Citation Nr: 1334964 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-36 843A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a rating in excess of 60 percent for asthma, with sleep apnea and asthmatic bronchitis. 2. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Marc Whitehead & Associates WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from May 1995 to October 1997. This appeal comes before the Board of Veterans' Appeals (Board) from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In a March 2011 decision, the Board determined that the termination of a separate compensable rating for sleep apnea was appropriate, denied a rating greater than 60 percent for asthma with sleep apnea, and remanded the issue of entitlement to a total disability rating based on individual unemployability. The Veteran appealed the March 2011 Board decision with respect to the issue of a rating in excess of 60 percent for asthma, with sleep apnea, to the United States Court of Appeals for Veterans Claims (Court); the Veteran did not appeal the Board's determination that the termination of the separate rating was appropriate. In July 2012, the Court issued an Order, granting a Joint Motion for Remand (Joint Motion), with respect to the issue of an increased rating for asthma with sleep apnea and remanded the case to the Board for action consistent with the Joint Motion. In May 2013, the Board vacated the March 2011 Board decision and remanded the case for additional development. In July 2013, VA granted a claim of service connection for asthmatic bronchitis. Pursuant to 38 C.F.R. § 4.96(a), the issue has been recharacterized as a claim for an increased rating for asthma, with sleep apnea and asthmatic bronchitis. FINDINGS OF FACT 1. The service-connected asthma with sleep apnea and asthmatic bronchitis is predominantly manifested by asthma; the asthma is not manifested by forced expiratory volume in 1 second(FEV1) less than 40 percent predicted, FEV1/forced vital capacity (FVC) less than 40 percent, daily use of high-dose oral or parenteral corticosteroids, or daily use of immunosuppressive medication. 2. The Veteran had substantially gainful employment throughout the appellate period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for asthma with sleep apnea and asthmatic bronchitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2013). 2. The criteria for a total disability rating for compensation purposes based on individual unemployability have not been met. 38 U.S.C.A. § 1155; (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). December 2006 and August 2012 letters advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The letters provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. The Veteran's claims were subsequently readjudicated in a July 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Accordingly, the RO effectively satisfied the notice requirements with respect to the issues on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained VA treatment records and VA examination reports, assisted the Veteran in obtaining evidence, and afforded him the opportunity to present testimony, statements, and evidence. All known, identified, and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA has afforded the Veteran VA examinations with respect to his claims for increased ratings and obtained opinions as to whether the Veteran is unemployable due to service-connected disabilities. The medical examinations and associated findings and opinions are adequate, as each was based upon a complete review of the evidence of record, consideration of the Veteran's statements, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The case was previously before the Board in March 2011 and May 2013, when it was remanded for development of the claim for a total disability rating based on individual unemployability, request of records, service, and medical examination with opinions. The requested development was completed. Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the evaluation is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Asthma with Sleep Apnea and Asthmatic Bronchitis In November 2006, the Veteran filed a claim for an increased rating for his service-connected asthma. During the pendency of the appeal, in rating decisions issued in January 2008 and July 2013, service connection was awarded for sleep apnea and asthmatic bronchitis. The Veteran contends that an increased rating is warranted because his asthma requires daily use of corticosteroids. Respiratory disorders are rated under 38 C.F.R. § 4.97, Diagnostic Codes 6600 through 6817 and 6822 through 6847. Pursuant to 38 C.F.R. § 4.96(a), ratings under those diagnostic codes will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). The evidence clearly documents that the predominant disability is the Veteran's asthma. Diagnostic Code 6602, which