Case 22032901

Summary

The veteran, who served from July 1979 to September 1995, appeals the denial of entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 3, 2021. The Board previously remanded this issue for additional development, including providing the veteran with a VA Form 21-8940 and notice of how to substantiate a TDIU claim. The veteran failed to respond to the RO's attempts to contact him and did not provide requested information or good cause for his failure to respond. The Board found that the veteran's TDIU claim was part and parcel with his increased rating claim for thoracolumbar degenerative joint disease. The veteran was service-connected for multiple conditions, including PTSD (50%), low back disability (20%), and others, resulting in a 90% combined rating during the appellate period. The Board acknowledged the veteran's vocational impairment due to his disabilities but found the evidence insufficient to establish unemployability. Specifically, the veteran maintained employment during the appellate period, and the record lacked sufficient information regarding the dates and gainfulness of his employment. The Board noted that while the veteran's disabilities caused occupational impairment, the evidence did not establish that they precluded substantially gainful employment. The Board also noted that the veteran was granted a 100% rating for PTSD effective January 24, 2022, rendering the TDIU issue moot for that period. The Board denied the TDIU claim for the period on appeal due to insufficient evidence and the veteran's failure to cooperate with the development of the claim.

Rationale

Veteran failed to respond to RO requests for information regarding employment and education history.; Evidence of record indicates veteran maintained employment during the appellate period.; Record lacks sufficient information to determine if employment was gainful or if disabilities precluded substantially gainful occupation.

Full Decision Text

Citation Nr: 22032901
Decision Date: 06/06/22	Archive Date: 06/06/22

DOCKET NO. 16-31 492
DATE: June 6, 2022

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 3, 2021, is denied.

FINDING OF FACT

Prior to February 3, 2021, the evidence of record is insufficient to determine that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities.

CONCLUSION OF LAW

Prior to February 3, 2021, the criteria for entitlement to a TDIU have not been met.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.25.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1979 to September 1995. This case was previously before the Board in March 2022, when the Veteran's TDIU claim was found to be part and parcel with his initial increased rating claim for service-connected thoracolumbar degenerative joint disease with intervertebral disc syndrome (low back disability).  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board remanded the Veteran's TDIU claim to the agency of original jurisdiction (AOJ) for additional development.  

After taking further action, the AOJ denied the Veteran's TDIU claim and returned the case to the Board.  There has been at least substantial compliance with the Board's remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Duty to Assist (TDIU)

In March 2022, the Board found additional information was required before the Veteran's TDIU claim could be decided.

Based on the Board's remand, the Veteran was to be provided a VA Form 21-8940 and appropriate notice of how to substantiate a claim for a TDIU.  The Veteran was also provided the opportunity to submit any additional evidence.

The Veteran was contacted by the RO in March 2022.  There is nothing in the record indicating the Veteran was not aware of VA's attempts to contact him for the requested information.  The address and phone number for the Veteran appear to be current.  The record does not reflect any returned or undelivered mail.  In the months since, the Veteran has not submitted any correspondence explaining his failure to respond to attempts to obtain the requested information, nor has he provided any good cause for this failure.  

Additionally, the Veteran was sent a SSOC in April 2022 regarding the issue.  The April 2022 SSOC, which described his failure to respond to requests for additional information, was mailed to his last known address of record and was not returned as undeliverable.  To date, he has not reported he did not receive notice of the requested information, provided good cause as to why he did not respond to requests for the information, or otherwise requested that he be given another chance to provide the information.

Neither the Veteran nor his representative have raised any issue with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Moreover, given the presumption of regularity of the mailing of the VA notice and the fact that the Veteran has not provided a reason for his failure to provide the requested information, the Board is satisfied that the Veteran received notice of the request.  The Board will consider the claim without the benefit that this information may have
 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Moreover, given the presumption of regularity of the mailing of the VA notice and the fact that the Veteran has not provided a reason for his failure to provide the requested information, the Board is satisfied that the Veteran received notice of the request.  The Board will consider the claim without the benefit that this information may have provided.  

Entitlement to a TDIU

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a).  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

In Faust v. West, 13 Vet. App. 342 (2000), the Court held that where the claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, "actual employability" for the purposes of 38 C.F.R. § 3.343(c)(1).  The term "substantially gainful occupation" is not specifically defined for purposes of the regulations governing TDIU.  However, marginal employment is not considered substantially gainful employment.  Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person.  Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop.  38 C.F.R. § 4.16(a).

As noted in the introduction, the Veteran's TDIU claim was found to be part and parcel of his initial increased rating claim for his service-connected low back disability.  Therefore, the appellate period begins on November 15, 2012.

A TDIU is considered a lesser benefit than a 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. The receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily always moot the issue of entitlement to a TDIU, however, because a TDIU rating may still form the basis for the assignment of special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). See Bradley v. Peake, 22 Vet. App. 280 (2008).

In this case, a total (100 percent) rating for the Veteran's service-connected posttraumatic stress disorder was granted in a February 2022 rating decision, effective January 24, 2022. The Board has considered VA's duty to maximize a Veteran's benefits, including possible entitlement to special monthly compensation (SMC) in addition to a total disability rating. See Akles v. Derwinski, 1 Vet. App. 118 (1991) (observing that entitlement to SMC is an "inferred issue" in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue). Special monthly compensation at the housebound rate is payable where a Veteran has a single service-connected disability rated as 100 percent and has an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i).

In this case, for the period from January 24, 
. 118 (1991) (observing that entitlement to SMC is an "inferred issue" in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue). Special monthly compensation at the housebound rate is payable where a Veteran has a single service-connected disability rated as 100 percent and has an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i).

In this case, for the period from January 24, 2022, the Veteran is already in receipt of a SMC. Therefore, there remains no time during the period from January 24, 2022, where the schedular rating is less than total. As such, the issue of entitlement to a TDIU from January 24, 2022 is moot and need not be addressed. 

Additionally, the Veteran is in receipt of a 100 percent combined schedular rating as of February 3, 2021. A TDIU rating is contingent on the schedular rating being less than total. 38 C.F.R. § 4.16 (a). However, in Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that the issue of entitlement to TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where SMC could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114 (s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC.

In this instance, the evidence does not show that the Veteran is entitled to a TDIU based on a single disability. The Veteran has not asserted or submitted evidence to support that he is precluded from employment because of a single service-connected disability. Accordingly, entitlement to a TDIU for this period on appeal is also moot. See 38 C.F.R. § 4.16 (a).

As such, the issue on appeal has therefore been narrowed to entitlement to a TDIU, prior to February 3, 2021.

From November 15, 2012 to February 2, 2021, the Veteran was service-connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; low back disability, rated as 20 percent disabling; left lower extremity sciatic nerve radiculopathy, rated as 10 percent disabling; right shoulder bursitis, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; left hip bursitis (extension), rated as 10 percent disabling; right hip bursitis (extension), rated as 10 percent disabling; left hip bursitis (flexion), rated as 10 percent disabling; right hip bursitis (flexion), rated as 10 percent disabling; left lower extremity femoral nerve radiculopathy, rated as 10 percent disabling; right mandibular scar, rated as noncompensable; right knee arthritis, rated as 10 percent disabling; left knee arthritis, rated as 10 percent disabling, right fifth finger injury, rated as noncompensable; dry eye syndrome, rated as noncompensable; and left shoulder keloid, rated as noncompensable; for a total disability rating of 90 percent.  The Veteran has met the schedular requirements for TDIU during this period.  38 C.F.R. § 4.16(a).  

The Board finds that, based on the evidence, the Veteran is not entitled to a TDIU for the period on appeal, from November 15, 2012, to February 2, 2021. The Board acknowledges that the Veteran's service-connected disabilities are productive of many difficulties, as indicated by the disability rating assigned throughout the appellate period.  However, while the Veteran undoubtedly suffers significant impairment from his disabilities, the competent evidence of record is against a finding that he is unemployable due to his service-connected disabilities as he has maintained substantial employment during this appellate period.

The phrase "unable to secure and follow a substantially gainful occupation" in § 4.16 (b) has both an economic and a noneconomic component. Ray v. Wilkie, 31 Vet. App
 is not entitled to a TDIU for the period on appeal, from November 15, 2012, to February 2, 2021. The Board acknowledges that the Veteran's service-connected disabilities are productive of many difficulties, as indicated by the disability rating assigned throughout the appellate period.  However, while the Veteran undoubtedly suffers significant impairment from his disabilities, the competent evidence of record is against a finding that he is unemployable due to his service-connected disabilities as he has maintained substantial employment during this appellate period.

The phrase "unable to secure and follow a substantially gainful occupation" in § 4.16 (b) has both an economic and a noneconomic component. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component means an occupation earning more than marginal income outside of a protected environment. Id. The noneconomic component concerns whether the Veteran is able to "secure or follow" gainful employment. Id. In determining whether a Veteran can secure or follow a substantially gainful occupation, the Board should consider the Veteran's history, education, skill, and training; whether he or she "has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required" to work in a substantially gainful occupation, and "whether the Veteran has the mental ability to perform the activities required" to work in a substantially gainful occupation. Id. 

Regarding the economic component, the evidence reflects that the Veteran has remained employed during the appellate period.  The Veteran's September 2019 VA psychiatric report reflects that the Veteran "worked at USPS from 1997 until present in maintenance."  It was noted that he did not have any issues at work.  In a November 2019 VA psychiatric report it was noted that the Veteran was looking forward to "retirement but has no significant complaints or troubles with his employment."

In a statement received in January 2022, from the Veteran's former supervisor, the supervisor detailed that the Veteran would often come in to work tired and fatigued, which made it hard for him to function.  The Veteran had difficulty maintaining concentration and trouble remembering things and would often get emotionally overwhelmed or irritable.  He noted that the Veteran would isolate himself at work.  The former supervisor also generally noted that accommodations were given to veterans, without specifically noting what the accommodations were or if the Veteran received them.  Furthermore, it was not noted if any specific disability, or service-connected disability, contributed to any of the issues described by the supervisor.

As noted, in March 2022, the RO provided the Veteran with proper VCAA notice that informed him of the evidence and information necessary to establish entitlement to a TDIU and provided VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) to complete. Copies were also sent to the Veteran's representative.

The Veteran failed to respond to the requests for information. To date, the Veteran has not completed and returned a TDIU claim form or Request for Employment Information form.

While failure to complete the form is not fatal to a TDIU claim in and of itself, failure to do so deprives VA of accurate information as to the Veteran's employment history, educational history and training, and income information necessary to address a claim for TDIU. In the absence of the information requested from the Veteran, the Board must make a decision on the information of record.

Here, the evidence of record is insufficient to determine that the Veteran has been unable to secure or follow substantially gainfully employment. The evidence of record indicates the Veteran has been employed during at least a majority of the appeal period. Unfortunately, there is not sufficient evidence in the claims file to determine the dates of employment or whether the employment could be considered gainful. As such, while the evidence reflects that the Veteran's disabilities caused occupational impairment, the Board is unable to determine from the current record if the Veteran's disabilities render the Veteran unable to secure or follow a substantially gainful occupation during the period on appeal.

The Board does not doubt that the Veteran's service-connected disabilities cause impairing symptomatology. Importantly, however, because the Veteran did not provide the requested evidence, the Veteran's file lacks complete information about the Veteran's educational history and employment history. There is not sufficient specific evidence of when the Veteran became unemployed, and there is limited information regarding his past employment experience and educational background. There is no information provided as to whether the Veteran's employment was gainful or not for the applicable periods of time. While the RO has tried to obtain additional evidence, neither the Veteran nor his representative has provided it.

In sum, the Veteran has not cooperated with
 render the Veteran unable to secure or follow a substantially gainful occupation during the period on appeal.

The Board does not doubt that the Veteran's service-connected disabilities cause impairing symptomatology. Importantly, however, because the Veteran did not provide the requested evidence, the Veteran's file lacks complete information about the Veteran's educational history and employment history. There is not sufficient specific evidence of when the Veteran became unemployed, and there is limited information regarding his past employment experience and educational background. There is no information provided as to whether the Veteran's employment was gainful or not for the applicable periods of time. While the RO has tried to obtain additional evidence, neither the Veteran nor his representative has provided it.

In sum, the Veteran has not cooperated with VA's attempts to develop the claim, and the record that is before the Board is insufficient to determine that the Veteran is unable to secure or follow substantially gainfully employment as a result of his service-connected disabilities. The duty to assist a Veteran in the development of evidence pertinent to a claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 

(Continued on the next page)

 

The Veteran has vocational impairment due to his service-connected disabilities, as evidenced by his total rating of 90 percent throughout the appellate period.  However, the evidence does not establish that his service-connected disabilities preclude gainful employment. Thus, the claim for entitlement to a TDIU must be denied. When the evidence is not in approximate balance or nearly equal, the claim is to be denied.  See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

 

 

L ANDERSEN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Gandhi, 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.