Citation Nr: 18147686 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-40 003 DATE: November 6, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connect disabilities were not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The service-connected disabilities do not meaningfully alter or substantially reduce the likelihood of securing gainful employment consistent with prior work experience. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.340; 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service in the United States Army from August 1999 to October 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). A TDIU may be assigned where the schedular rating of two or more disabilities exceed 70 percent with at least one disability rated at 40 percent or more, provided that the disabilities are so disabling as to prevent the Veteran from securing and maintaining gainful employment consistent with his work background. Smith v. Shinseki, 647 F.3d 1380, 1382 (Fed. Cir. 2011) (referencing 38 C.F.R. § 4.16(a)). Here, the Veteran is service-connected for discogenic disease of the lumbar spine, rated at 40 percent; suprapatellar bursitis of the left knee, rated at 10 percent; and major depressive disorder, rated at 70 percent, with a combined disability rating of 80 percent. He therefore, meets the schedular rating requirements for TDIU; however, the deleterious effect of these disabilities do not render the Veteran unemployable. See Smith v. Shinseki, 647 F.3d at 1383–84. The Veteran possesses an associate’s degree, and has worked as a customer service representative, cashier, and salesman at Kmart prior to entering the military. While in service, he was an administrative specialist and worked with the mail service in Iraq where he drove a Humvee and carried boxes. Since leaving the military, the Veteran became a full-time student studying computer science, and while he left this program in 2013, he stated that it was due to transportation issues and that he would like to continue this education. He has also maintained a familiarity with the subject matter in his personal time by reading articles. The Veteran’s most recent employment was prior to 2012 when he worked with a friend “in computers;” however, he voluntarily quit this position after a few months because he “was always ill humored” and had problems with absenteeism. Since then the Veteran has spent his personal time playing piano, babysitting his niece, and attempting to fix a car to continue taking classes–activities requiring a non-negligible degree of mental fortitude and physical mobility. In February 2014, the Veteran’s mobility was assessed at a VA examination, and it was determined that the Veteran’s physical and mental disabilities do not completely remove any extremity’s function. Furthermore, upon examining the VA claims file, the examiner stated that the Veteran would be able to function in a sedentary job without exacerbating either the intervertebral disc syndrome or bursitis. Nothing in the record suggests the Veteran’s performance of sedentary work would be further restricted or precluded by his major depressive disorder, beyond those impairments caused by the lumber spine and knee disabilities. While indisputable impairments exist, the ability to function in a sedentary work environment without exacerbating the service-connected disabilities does not preclude the Veteran from securing and maintaining gainful employment in-line with prior work history. In viewing all the evidence, the Board finds that the Veteran is not precluded from maintaining substantial gainful employment. The Board notes that the Veteran has an associate’s degree, took computer science courses for more than four years, and that his entire work history is comprised of customer service, administrative positions, and briefly working with computers. The evidence does not suggest any employment or attempt to seek employment since voluntarily leaving his prior position in 2012, nor does it suggest a worsening of his medical disabilities since his last VA examination in 2014. In fact, the Veteran’s daily activities and ability to maintain familiarity in the field of computer science suggest a capability to function in a sedentary workplace. Based on the foregoing, the Board finds that the Veteran is not prevented from securing and maintaining gainful employment in line with prior work experience due to his service-connected disabilities. As noted above, the evidence of record shows that all examiners concluded that the Veteran could still perform sedentary work. The Board has considered the Veteran’s contentions and notes that his mental and physical disabilities may cause him some functional loss, but not to the extent that it would preclude employment. The Veteran is already in receipt of a combined 80 percent disability rating for his disabilities, respectively, which compensates for the loss in employment income experienced by the Veteran due to his service-connected disabilities. Thus, entitlement to a TDIU is not appropriate in this case. See 38 U.S.C. § 1155; 38 C.F.R. § 4.16. In summary, the Board has considered the benefit of the doubt rule; however, since a preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is not for further application. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lherault, Associate Counsel