rates bronchial asthma, provides a 60 percent evaluation when pulmonary function tests (PFTs) reveal FEV1 from 40 to 55 percent predicted; PFTs reveal FEV1/FVC from 40 to 55 percent; the asthma requires at least monthly visits to a physician for care of exacerbations; or the a asthma requires intermittent courses of oral or parenteral systemic corticosteroids. A 100 percent evaluation is assigned when FEV1 is less than 40-percent predicted; FEV1/FVC is less than 40 percent; there is more than one attack per week with episodes of respiratory failure; or the asthma requires daily use of oral or parenteral systemic high dose corticosteroids or immuno-suppressive medications for control. PFTs must be conducted post-drug or post-medication or post-inhalation therapy. See 61 Fed. Reg. 46720, 46723 (Sept. 5. 1996); Cf. 38 C.F.R. § 4.96(d) (2013) (limiting application to diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845). VA and private treatment records reflect persistent treatment for sleep apnea and asthma and occasional treatment for bronchitis. The records indicate that the sleep apnea is treated with a continuous positive airway pressure (CPAP) machine and the asthma has been treated with medications including Xolair, Advair, high-dose corticosteroid inhalers, and systemic oral corticosteroids, including bursts of high-dose oral corticosteroids. The records do not reflect evidence of daily use of systemic oral corticosteroids until August 2010, when the Veteran was prescribed daily Prednisone, initially at 5 milligram (mg) daily and later at 10 mg daily; prior to that date, the Veteran is only prescribed intermittent doses. The records consistently document negative histories as to intubation or hospitalization. The record includes the results of PFTs in May 2006; January and August 2008; September 2009; October and December 2010; January, February, and June 2011; and January, April, and September 2012. May 2006 PFTs revealed a FEV1 of 82 percent predicted and FEV1/FVC of 75 percent. January 2008 PFTs revealed a pre-bronchodilator FEV1 of 83 percent predicted and a FEV1/FVC of 81 percent. August 2008 PFTs revealed a pre-bronchodilator FEV1 of 87 percent and pre-bronchodilator FEV1/FVC of 81 percent. September 2009 PFTs revealed a post-bronchodilator FEV1 of 96 percent predicted and FEV1/FVC of 78 percent. October 2010 PFTs showed a FEV1 of 87 percent predicted and FEV1/FVC of 74 percent. December 2010 PFTs showed a post-bronchodilator FEV1 of 73 percent predicted and a FEV1/FVC of 85 percent. January 2011 PFTs showed FEV1s of 60 and 65 percent predicted and FEV1/FVCs of 86 and 88 percent. February 2011 PFTs showed FEV1 ranging from 66 to 76 percent predicted and FEV1/FVC ranging from 83 to 87 percent. May 2011 PFTs showed FEV1 ranging from 52 to 68 percent predicted and FEV1/FVC ranging from 78 to 87 percent. June 2011 PFTs showed FEV1 ranging from 56 to 66 percent predicted and FEV1/FVC ranging from 78 to 87 percent. January 2012 PFTs showed FEV1 ranging from 65 to 70 percent predicted and FEV1/FVC ranging from 80 to 82 percent. April 2012 PFTs showed FEV1s of 65 and 67 percent predicted and FEV1/FVCs of 88 and 92 percent. September 2012 PFTs show FEV1s of 67 and 68 percent predicted and FEV1/FVCs of 91 and 92 percent. A May 2007 VA examination report notes that the Veteran had a productive cough, sputum, and anorexia. There was no hemoptysis. The Veteran reported daily wheezing which sometimes impaired his functioning at work. He indicated that he brought his nebulizer machine to work and he used it almost daily. He reported taking off up eight days a month due to the severity of his dyspnea and reported almost daily asthma attacks, despite the use of inhalers. The record notes that the Veteran was prescribed Foradil, Advair, Singulair, nebulizer solution, and Albuterol inhaler. For each exacerbation, he was given oral prednisone for five to seven days. He added that it took him two days to be fully functional after an exacerbation. He reported weight gain due to the medication. The Veteran estimated having three severe attacks each month (where he goes to the emergency room for treatment) and reported seeing his primary care doctor for urgent treatments four times a month. Physical examination revealed no cor pulmonale, right ventricular hypertrophy, or pulmonary hypertension. PFTs were normal, with FEV1 of 77 percent predicted value and FEV1/FVC (2.54/3.4) of 75 percent. A November 2007 VA examination record reflects the Veteran's history of sleep apnea, improved with use of a CPAP. The Veteran reported symptoms including daytime hypersomnolence, snoring, and sleep disruption. The record notes that the Veteran did not have a history of respiratory failure and that he was employed full-time, though he reported missing seven weeks during the previous twelve months. The examiner estimated that the sleep apnea had