Citation Nr: 18144520 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-18 341 DATE: October 25, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence does not show that the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to September 1972. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a November 2014 rating decision. The Veteran did not request a Board hearing. 1. Entitlement to a TDIU The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2017). Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In circumstances where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). 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). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The Veteran’s posttraumatic stress disorder (PTSD) is rated as 70 percent effective June 28, 2012, and left hand peripheral neuropathy is rated as 20 percent effected June 28, 2012. The combined disability rating is 80 percent from June 28, 2012. The Veteran’s PTSD, rated at 70 percent, meets the schedular criteria for TDIU. However, the Board finds the Veteran’s service-connected disabilities do not render him unemployable. The Veteran worked at Brown Shoe Company as a warehouseman from January 1976 to October 1998. See September 2013 Veteran’s Application for Increased Compensation Based on Unemployability. He was on leave from April 1998 to December 1998. Id. He states he left his job because of his disabilities. The July 2014 VA examiner stated the Veteran left his job when he contracted pneumonia. See July 2014 VA examination. The Veteran has been on social security disability since 1999 and his disability is related to chronic bronchitis, emphysema, and bilateral impingement in both arms. Id. The Veteran completed the tenth grade until he withdrew from school and received his GED in 1972. See July 2014 VA examination. He has not completed any further education or training. See September 2013 Veteran’s Application for Increased Compensation Based on Unemployability. Upon July 2014 PTSD VA examination, the VA examiner opined the Veteran’s occupational and social impairment manifested with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The July 2014 peripheral neuropathy VA examiner related the Veteran was right hand dominant. The examiner stated the Veteran’s left hand peripheral neuropathy impacted his fine motor skills of grasp or grip of the non-dominant hand. It did not prevent sedentary or light work load opportunities, especially as the peripheral neuropathy does not affect the dominant hand. The examiner found the Veteran could perform activities such as desk work, answering telephones, filing, other office type duties. The Veteran relates his left hand peripheral neuropathy precludes him from working because he cannot work with just one hand. See April 2016 VA Form 9. He states his previous job as order filler required use of both hands. Id. He does not have any other training or education beyond the 10th grade and believes that no employer would hire him. Id. The Veteran states he has been on social security disability since 1998. Id. Upon October 2016 VA examination, the examiner found the Veteran’s occupational and social impairment manifested with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. After reviewing the evidence of record, the Board has determined that the preponderance of the evidence is against the Veteran’s claim for entitlement to a TDIU. The evidence shows the Veteran maintained employment for 22 years. He left his job due to pneumonia. He receives social security disability due to non-service connected disabilities. The July 2014 VA examiner found the Veteran could perform activities such as desk work, answering telephones, filing, and other office type duties. Regulation 38 C.F.R. § 4.1 provides "that percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and that "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Thus, the Veteran’s receipt of a compensable rating is recognition that his left hand disability affects his ability to perform certain tasks. The Veteran does not have loss of or loss of use of the left hand but rather has reduced functionality. As noted above, the sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining employability, the Veteran’s level of education, special training, and previous work experience is for consideration. The Board is not persuaded that given the Veteran’s level of education and previous work experience, his service-connected PTSD and left hand peripheral neuropathy render him unemployable. The Veteran’s statement that his left hand peripheral neuropathy precludes him from working because he cannot work with just one hand coupled with records that he could no longer work due to non-service connected disabilities is not persuasive evidence that his PTSD and left hand peripheral neuropathy actually render him unable to secure and follow a substantially gainful occupation. For these reasons, the Board finds that the medical and lay evidence of record does not persuasively suggest that the Veteran’s PTSD and left hand peripheral neuropathy preclude him from following a substantially gainful occupation. Thus, a TDIU is not warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel