Citation Nr: 18152109 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 15-39 243 DATE: November 21, 2018 ORDER Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities are not of such severity that they preclude all forms of substantially gainful employment for which the Veteran’s education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from March 1970 to March 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in March 2015 and was provided with a statement of the case (SOC) in October 2015. Entitlement to TDIU The Veteran seeks entitlement to TDIU based on the following service-connected disabilities: 30 percent for bilateral pes planus effective June 2014, 50 percent for post traumatic stress disorder (PTSD) effective September 2010, 20 percent for healed fracture, distal shaft, right humerus, secondary to shell fragment wound effective August 2004, 10 percent for tinnitus, effective August 2011. The combined evaluation is 80 percent. The law provides that a total disability rating may be assigned where the schedular rating is less than total 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 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). When considering whether the Veteran’s disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA 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. 38 C.F.R. § 4.16(b). The rating boards are required to submit to the Director, Compensation and Pension 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 38 C.F.R. § 4.16(a). Id. The claim for TDIU may be considered under the provisions of 38 C.F.R. § 4.16(a) because the Veteran has a single disability with a rating greater than 40 percent, and his disabilities together have a combined rating of 80 percent. In determining unemployability for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2015). 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 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 he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Disability ratings are based on the average impairment in earning capacity resulting from the disability. 38 C.F.R. § 4.1. For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect circumstances which place that veteran’s case in a different category than other veterans with an equal rating of disability. Van Hoose, 4 Vet. App at 363. The evidence of record indicates that the Veteran has a high school education and attended junior college for one year before dropping out. He has previously held manual labor jobs such as assembly line and maintenance work. His most recent job was in 2009 at a senior center doing maintenance work, grounds keeping and washing dishes. According to his most recent employer, the Veteran ceased this work in 2009 when he was diagnosed with throat cancer and has not been actively employed since. The record contains a VA PTSD examination dated March 2015. The Veteran reported that he had not worked since 2009 after he received a diagnosis of cancer. The examiner noted that the Veteran has not worked since 2010 and indicated that his occupational functioning is inferred from the frequency and intensity of PTSD symptoms which the examiner determined were moderate. The examiner indicated that if the Veteran were working, difficulties at work that could be attributed to PTSD effects would include problems with work efficiency, low work quality or reduced productivity due to poor concentration and poor memory. The examiner concluded that PTSD resulted in occupational and social impairment with reduced reliability and productivity. The examiner did not indicate that PTSD would prevent him from obtaining or maintaining gainful employment. The examiner is competent give such an opinion given her background, she is credible given that her analysis has not be questioned, and her opinion has significant probative weight given the detail and rationale. A March 2015 VA examination report, detailing the severity of the Veteran’s service connected pes planus indicated that while his condition causes numbness from walking more than two blocks as well as the inability to stand for more than 30 minutes, nowhere in the examination report is there evidence that this disability would prevent him in any way from obtaining gainful employment. The examiner in this instance is competent as well given his background, his credible given that the analysis has not been questioned, and his opinion has probative value given the detail and rationale. Regarding the Veteran’s service connected healed fracture, distal shaft of the right humerus and limitation of extension of his right elbow, a VA medical report from March 2015 indicates that that while the Veteran’s limits with extension of the right elbow would prevent him from using certain tools with his right hand, there is no indication that the condition would prevent the ability to obtain or retain substantially gainful employment. This opinion was given by a qualified VA examiner giving it competence, he is credible given that his opinion has not been questioned, and it has probative value given the detail and rationale. Regarding the Veteran’s service-connected tinnitus, the provided medical records do not indicate that such disabilities prevent gainful employment in any way. In addition, the provided medical records from the Social Security Administration (SSA) indicate the benefits were award based on nonservice-connected cancer. Taking the above records into account, the weight of the evidence does not demonstrate that the Veteran’s service-connected disabilities render him unemployable. The weight of the evidence demonstrates that the Veteran stopped working was due to his diagnosis of throat cancer in 2009, prior to that he had been working even while dealing with his service-connected disabilities. Moreover, none of the provided medical records show that the service-connected disabilities ratings prevent the Veteran from obtaining gainful employment. In conclusion, the greater weight of the evidence is against finding that the Veteran’s service connected disabilities have rendered him unemployable. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). His claim is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Luby, Associate Counsel