significant effect on occupational activities due to increased absenteeism, decreased concentration, lack of stamina, memory loss, and weakness/fatigue. A June 2008 VA medical statement notes that the Veteran had asthma which had resulted in episodes of respiratory difficulty like shortness of breath and wheezing almost four times a week. The statement adds that the asthma required daily use of corticosteroid oral and inhalation medication like Advair, methylprednisolone, Albuterol inhalation, Albuterol, and Atrovent solution as well as monthly injections of Xolair. The record notes that the Veteran also had exacerbations requiring steroid injections for relief. The record adds that the Veteran's medical condition affects the Veteran's employment and required him to take off several days to recover. An August 2008 examination record reflects the Veteran's history of at least three asthma attacks a week. He reported that his quality of life was impaired by his asthma, to include his sex life and ability to participate in recreational activities. The Veteran added that he saw his physician on a monthly basis. He denied hospitalization or intubation. He reported that he had to take Prednisone "from time to time." The record notes that the Veteran was prescribed Xolair, Omeprazole, Albuterol, Advair, Zyrtec, Singulair, and Medrol Dosepack. After examination, poorly controlled asthma was diagnosed. PFTs revealed a post-bronchodilator FEV1 of 87 percent predicted and FEV1/FVC of 79 percent. The examining physician explained that the Veteran continued to "suffer from severe asthma" and that the Veteran was "diagnosed as having moderate persistent asthma." The physician added that the Veteran stated that he took Medrol Dosepack between three to four times a year. The physician opined that the Veteran's quality of life was affected in many ways; specifically, the Veteran became short of breath on exertion and missed work. A November 2009 VA respiratory examination record reflects the Veteran's history of worsening asthma. He described three or more asthma attacks each week with several clinical visits for exacerbations each year. He also reported symptoms including anorexia, chest pain, productive cough, wheezing, and dyspnea. The record notes that the Veteran had daily use of inhaled anti-inflammatory and intermittent inhaled bronchodilator. He also had intermittent, i.e. four or more, use of oral steroids, lasting one to two weeks each time; intermittent use of parenteral steroids; and use of antibiotics. There was no history of hospitalization, surgery, cor pulmonale, pulmonary hypertension, right ventricular hypertrophy, or respiratory failure. He reported 45 days or more of incapacitation in the previous 12 months. PFTs showed post-bronchodilator FEV1s of 79 percent predicted and a FEV1/FVC of 78 percent. The Veteran was diagnosed with asthma with sleep apnea which had significant effects on occupational functioning due to decreased concentration and increased absenteeism. A November 2009 VA sleep apnea examination reflects the Veteran's history of snoring, episodes of apnea when he does not use the CPAP, and daytime hypersomnolence. He also reported being unable to concentrate during the day. He reported that using the CPAP machine sometimes triggered his asthma. He denied respiratory failure. He reported working part-time as a nurse. He estimated that he had lost five weeks of work in the previous year due to fatigue and sleepiness. The examiner estimated that the asthma with sleep apnea had significant effects on occupational functioning due to decreased concentration, weakness or fatigue, and increased absenteeism. A July 2013 VA respiratory examination record indicates that the Veteran's respiratory condition required the use of daily inhaled anti-inflammatory medication, daily inhaled bronchodilator therapy, chronic low dose (maintenance) corticosteroids, intermittent courses or bursts of systemic corticosteroids, and at least monthly visits to a physician for exacerbations. The record indicates that the Veteran did not require outpatient oxygen therapy or antibiotics and that the Veteran did not have any episodes of respiratory failure in the previous 12 months. PFTs showed post-bronchodilator FEV1 of 65 percent predicted and FEV1/FVC of 82 percent. The examiner reported that the Veteran's asthma affected his occupational functioning because his stamina and exertional capacity were severely limited and the frequent asthma exacerbations and associated treatment severely interfered with a work schedule. A July 2013 VA sleep apnea examination record indicates that the Veteran's sleep apnea was associated with daytime hypersomnolence. The record indicates that the sleep apnea did not require continuous medication for control but did require use of a CPAP machine. The examiner stated that the fatigue and hypersomnolence associated