Citation Nr: 1805900 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-19 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active duty service from August 1967 to March 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the San Juan, Commonwealth of Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO) that, inter alia, denied entitlement to TDIU. This case was remanded in September 2014 and February 2017 for additional development. It is again before the Board for further review. FINDINGS OF FACT The evidence of record does not show the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. TDIU - Legal Criteria VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017); VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). The sole fact that the Veteran was unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran was capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). For the 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 or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a 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). II. Background and Analysis After careful review of the record, the Board finds that the evidence does not support a finding that the Veteran's service-connected disabilities preclude him from securing or maintaining gainful employment. The Veteran has consistently reported that he could no longer work beginning in 1997, and indicated that this was due to his non-service-connected cervical spine disorder. See October 2014 VA examination reports. The Veteran was awarded disability benefits from the Social Security Administration (SSA) in July 1999. It was determined that he could no longer perform his past relevant work as a pharmaceutical operator and supervisor. These records reflect that the Veteran had a high school education "and more," without any further description of additional education or training. The favorable SSA decision reflected that, after a cervical laminectomy in December 1997, the Veteran was able to work light duty in April 1998, but his return to work was unsuccessful and he had to quit due to pain and limitation of motion of his neck. The Veteran's impairments considered to be "severe" under the Social Security Act and Regulations were status post cervical laminectomy due to herniated nucleus pulposus C5-C6 and C6-C7, residual cervical radiculopathy, degenerative discogenic disease, left carpal tunnel syndrome, right elbow lateral epicondylitis, diabetes mellitus, and status post hepatitis. While SSA decisions are not binding on the VA, it is significant that these records show that the Veteran was unable to work primarily due to his non-service-connected cervical spine disability. Evidence in VA medical records supports a conclusion that the Veteran could maintain semi-sedentary employment. At a March 2014 initial assessment for occupational therapy after surgery for non-service-connected carpal tunnel syndrome, a VA examiner noted that the Veteran attended the appointment alone, walked independently, was alert and oriented in all spheres, and was able to follow commands and cooperative during intervention. He reported that he participated in community activities and drove his own car. He was able to perform self-care activities; however his non-service-connected carpal tunnel syndrome limited participation in his daily routine. These records do not reflect a level of disability that would preclude the Veteran from employment. The Veteran was provided with VA examinations in October 2014 and a VA opinion was provided in March 2017 as to whether the Veteran was unemployable due to his service-connected disabilities alone. The VA examiners of record opined that the Veteran would be able to work in a semi-sedentary position, without lifting heavy objects or standing or sitting for long periods of time. The clinical findings shown during these examinations support this conclusion. At his September 2008 VA peripheral neuropathy examination, the Veteran's sensory and motor examinations of his lower extremities reflected normal results. The Veteran's ability to complete chores, shopping, exercise, and to travel was moderately impaired; however, his service-connected peripheral neuropathy had no impact on recreation, feeding, bathing, dressing, toileting, and grooming. The October 2014 VA peripheral nerves examination report reflects the examiner's opinion that the Veteran would require employment that did not involve having to lift 15 pounds or more or bend repetitively at the waist, or stand or walk for more than 15 minutes, but that his service-connected peripheral neuropathy did not preclude him from semi-sedentary employment. With regard to impairment attributed to his service-connected heart disability, the October 2014 examiner reported a metabolic equivalents (METs) level of 5-7, based on his most recent interview. He determined that this was consistent with activities such as walking one flight of stairs, golfing without a golf cart, mowing lawn with a push mower, and heavy yard work such as digging. Of note, the rating criteria for cardiac disabilities includes a note that, in certain cases, the VA examiner should estimate the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). In other words, in this case, the examiner found that activities such as those listed above would result in dyspnea, fatigue, angina, dizziness, or syncope due to his service-connected cardiac disability. The examiner found that the Veteran's service-connected heart disability did not impact the Veteran's ability to work. With regard to his service-connected diabetes mellitus, the October 2014 VA examiner noted that the Veteran had not had any hospitalizations for ketoacidosis or hypoglycemic reactions. In addition, he did not have regulation of activities due to his service-connected diabetes mellitus. The examiner opined that the Veteran's diabetes mellitus did not impact the Veteran's ability to work. With regard to his service-connected kidney disorder, the only evidence of renal dysfunction on examination in October 2014 was persistent proteinuria (albuminuria). The examiner opined that the Veteran's kidney disorder did not impact the Veteran's ability to work. The Board notes that these VA opinions did not address the Veteran's education and employment history. However, the only information in the claims file regarding the Veteran's employment history and education/training level is contained in his July 1999 SSA record or can be gleaned from the minor amount of information he relayed to examiners at his VA examinations. The Board notes that these records reflect that the Veteran was employed as a pharmaceutical operator and supervisor; however, no description of the nature of this employment has been supplied by the Veteran. Significantly, the Board remanded this case in September 2014 and February 2017, in part, to provide the Veteran with a VA Form 21-8940 in order obtain further information regarding the Veteran's employment history and education/training history. The Veteran did not return the form or provide the requested updated information. See Wood v. Derwinski, 1Vet. App. 190, 193 (1991) ("The duty to assist is not a one-way street"); 38 C.F.R. §§ 3.159 (c)(1)(i) (requiring claimant to cooperate fully with VA's efforts to obtain non-federal records). Without the requested information from the Veteran the VA examiners were essentially unable to address his education level or employment experience in rendering their opinions. In addition, the Board will make the ultimate finding as to whether the Veteran's service-connected disabilities preclude him from securing or maintaining gainful employment, based on the evidence in the record. In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. The question of whether the Veteran's service-connected disabilities render him unemployable is a legal determination to be made by the Board. Therefore, even if the examiners had information as to the Veteran's education and work experience, the Board would make the final determination. Ultimately, in this case, there is simply not enough evidence provided by the Veteran upon which to base an opinion as to whether his service-connected disabilities would render him unable to secure or maintain gainful employment commensurate on his work experience and education level. Here, Board finds that the evidence in the record fails to show that the Veteran cannot secure or maintain gainful employment based on his service-connected disabilities. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application. ORDER TDIU is denied. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs