Case 22026687

Summary

The veteran, who served in the Army from April 1970 to April 1973, appeals the denial of entitlement to a total disability rating based on individual unemployability (TDIU). The Board of Veterans' Appeals (Board) notes that this matter has been remanded multiple times for further development, including requests for a VA Form 21-8940 (Application for Increased Compensation Based on Individual Unemployability) and Social Security Administration (SSA) records. The veteran's service-connected disabilities include lumbar spine condition (20%), bilateral lower extremity radiculopathy (20% each leg), tinnitus (10%), and bilateral hearing loss (non-compensable). The Board reviewed the criteria for TDIU, which requires the veteran's service-connected disabilities to be of sufficient severity to prevent substantially gainful employment. While a June 2019 VA examiner opined the veteran could only perform "light, sedentary type" work due to his back disability, and a September 2020 VA examiner noted gait abnormalities and pain, the Board found the record insufficient. The veteran failed to provide requested SSA records or complete the TDIU application, despite multiple AOJ requests and Board remands. The Board noted that the veteran's dementia and other non-service-connected conditions cannot be considered for TDIU. Without information on when the veteran last worked gainfully, his SSA disability basis, or his vocational skills, the Board could not grant TDIU. The claim was denied due to insufficient evidence within the veteran's control.

Rationale

Veteran failed to provide requested TDIU application (VA Form 21-8940); Veteran failed to provide requested SSA records; Information solely within veteran's control needed for adjudication

Full Decision Text

Citation Nr: 22026687
Decision Date: 05/05/22	Archive Date: 05/05/22

DOCKET NO. 16-19 554A
DATE: May 5, 2022

ORDER

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

FINDING OF FACT

The Veteran failed to return a VA Form 21-8940 (Application for Increased Compensation Based on Individual Unemployability) or provide other information supporting his TDIU claim, and has not met his burden of establishing that he is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities.

CONCLUSION OF LAW

The criteria for entitlement to a TDIU have not been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the Army from April 1970 to April 1973.  This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2016 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA).  The Board previously remanded this matter to the AOJ for further development in September 2018, December 2019, April and September 2021, and January 2022.

1. Entitlement to a TDIU

In the December 2019 decision, the Board, based on a June 2019 VA examination in which the Veteran reported retiring when it became too difficult to perform the physical tasks associated with his job, assumed jurisdiction over the issue of entitlement to a TDIU.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  After dealing with the other issues on appeal, the remand instructed the AOJ to send the Veteran a VA Form 21-8940 application for TDIU.  At the outset, the Board notes that the Veteran recently filed a claim of entitlement to service connection for dementia as secondary to his back and leg disabilities, which is still pending before the AOJ.

The Veteran's service-connected disabilities include that of the lumbar spine, rated as 20 percent disabling, radiculopathy of the bilateral lower extremity sciatic and femoral nerves, each rated as 20 percent disabling in both lower extremities, as well as tinnitus, rated as 10 percent disabling, and bilateral hearing loss rated as non-compensable.  His combined disability rating is 30 percent prior to February 8, 2016, 40 percent from then until September 21, 2020, and 80 percent thereafter.  

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Where these percentage requirements are not met, entitlement to the benefits on an extra-schedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).  

The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  The Veteran has met the criteria since for a TDIU since September 21, 2020.

The term substantially gainful employment refers to, at the minimum, the ability to earn a living wage, and is not engaged in substantially gainful employment if annual income below the poverty threshold for one person).  See Bowling v. Principi, 15 Vet. App. 1, 7 (
 work experience, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  The Veteran has met the criteria since for a TDIU since September 21, 2020.

The term substantially gainful employment refers to, at the minimum, the ability to earn a living wage, and is not engaged in substantially gainful employment if annual income below the poverty threshold for one person).  See Bowling v. Principi, 15 Vet. App. 1, 7 (2001).  In Faust v. West, 13 Vet. App. 342, 356 (2000), the Court held actual employability is shown as a matter of law by substantially gainful employment.  This means employment that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works.  Id.  There is an exception to this rule for sheltered employment.  Cantrell v. Shulkin, 28 Vet. App. 382 (2017).

In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  However, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

The January 2022 Board remand also noted that the Veteran had been in receipt of disability payments from the Social Security Administration (SSA) since January 2021 and instructed the AOJ to find and associate with the claims file any outstanding SSA records, to include any involving a disability determination or medical treatment.  In January 2022 correspondence, the SSA National Records Center informed the AOJ that there were no medical records pertaining to the Veteran.  The AOJ then sent the Veteran a February 2022 letter informing him that his SSA records were unavailable for review and requesting he submit any SSA records or other evidence in his possession that would support his TDIU claim.  The Board finds that the AOJ has substantially complied with the prior Board remand instructions and fulfilled VA's duty to assist the Veteran in this matter.  See 38 C.F.R. § 3.159(c)(2); Stegall v. West, 11 Vet. App. 268, 271 (1998).

As noted by the Board in the January 2022 remand, the AOJ mailed the Veteran a blank VA Form 21-8940 along with a request for employment information in connection with his TDIU claim in January 2020 and again in April 2021.  The remand also observed that the Veteran had not responded to these development letters or submitted the requested Form, pointing out that the duty to assist is not a one-way street and encouraging him to assist with the development of his TDIU claim.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits).  The Board observes that the Veteran has not responded to the latest AOJ request for SSA records or any additional information in support of his claim.

Based on the available record, the Board has been able to determine that the Veteran at some point retired from his prior profession as a long-haul trucker, that he has been in receipt of SSA disability since January 2013, and that he claims to have retired because his job became too physically demanding.  It appears from VA treatment records that he worked as a security guard after retiring from trucking, but it is unclear whether this employment was gainful or how long it lasted.  A June 2019 VA examiner opined that he is only able to perform "light, sedentary type" work because of the limitation on weight bearing and lifting due to his service-connected back disability.  

A September 2020 VA examiner noted the Veteran reported that prolonged standing and sitting causes increased back pain, and that he often loses his balance when walking.  The examiner described his lower extremity radiculopathy as neuralgia, "due to
 January 2013, and that he claims to have retired because his job became too physically demanding.  It appears from VA treatment records that he worked as a security guard after retiring from trucking, but it is unclear whether this employment was gainful or how long it lasted.  A June 2019 VA examiner opined that he is only able to perform "light, sedentary type" work because of the limitation on weight bearing and lifting due to his service-connected back disability.  

A September 2020 VA examiner noted the Veteran reported that prolonged standing and sitting causes increased back pain, and that he often loses his balance when walking.  The examiner described his lower extremity radiculopathy as neuralgia, "due to the nerve compression causing radiating pain down [his] legs."  October 2020 private treatment records place the Veteran at high risk for falls, noting a history of abnormal gait, muscle weakness, and ataxia (a degenerative disease of the nervous system causing impaired coordination).  VA and private treatment records indicate that the Veteran has manifested diabetic neuropathy in all four extremities throughout the appeal period in addition to his service-connected bilateral lower extremity radiculopathy.

An October 2021 VA examiner noted that due to his back disability, the Veteran manifested limited movement and was unable to stand for long periods of time.  The Veteran reported flareups that "can put me down for days," as well as mild intermittent pain, numbness and paresthesias in the bilateral lower extremities.  The examiner recorded full muscle strength as well as normal reflexes and sensory examination results in both lower extremities.  The Veteran reported occasional use of a walker for his back disorder but denied the use of other assistive devices.  The Board notes that the January 2022 Board decision found that the Veteran did not manifest incapacitating episodes of back pain requiring bed rest prescribed by a physician.

In March 2022 correspondence, the Veteran's treating physician recounted how he had been hospitalized for sepsis and a kidney injury following a recent fall.  Based on testing revealing slow brainwave activity as well as a review of the Veteran's treatment record, the physician opined that he had been suffering from progressive dementia prior to his hospitalization.  The doctor further opined that "given the likelihood of permanent brain damage from a combination of his fall, sepsis, and encephalitis in the setting of dementia, [the Veteran] will not be able to return to living or working independently."  The Board notes that although the Veteran's claim of entitlement to service connection for dementia is currently pending before the AOJ, as service-connection has not been granted, this disorder may not be considered when determining entitlement to a TDIU.

The claimant bears the burden of presenting and supporting his claim for benefits.  38 U.S.C. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  As noted above, the duty to assist is not a one-way street or a blind alley; a claimant cannot remain passive when he has relevant information solely within his control.  See Wamhoff v. Brown, 8 Vet. App. 517 (1996).  Without the Veteran's provision of additional information, the Board is unable to determine whether he has met the criteria for entitlement to a TDIU, which requires more than a generalized statement of unemployment for some period of time.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough, and a high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  Van Hoose, 4 Vet. App. at 363.  The Board is not denying the claim for mere failure to file a form.  Rather, there was additional information, to include the Veteran's education, training and past employment experience, that was needed in order to fully adjudicate the claim.  

The Board notes that the Veteran's dementia, ataxia and other disorders such as diabetes with bilateral upper extremity neuropathy cannot factor into the TDIU determination.  Further, the Board cannot assign a TDIU without specific information such as the month and year the Veteran last performed substantially gainful employment, whether his SSA disability is based solely or in part on his service-connected disabilities, or if he has the skills and prior training necessary to perform the "light, sedentary type work" described as within his capabilities by a VA examiner.  This information is not available within the claims folder and is solely within the Veteran's control.  Without it, even after resolving reasonable doubt in his favor, entitlement to a TDIU cannot be granted without resorting to speculation, and the claim must be denied.  See 38 C.F.R
ity neuropathy cannot factor into the TDIU determination.  Further, the Board cannot assign a TDIU without specific information such as the month and year the Veteran last performed substantially gainful employment, whether his SSA disability is based solely or in part on his service-connected disabilities, or if he has the skills and prior training necessary to perform the "light, sedentary type work" described as within his capabilities by a VA examiner.  This information is not available within the claims folder and is solely within the Veteran's control.  Without it, even after resolving reasonable doubt in his favor, entitlement to a TDIU cannot be granted without resorting to speculation, and the claim must be denied.  See 38 C.F.R. § 3.102.

 

 

B. G. LeMoine

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. C. Schumacher, 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.