with the sleep apnea moderately to severely interfered with the Veteran's concentration at work. After a thorough review of the evidence of record, to include records not cited in this decision, the Board concludes that a total rating is not warranted under Diagnostic Code 6602. The evidence never shows FEV1 less than 40 percent predicted, FEV1/FVC less than 40 percent, or episodes of respiratory failure. The evidence also does not indicate that the Veteran has use of daily immunosuppressive medication for his asthma: although the Veteran does get immunotherapy, the record does not indicate that the therapy is immunosuppressive or that it is provided on a daily basis. Furthermore, although the evidence does reveal use of corticosteroids, to include daily high dose inhaled corticosteroids, the probative evidence does not show daily use of high dose oral or parenteral corticosteroids. The records document that the daily-use oral corticosteroids are low-dose - high-dose corticosteroids are only prescribed in intermittent bursts - and the parenteral corticosteroids (i.e. Xolair), while high-dose, have never been used on a daily basis. Although the record includes competent statements from the Veteran, who is a licensed practical nurse, and a VA physician reporting that the Veteran has been prescribed daily high dose corticosteroids, this evidence is not probative evidence of the prescription of high-dose oral or parenteral corticosteroids as it is contradicted by the medical records. The medical records reveal the prescription of daily oral corticosteroids of at most 10 milligrams, which the record, notably the April 2013 VA examination record, indicates is not high-dose. Although the April 2013 VA examiner did not make an explicit finding that 10 milligrams was not high-dose, the examiner reviewed the record, which documented the prescription of daily corticosteroid of 10 milligram, and determined that the Veteran did not have daily use of high-dose corticosteroids. The Board finds this determination is an implicit finding that 10-milligram dosage is not "high dose." Other potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Board finds no other diagnostic code is applicable in this case. Although service connection is in effect for sleep apnea and bronchitis, the medical evidence documents that asthma is the predominant disability; as such, the diagnostic codes pertaining to those conditions are not possible bases for a higher rating. Moreover, neither diagnostic code would provide a higher rating even if applicable. See 38 C.F.R. §§ 4.96(d), 4.97 Diagnostic Codes 6600, 6847 (2013). Furthermore, the record indicates that service connection is already in effect for the nonrespiratory symptoms attributed to the asthma with sleep apnea and bronchitis. The record does not suggest the existence of any symptoms or disability which might warrant a separate or higher schedular rating. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical"). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds the manifestations of the Veteran's asthma with sleep apnea and bronchitis are not so unusual or exceptional in nature as to render the rating inadequate. The criteria by which the Veteran's respiratory disability is evaluated specifically contemplates the level of impairment caused by the asthma with sleep apnea and bronchitis. As demonstrated by the evidence of record, the Veteran's bronchial asthma is not manifested by FEV1 less than 40 percent predicted, FEV1/FVC less than 40 percent, episodes of respiratory failure, or use of daily hose-dose oral or parenteral systemic high dose corticosteroids or immuno-suppressive medications. When comparing this with the symptoms contemplated in the Rating Schedule, the schedular evaluation regarding the Veteran's bronchial asthma is not inadequate. An evaluation greater than 60 percent is provided for certain manifestations of bronchial asthma, but as discussed above, the medical evidence reflects that those findings are not present in this case. Furthermore, the evidence does not suggest the existence of associated symptoms which have not been, and should be, considered. Although the evidence documents that the asthma, with sleep apnea and bronchitis, results in occupational impairment, this impairment is contemplated by the rating currently assigned. To this extent, the Board notes that the Veteran has stated that he is unable to work full-time due to doctors' appointments associated with all of his disorders and not just his asthma, with sleep apnea and bronchitis; he has never alleged that solely the manifestations of and treatment for the asthma with sleep apnea and bronchitis precluded full-time work. Therefore, the schedular evaluation is adequate and no referral is required. After review of the evidence of record, there is no evidence of record that would warrant a rating in excess of 60 percent for the Veteran's service-connected bronchial asthma, at any time during the period pertinent to this appeal. 