Citation Nr: 18153007 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-63 219 DATE: November 27, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to October 2017, is denied. FINDING OF FACT The evidence of record does not show that the Veteran’s service-connected disabilities preclude him from following a substantially gainful occupation. CONCLUSION OF LAW The criteria for an award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, PR. The Veteran participated in a conference with a Decision Review Officer (DRO) in April 2017. 1. Entitlement to a total disability based on individual unemployability In order to establish service connection for a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially-gainful occupation. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). When the veteran’s schedular rating is less than total, a total rating based upon unemployability may nonetheless be assigned. If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. See 38 C.F.R. § 4.16(a) (2017). A total disability rating also may be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). For a veteran to prevail on a claim for a TDIU, 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. See 38 C.F.R. 4.16(a) (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment cannot be considered substantially-gainful employment. Generally, marginal employment exists when a veteran’s earned annual income does not exceed the Federal poverty threshold for one person. 38 C.F.R. § 4.16(a) (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). The Veteran is currently service-connected for diabetes mellitus with hypertension and erectile dysfunction and its consequences, which include nephropathy; peripheral neuropathy of the right upper extremity; peripheral neuropathy of the left upper extremity; retinopathy; peripheral neuropathy of the right lower extremity; and peripheral neuropathy of the left lower extremity. The combined disability evaluation when the Veteran submitted his claim in 2015 was 90 percent. His combined schedular disability evaluation was increased to 100 percent, effective from October 6, 2017. Thus, he meets the schedular criteria for a TDIU outlined above. 38 C.F.R. § 4.16(a), the remaining question concerns whether prior to October 2017, the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). After careful review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against the award of a TDIU for any portion of the period on appeal as explained below. During a conference with the DRO, the Veteran reported working at Sea Star Line Co. from approximately 2000 to 2006. He then worked at JWD Engineering Corp from 2007 to 2014 as president/owner, where he performed administrative work. He indicated on an Employment Information document that this job ended because of the termination of the contract. He testified he lost 10 hours of work per week due to his medical condition. VA examination document findings that the Veteran’s service-connected disabilities, including his eye condition, diabetes mellitus, kidney condition, hypertension, and erectile dysfunction, do not impact his ability to work. See March 2016 VA Examination Reports, see March 2017 VA Examination Report. A March 2016 VA examination for peripheral neuropathy, however, indicated the Veteran has slowed and lost dexterity, which impacts his ability to work. Nevertheless, a subsequent VA examination in October 2017 for peripheral neuropathy, more specifically indicated this did not preclude employment. The Board notes that the Veteran’s ratings for his service-connected disabilities considers the limitations and difficulties he has due to these disabilities. The evidence shows that the Veteran went to college for 3 years and worked for a significant amount of time after separation from service. He can communicate fully, and while he does have some physical limitations, he has not been shown to be precluded from performing the tasks required in substantially gainful employment prior to October 2017. The evidence of record indicates that it is likely that he could work in administrative positions that did not require physical labor. The Board finds that for the period in question, the evidence shows the Veteran to can perform the tasks that comport with his education and occupational experience. Thus, the Board finds that prior to October 2017, the Veteran’s service-connected disabilities have not rendered him unable to secure and follow a substantially gainful occupation and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for a TDIU, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Jaigirdar, Associate Counsel