Citation Nr: 1751698 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 16-10 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from May 1961 to October 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDING OF FACT The Veteran's service connected disabilities do not result in inability to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability evaluation based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking entitlement to TDIU. A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). Here, the Veteran does not meet this criteria. However, where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In determining whether the Veteran is entitled to a TDIU, neither his non-service connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993).; see also Fanning v. Brown, 4 Vet. App. 225 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his level of education, prior work experience, and training. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Veteran is currently service connection for obstructive sleep apnea, rated as 50 percent disabling; a deviated nasal septum, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. The Veteran's combined disability evaluation is 60 percent. The Veteran also has a number of non-service connected medical problems, including coronary artery disease, hypertension, hyperlipidemia, diabetes mellitus, and degenerative disc disease of the lumbar spine. The Veteran has argued that he is unemployable due to his service connected sleep apnea, but has not presented any evidence to support this claim. The Veteran was afforded a VA examination of his obstructive sleep apnea in May 2014, and the examiner concluded that the Veteran would not be prevented physically or mentally from working due to his service connected sleep apnea. Indeed, the examiner noted that the Veteran's condition was successfully treated with the use of a CPAP machine and did not result in any functional impairment. VA and private medical records were also reviewed and are negative for any evidence that the Veteran's sleep apnea causes such severe symptoms the Veteran would be prevented from finding or maintaining substantially gainful employment because of his disability. These records are also negative for any evidence that the Veteran's other service connected disabilities of a deviated nasal septum, hearing loss, and tinnitus result in sufficient functional limitation to render the Veteran unemployable. The Veteran has repeatedly argued that his receipt of disability benefits from the Social Security Administration (SSA) demonstrates his entitlement to TDIU. However, the available records from SSA reflect that the Veteran was determined to be disabled due to non-service connected disabilities such as his heart disease, as well as his advanced age. It is important for the Veteran to understand that under VA regulations, entitlement to TDIU is only warranted where a veteran's service connected disabilities alone cause unemployability. Stated another way, it is not enough for the Veteran to establish that he is unable to work due to disability- he must establish that that disability is service connected. Here, there is no medical evidence that supports a finding that the Veteran's service connection disabilities alone prevent him from finding or maintaining substantially gainful employment. However sincere the Veteran's conviction that his obstructive sleep apnea is the cause of his unemployability, he has not demonstrated that he has the knowledge or training to render such an opinion. In other words, he is a layman, not a medical or vocational expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer a medical opinion rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently is unemployable due to his service connected disabilities is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Hence, the Veteran's opinion is not competent evidence and is entitled to low probative weight. The May 2014 VA examination and available medical records provide highly probative evidence against the Veteran's claim and he has not present any evidence that would contradict the findings of the VA examiner. For all the above reasons, entitlement to TDIU is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2017). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs