Citation Nr: 18151901 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 17-46 563A DATE: November 20, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The competent evidence does not reasonably establish that the Veteran’s service-connected disabilities have been of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1969 to November 1993. 1. Entitlement to a TDIU Total ratings, referred to as TDIU, may be assigned in the first instance by the Board or the Regional Office when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. See 38 C.F.R. § 4.16(a). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b). Neither the effect of nonservice-connected disabilities nor of the veteran’s age may be considering in determining whether TDIU is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough to warrant TDIU. A high rating is in itself recognition that the disability makes it difficult to obtain and keep employment. 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 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 non-service-connected disabilities. 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). As an initial matter, the Board notes that since the date of his TDIU claim in November 2015, the Veteran has been in receipt of a 100 percent rating for his service-connected disabilities (diabetes nephropathy, asthma, diabetes mellitus, peripheral neuropathy right and left lower extremity, prostate cancer, cyclothymia, sinusitis and allergic rhinitis, intermittent hemorrhoids, erectile dysfunction and surgical scar). Because the Veteran is in receipt of a 100 percent rating, the July 2017 statement of the case found the Veteran’s claim of entitlement to a TDIU was moot. However, because the Veteran remains eligible for forms of special monthly compensation (SMC), the issue of TDIU is not moot. Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran’s November 2015 VA Form 21-8940 reported he was too disabled to work due to his diabetes mellitus, asthma, peripheral neuropathy, left lower extremity, erectile dysfunction, and peripheral neuropathy, right lower extremity. He last worked at TD Ameritrade as a transfer agent working with customer service and sales. He also reported he completed two years of a college education with no additional education or training before becoming too disabled to work. Several VA examinations were performed in February 2016 which evaluated the functional loss due to the Veteran’s service-connected disabilities. The examiner noted that the Veteran was retired as a consultant as a director of training for Center for Human Diversity in which he traveled to promote businesses for trade shows and engaged in public speaking. The Veteran also had been employed at TD Ameritrade in sales, doing customer service for the transfers department. The examiner found that the Veteran’s diabetes mellitus required regularly scheduled meals but otherwise caused no functional limitations regarding physical or sedentary occupational tasks due to the diabetes mellitus being well-controlled. Similarly, the examiner found that the Veteran’s diabetic nephropathy would require him to avoid handling or exposure to known nephrotoxin, such as certain chemicals producing plants, certain dye manufacturing plants or work involving use of known nephrotoxin. Otherwise, he would not have any physical or sedentary occupational limitations due to his mild diabetic nephropathy. With respect to the Veteran’s peripheral neuropathy, the examiner recommended that he avoid operating heavy equipment or driving commercial vehicles. It was also noted that prolonged standing and walking would likely aggravate the neuropathic pain. Additionally, the Veteran’s respiratory disabilities caused physical limitation with lifting, carrying, extended walking, bending, pushing/pulling motions, and exposure to fumes and gases which would aggravate the asthma. However, he would have no occupational limitations with office employment. Lastly, his erectile dysfunction and prostate cancer residuals caused no functional impact on his ability to work. Although, it was noted that heavy lifting and carrying would aggravate urinary leakage and the Veteran would require proximity to bathroom facilities. Private treatment records show that in September 2016, the Veteran reported exercising 2 to 3 times a week. He denied having complaints of chest pain, constipation, malaise, nausea, sores, urinary frequency, vomiting, weakness, weight gain, or weight loss. While it is clear from the record that the Veteran has physical and environmental limitations as a result of some of his service-connected disabilities, given his level of education and past work, the Board does not find substantial evidence in the record to support the Veteran’s inability to perform work for which he was qualified. In particular, the Veteran previously worked as a consultant and at TD Ameritrade which included work with customer service and sales. Such roles would provide the Veteran with transferable skills to work in an office setting, where he would not need to perform any physical activities, be isolated from environmental toxins and have structured times for meals. Additionally, the record does not show that the Veteran is so precluded from physical activities that he cannot exercise. After weighing all evidence of record, the Board concludes that the preponderance of the evidence of record is against a finding that the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. (Continued on the next page)   For the reasons stated above, the Board finds that the preponderance of the evidence is against entitlement to TDIU. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Counsel