38 U.S.C.A. 5110 (West 2002); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). While there have been day-to-day fluctuations in the manifestations, the evidence shows no distinct periods of time since service connection became effective, during which the Veteran's symptoms have varied to such an extent that ratings greater or less than those assigned would be warranted. Cf. 38 C.F.R. § 3.344 (2013) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). Total Disability Rating Based on Individual Unemployability (TDIU) The Veteran contends that he is entitled to a TDIU because he cannot and has not worked fulltime since 2008 due to doctors' appointments and medications associated with his service-connected disabilities. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of his service-connected disability or disabilities from obtaining and maintaining substantially gainful employment, consistent with his education, special training, and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). During the appellate period, service connection is in effect for asthma, 60 percent disabling; otitis media, 10 percent disabling; sleep apnea, 50 percent disabling from July 30, 2007, to July 1, 2009; major depressive disorder, 30 percent disabling from January 29, 2006, and 60 percent disabling from June 14, 2011; urticaria, 30 percent disabling; gastroesophageal reflux disease, 30 percent disabling from March 5, 2008; migraine headaches, 30 percent from July 20, 2011; lumbar spine disorder, 10 percent disabling from March 26, 2007, and 20 percent disabling from July 20, 2011; allergic rhinitis, noncompensably disabling from February 25, 2008, and July 11, 2013, and 10 percent disabling from May 22, 2009, to July 11, 2013; acne, noncompensably disabling from March 5, 2008, and 10 percent disabling from May 22, 2009; and erectile dysfunction, noncompensably disabling from March 10, 2010. The Veteran has had combined ratings of 80 percent prior to July 30, 2007, 90 percent from July 30, 2007, 100 percent from March 5, 2008, 90 percent from July 1, 2009, and 100 percent from July 20, 2011. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, when a total schedular disability rating is in effect, the Board will only consider whether the Veteran is eligible for a schedular TDIU based solely on one service-connected disability. Otherwise, the Board will consider whether the Veteran is eligible for a schedular TDIU based on all of the service-connected disabilities. The Veteran meets the minimum schedular requirements for TDIU under 38 C.F.R. § 4.16(a). However, for a veteran to prevail on his claim for TDIU, the record must reflect that the Veteran is precluded from engaging in substantially gainful employment consistent with his education and occupational experience. Substantially gainful employment is work which is more than marginal, which permits the individual to earn a "living wage." 38 C.F.R. § 4.16(b) (2013); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The record indicates that the Veteran has been employed throughout the appellate period: working full-time prior to October 30, 2008, and part-time, on an "on call" basis, from October 30, 2008. Although the Veteran has only worked on call as of October 30, 2008, the evidence, including statements from the Veteran, does not indicate that this employment was "marginal." The VA Form 21-8940 indicates that the Veteran's part-time occupation earned him $10,000 to $15,000 per year, with an estimated monthly earning of $1000 to $1500, which correlates to an annual income of $12,000 to $18,000. The Veteran has not indicated that his annual income has declined since submitting the VA Form 21-8940. Based on the reported salary, the Veteran's part-time employment provides him an income in excess of the poverty threshold for one person. Furthermore, the record, notably the statements from the Veteran or his representative, do not suggest that the Veteran works in a protected environment or that his part-time occupation is otherwise marginal. The Board acknowledges that a January 2009 medical statement indicates that the Veteran was "unable to secure a job right now due to asthma." The Board finds this statement is without probative value, however, because it is contradicted by the Veteran's own histories of working throughout the appellate period, notably reported on the VA Form 21-8940 and in the VA medical records dated up to April 2013. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as discussed above, the preponderance of the evidence is against the Veteran's claim of TDIU, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 60 percent for asthma, with sleep apnea and asthmatic bronchitis, is denied. TDIU is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs