensation Service, who responded with a formal memorandum regarding extraschedular TDIU in December 2024. Based on the actions taken by the AOJ, the Board finds its remand instructions have been substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). For the above purpose 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, or of 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 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). Here, the Veteran is not entitled to schedular TDIU as a matter of law since he does not meet the schedular criteria for a TDIU per 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 Veteran is service connected for posttraumatic stress disorder (PTSD), which is rated 50 percent disabling throughout the appeal period, and hepatitis C, which is rated 20 percent disabling throughout the appeal period. He is also service connected for hypertension, which is assigned a non-compensable rating since February 20, 2024. His combined evaluation for compensation is 60 percent from February 14, 2011. The Veteran's complete employment history is unclear, as the Veteran has never completed a formal application for TDIU. Nonetheless, a review of the record shows that in June 2013, he reported to his congressional representative that he had to retire from work because he had too much trouble getting work done because of fatigue and being tired, due to liver disease and back problems. See June 2013 Congressionals. In March 2017, he reported at a VA mental health assessment that he had retired about three years previously from employment with a VA Medical Center, where he worked in housekeeping and in the kitchen. See April 2024 CAPRI, p. 17 (3/13/2017). Prior to that, the Veteran reported that he worked as a sanitation worker on a garbage truck, many years ago and just after his military service. See November 2016 C&P Examination. The Veteran's level of education and special training is also somewhat unclear, as the Veteran has not completed a formal application for TDIU. VA medical records indicate that he completed high school. See April 2024 CAPRI, p. 114 (12/21/2012). A high school diploma indicates he is able to perform within an occupational setting that requires the ability to read, write, and do basic math, and similarly perform typing, filing, or other administrative tasks. See Way v. McDonough, No. 23-0571, 2023 U.S. App. Vet. Claims LEXIS 1799 (U.S. Vet. App. Nov. 22, 2023); see also Bethea v. Derwinski, 2 Vet. App. 252, 25 (1992) (stating that a non-precedential decision may be cited "for any persuasiveness or reasoning it contains"). In a December 2023 brief, the Veteran's representative argued that a September 2021 VA examination for hepatitis supported the grant of TDIU because the VA examiner stated that the Veteran's liver condition impacted his ability to work. The Veteran's representative also argued, and the Board agrees, that a September 2021 VA Individual Unemployment statement was not probative, because the examiner indicated nothing except that the Veteran was retired. See December 2023 Appellate Brief; see also September 2021 Compensation and Pension (C&P) Examination. A September 2021 hepatitis examination report documented impacts to work as follows: due to hepatitis C, the Veteran experienced nausea, vomiting, fatigue, diarrhea and loss of weight about 10 pounds over a one-year period. The examiner indicated that the Veteran had lost 0-1 weeks of work in the last 12 months. See September 2021 Compensation and Pension Examination. The Board disagrees with the argument in the 2023 Appellate Brief that the hepatitis examination report indicated the Veteran was unemployable due to his hepatitis. In context, the examiner's comments summarized that hepatitis caused those specific impacts on work, but not that they precluded substantially gainful work. A November 2016 VA examination for PTSD indicated that the Veteran had a mental condition formally diagnosed, but his symptoms were not severe enough to either interfere with occupational and social functioning, nor to require continuous medication. Symptoms of PTSD included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. The examiner also commented that the Veteran had nightmares and flashbacks, outbursts of anger and avoidance of situations that reminded him of his time in the military. See November 2016 C&P Examination. An April 2024 VA examination for hypertension showed that hypertension existed, but it did not limit the Veteran's ability to work. See April 2024 C&P Examination. In February 2025, the Director, Compensation Service, issued a formal memorandum that determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment. Although there were some mental health symptoms and fatigue with digestive problems reported that might affect employment, those conditions were appropriately evaluated and compensated, and such symptoms would not rule out all types of employment. See February 2025 VA Memorandum. The Board is not bound by the Director's determination, and indeed considers the determination here solely as a procedural hurdle for consideration of extraschedular TDIU in the first instance. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran is entitled to TDIU under 38 C.F.R. § 4.16(b). After reviewing the competent and probative evidence of record, the Board finds that the Veteran's service-connected disabilities have not precluded him from obtaining or maintaining a substantially gainful occupation. In this regard, the record reflects that the Veteran's PTSD manifests with numerous symptoms adversely affecting his ability to interact with others and to establish new relationships. Further, his hepatitis C causes fatigue, nausea, vomiting, and diarrhea. His high blood pressure is not shown in the record to cause any functional impact regarding employment. The Board is mindful of the Veteran's report in 2013 that he had difficulty accomplishing work due to fatigue from hepatitis and also due to pain in his back. However, the Veteran's back condition is not service-connected, and therefore functional impairments due to that condition should not be considered for TDIU. 38 C.F.R. § 4.16(a). While the Veteran's physical limitations due to service-connected hepatitis include fatigue, the record does not show any specific limitations in physical exertion, such as lifting, standing, or manipulating objects in a job setting. Additionally, limitations due to loss of appetite, fatigue, vomiting and diarrhea are not shown to cause any inability to secure or follow substantially gainful employment. Despite the limitations due to hepatitis and the various symptoms attributed to PTSD, the Veteran could obtain work in either a standing or sitting capacity without any impact by his service-connected disabilities, such as working in his previous capacities in sanitation, to include in a kitchen or housekeeping. Thus, his physical limitations due to service-connected disabilities do not render him unable to secure or follow substantially gainful employment. The Veteran's psychiatric symptoms certainly limit his ability to work with others and would likely preclude some types of work, such as occupations that require frequently being around and/or interacting with many other people, specifically because of his limitations in establishing and maintaining effective relationships. Nonetheless, these symptoms are not shown to have impacted the Veteran's previous employment in settings with limited interpersonal interactions, and thus he is not precluded from those types of work due to his psychiatric symptoms. In reaching the above conclusion, the Board notes that "a TDIU determination does not require any analysis of the actual opportunities available in the job market," Pederson v. McDonald, 27 Vet. App. 276, 287 (2015) (quoting Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011), and the Board need not "suggest what types of employment" the Veteran is capable of obtaining. Id. The Board's finding is limited to the Veteran's ability to perform substantially gainful work, if available. In reaching the above decision, the Board also notes that additional development of this issue, including additional information regarding the Veteran's education, employment history, and employers, was sought in previous Board remands. However, the Veteran has not submitted a completed VA Form 21-8940, nor has the Veteran submitted any other evidence detailing his education and employment history. The duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board concludes that the evidence in this case is neither evenly nor approximately balanced. Rather, the competent and probative evidence persuasively weighs against a TDIU. The benefit of the doubt doctrine (38 U.S.C. § 5107(b)) is therefore not for application and entitlement to TDIU is denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hermsdorfer, J. 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.