Citation Nr: 18154028 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-04 679A DATE: November 28, 2018 ORDER Entitlement to service connection for a respiratory condition is denied. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran does not have a current respiratory condition. 2. Resolving all doubt in favor of the Veteran, evidence shows his service connected heart disability prevents him from obtaining and maintaining substantially gainful employment consistent with his occupational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory condition have not been met. 38 U.S.C. §§ 1101, 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 2. Resolving all doubt in favor of the Veteran, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2018); Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1960 to June 1966. He was afforded a hearing before the undersigned in June 2018. A transcript is of record. 1. Entitlement to service connection for a respiratory condition. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Veteran asserts that he has a respiratory condition which is related to his military service. At his June 2018 hearing, he testified that he was exposed to multiple chemicals while on active service which he believed caused his breathing problems. He also testified that he had not been given a formal diagnosis of any respiratory condition. The Board has carefully reviewed the evidence of record and finds that the evidence does not support the award of service connection, as a current diagnosis of a respiratory condition is not of record. At a November 2014 VA examination, the Veteran reported shortness of breath and cough with clear expectoration. The examiner noted that the Veteran had a normal chest x-ray in November 2014. Accordingly, the examiner opined the Veteran did not have any respiratory conditions or pulmonary abnormalities. Medical treatment records also fail to establish a diagnosis of a respiratory condition. Considering the lay and medical evidence, the Board finds that there is no competent evidence of a current disability relevant to the claim of service connection for a respiratory condition. 38 C.F.R. § 3.303; Shedden, 381 F.3d 1163. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). There is no objective medical opinion of record which contradicts the November 2014 VA examiner’s opinion, nor is there a medical diagnosis of a respiratory condition of record. The Veteran is competent to provide evidence of observable manifestation or symptoms and report that which he has been told. While he may report symptomatology and his belief of a current disability, the more probative and competent evidence establishes that the Veteran does not have a current respiratory condition. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran’s claim for service connection for a respiratory condition. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert, 1 Vet. App. 49; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). VA will grant a total rating for compensation purposes based on individual unemployability (TDIU) when the evidence shows that by reason of service connected disability, or combination of disabilities, the veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; see Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014) (holding that TDIU is assigned based on the collective impact of service connected disabilities). Such a rating will be assigned when the veteran meets the above criteria and (1) has a single service connected disability rated 60 percent or more OR, (2) if there are two or more service connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Initially, the Board notes that the Veteran has met the schedular criteria for a TDIU for the entirety of the appeal period. Currently, the Veteran is service connected for coronary artery disease rated at 60 percent disabling, tinnitus rated at 10 percent disabling, and bilateral hearing loss rated as noncompensable. Thus, the only remaining question is whether the Veteran’s service connected disabilities render him unable to secure or follow substantially gainful employment. The Veteran submitted a claim for TDIU in November 2015 citing his service connected ischemic heart disease as the condition which caused his unemployability. A rating decision dated March 2016 denied entitlement to a TDIU. At his June 2018 hearing, the Veteran testified that he worked for thirty years with the Xerox Corporation as a technician, and he most recently worked for seven years as a voting machine technician with the Ocean County Board of Elections. He further testified that he left his most recent job after recovery for his second hip operation took longer than expected. The Board notes he is not service connected for any hip disability. Several medical opinions address the Veteran’s employability. A March 2016 VA examination report concerning the Veteran’s ischemic heart disease reflects the examiner’s opinion that the Veteran’s heart disability impacted his ability to work. The examiner opined the Veteran could not perform strenuous physical activity that required prolonged exertion, carrying, or lifting heavy objects. Private medical opinions dated December 2015 and March 2017 from Dr. P.E. stated the Veteran’s heart condition was progressive, disabling, and caused him to not work in any full or part time capacity. After a thorough review and resolving all doubt in favor of the Veteran, the Board finds that the evidence supports the assignment of TDIU for the entire appeal period. Upon consideration of the record in its entirety, the Board finds that the Veteran’s service connected heart disability rendered him unable to secure and follow a substantially gainful occupation. As noted, the Veteran has lengthy history working as a machine technician. The evidence during the appeal period suggests that the Veteran’s service connected heart disease prevent all duties aside from perhaps light capacity work or sedentary work. It is clear that this disability alone prevented the Veteran from doing the type of work in which he has training and experience. Given the Veteran’s lengthy history in this type of physical work, and his lack of alternative training, the Board finds that these limitations prevent him from carrying out the work for which he has experience and training. (Continued on the next page)   This conclusion is consistent with the findings of the March 2016 VA examiner and December 2015 private physician, who found that the Veteran’s heart disability impacted his ability to work. Regarding the conclusions of record that the Veteran is able to perform sedentary work, these findings do not address whether the Veteran’s training and experience would qualify him for any such job. As such, the Board finds that the record is sufficient to establish that the Veteran’s service connected heart disability renders him unable to secure and follow substantially gainful occupation. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel