Citation Nr: 18140825 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 15-00 943 DATE: October 5, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities, prior to February 4, 2013, is denied. FINDING OF FACT During the period prior to February 4, 2013, the Veteran's service-connected disabilities did not render him unable to secure or follow maintain a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU, prior to February 4, 2013, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.155, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from April 1955 to February 1964, and in the Army from April 1964 to July 1975. This matter comes before the Board of Veterans’ Appeals (hereinafter Board) on appeal from a December 2013 rating decision, which denied the Veteran’s claim of entitlement to a TDIU. He perfected a timely appeal to that decision. In his substantive appeal (VA Form 9), dated in December 2014, the Veteran requested a videoconference hearing. However, in a statement dated in July 2016, the Veteran withdrew his request for a hearing. In September 2016, the Board remanded the case to the RO for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in February 2017. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, and 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. § 4.16 (a). Total disability is considered to exist when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16 (a). If there is only one disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of § 4.16. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. In this case, service connection has been established for: coronary artery disease, status post coronary artery bypass graft, right bundle branch block, with residual scars and angioplasty with one stent placement, rated as 60 percent from December 15, 2009 and 100 percent from February 4, 2013; bronchitis, status post pneumothorax, rated as 30 percent disabling; type 2 diabetes mellitus, rated as 20 percent disabling; tendinitis, left elbow, rated as 10 percent disabling; tendonitis, left wrist, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, hypertension, and erectile dysfunction, all rated as 0 percent disabling. The Veteran's combined disability rating is 60 percent from May 17, 2005, 80 percent from December 15, 2009, and 100 percent from February 4, 2013. He does not meet the § 4.16(a) percentage requirements until December 15, 2009. However, the Board must examine whether the Veteran's service connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). In order to establish entitlement to TDIU benefits, there must be impairment so severe that a claimant cannot follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, 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 issue is whether the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful employment (i.e., work that is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board acknowledges that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). However, medical and other evidence addressing the functional effects of the Veteran's disabilities on his ability to perform the physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10 (2017); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Here, on his TDIU application (VA Form 21-8940), dated in November 2012, the Veteran indicated that his service-connected CAD, diabetes mellitus and bronchitis prevented him from securing or following any substantially gainful occupation. He indicated that he became too disabled to work in the fall of 2008, and he left his last job because of his disabilities. The Veteran indicated that he last worked as a Systems Analyst in the fall of 2008. He also indicated that he had an Associate Degree in Communications electronics, but he had no other education or training. In this case, the weight of the evidence, including the medical evidence, indicates that the functional limitations imposed by the Veteran's service-connected disabilities, prior to February 4, 2013, did not preclude his ability to engage in substantially gainful employment. Significantly, following a VA examination in December 2009, the examiner stated that the coronary artery disease limited all chores, exercise and sports to short durations. He added that the Veteran was retired from communications testing, but he would be able to do the job “as long as it is not in a higher elevation” due to the shortness of breath. Moreover, following a DBQ examination of the male reproductive organs in December 2012, the examiner stated that the Veteran's male reproductive condition does not impact his ability to work. In sum, the evidence of record, dated prior to February 4, 2013, shows that the Veteran’s service-connected disabilities did not preclude him from being able to engage in substantially gainful employment. Based upon the foregoing, the Board finds that the preponderance of the evidence is against the claim. The Board acknowledges that the Veteran had difficulty with his service-connected CAD, type II diabetes mellitus, tendinitis of the left wrist and elbow, hypertension, hearing loss, and tinnitus, but such difficulties are accounted for in the current 80 percent combined disability rating. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). While his service-connected disabilities may cause some economic inadaptability, this also is taken into account in the assigned disability ratings. In this case, there is no showing of total individual unemployability based solely on the service-connected disabilities prior to February 4, 2013. Significantly, the Veteran reported that he left his last job in 2008 because of his service-connected disabilities; however, during the December 2009 heart examination, the examiner noted that the Veteran was retired and that he retired in 1993 due to duration of work (he was eligible to retire due to his age). The Board has not ignored the Veteran's stated opinion that he is unemployable due to his service-connected disabilities. He has also provided lay statements in support of that claim. However, the Board finds the evidence just discussed to be more probative as to whether his service connected disabilities prevented him from securing and following a substantially gainful occupation prior to February 4, 2013. The more objective evidence tends to show that his impairment due to service-connected disabilities was not so great as to prevent sedentary employment and his work history and education is consistent with the ability to engage in such employment. As such, the probative evidence of record does not establish that the Veteran was unable to secure or follow substantially gainful employment, consistent with his educational and occupational experience, due to his service-connected disabilities. The Board notes that the Veteran has an Associate Degree in Communications Electronics. The record reflects that the Veteran's work history involved occupational settings involving working as a Systems Analyst; there is no evidence that the Veteran would have been unable to secure and maintain substantially gainful employment of similar type due to his service-connected CAD, diabetes mellitus, tendinitis, hearing loss, or tinnitus. Accordingly, a TDIU is not warranted. For the period since February 4, 2013, the Veteran's CAD has been rated as 100 percent (total) disabling. His other service connected disabilities are bronchitis, status post pneumothorax, rated as 30 percent disabling; type 2 diabetes mellitus, rated as 20 percent disabling; tendinitis, left elbow, rated as 10 percent disabling; tendonitis, left wrist, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, hypertension, and erectile dysfunction, all rated as 0 percent disabling. There is no indication that those disabilities render him unemployable. In fact, following a DBQ examination in December 2016, the examiner stated that the Veteran’s hypertension does not impact his ability to work. Hence, entitlement to TDIU is moot for the period beginning on February 4, 2013. See 38 U.S.C. § 1114 (s). In sum, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a TDIU prior to February 4, 2013 is denied. See 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). From February 4, 2013, a 100 percent disability rating has been in effect for CAD. Therefore, the claim of entitlement to a TDIU is moot. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs