Citation Nr: 18156720
Decision Date: 12/11/18	Archive Date: 12/10/18

DOCKET NO. 10-41 926
DATE:	December 11, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.
FINDING OF FACT
The Veteran is not rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of service-connected disabilities.
CONCLUSION OF LAW
The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served honorably in the United States Navy from January 1990 to January 2010. This appeal arises from multiple rating decisions, which denied entitlement to a TDIU. The matter was previously remanded by the Board in November 2017.
Duties to Notify and Assist 
Neither the Veteran nor his representative 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 duty to assist argument). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 38 U.S.C. § 5102, 5103, 5103A.
Entitlement to TDIU
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2).
TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b).
If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a).
If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b).
Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. 
In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.
Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a).
The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case.
Initially, the Board finds that the service-connected disabilities meet the regulatory schedular rating requirements of 38 C.F.R. § 4.16 for consideration of a TDIU because the Veteran is service connected for at least one disability rated at 40 percent or more and the combined disability rating is at least 70 percent.  The service-connected disabilities are obstructive sleep apnea rated as 50 percent disabling, PTSD rated as 50 percent disabling, migraines rated as 50 percent disabling, pes planus rated as 50 percent disabling, iritis rated as 40 percent disabling, fibromyalgia rated as 20 percent disabling, carpal tunnel syndrome (left wrist) rated as 20 percent disabling, carpal tunnel syndrome (right wrist) rated as 20 percent disabling, degenerative arthritis of the lumbar spine rated as 10 percent disabling, bilateral Morton’s Neuroma rated as 10 percent disabling, and tinnitus rated as 10 percent disabling. See November 17, 2017 Rating Decision. 
The weight of the lay and medical evidence demonstrates that the Veteran has not been rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of service-connected disabilities. As of December 2017, the Veteran was employed by the Veterans Health Administration (VHA). See December 2017 Primary Care Note. Prior to that, the Veteran worked as a dental assistant for 20 years in the United States Navy, and that staying busy at work helps him cope with PTSD. See 2017 Psychology Evaluation Note. 
The Veteran contended his PTSD negatively impacts his workplace reliability. See April 2017 Medical Note. Stress from work caused him to get upset at times. See March 2017 Mental Health Note. To combat this stress, he enjoyed fishing with his daughter. Id. Although he has experienced work stress, he has reported that it is “[n]ot difficult at all” to do his work, take care of things at home, or get along with other people. See February 2016 Mental Health Consultation. 
The Veteran described the occasional need to leave work early. See, e.g., August 2016 Primary Care Note. He contend he needs frequent breaks at work to cope with the disabilities. See September 2009 Private Medical Exam. At a December 2017 C&P Examination, the VA examiner opined that the impact of the Veteran’s peripheral neuropathy on his ability to work was bilateral wrist pain with paresthesia and weakness. A separate examiner opined that the lumbar spine disability did not impact the ability to work. See October 2013 C&P Examination. The PTSD diagnosis occasionally decreased his work efficiency. See August 2015 PTSD Evaluation. However, he stated he could cope with some disabilities at work as long as he took medication. See November 2009 Private Medical Exam. 
The Veteran reports the ability to make friends and be around people outside of work. See August 2015 PTSD Evaluation. He has shown a desire to go back to work in the healthcare field. See June 2015 Mental Health Note. He has also said he is able to work a front desk job. See August 2016 Psychology Evaluation Note.  
On review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against finding that the Veteran is rendered unable to obtain (secure) or maintain (follow) substantially gainful employment as a result of service-connected disabilities. The degree of occupational impairment is occupational and social impairment with deficiencies in most areas, which is less than “total” occupational impairment. Significantly, the evidence of record, including the self-reported work history, reflects present employment, the desire to work in the medical field, and the ability to make friends at work, and that working helps him cope with some of the disabilities.
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For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for a TDIU have not been met or more nearly approximated for any period. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
 
J. PARKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Dye, Associate Counsel