Citation Nr: 18156908 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-28 477 DATE: December 11, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not render him incapable of securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to March 1971. He is service-connected for ischemic heart disease, rated at 60 percent disabling; posttraumatic stress disorder (PTSD), rated at 30 percent disabling; tinnitus, rated at 10 percent disabling; and, hearing loss, assigned a 0 percent or noncompensable rating. In March 2014, the Veteran filed an application for TDIU, claiming his service-connected disabilities prevent him from securing or following any substantially gainful occupation. In an April 2014 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied his application for TDIU. The Veteran timely appealed. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. 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”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record are VA examinations conducted in November 2010 and December 2013. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to a total disability rating based on individual unemployability (TDIU). Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2018). A total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran’s total disability rating is 80 percent; his ischemic heart disease is rated at 60 percent, PTSD is rated at 30 percent, tinnitus is rated at 10 percent, and hearing loss is rated as noncompensable. He thus meets the schedular criteria for entitlement to TDIU. As such, the Board will proceed with review of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In his March 2014 application for TDIU, the Veteran stated that he cannot work because of his service-connected disabilities. Post service treatment records from the Kansas City VAMC are associated with the Veteran’s case file, and many of these records make reference to the Veteran’s employment status. A June 2011 record reflects the Veteran had been feeling well and tolerating activity, and that he was working at a fireworks stand. A June 2013 record similarly reflects the Veteran reported he was working at a fireworks stand for 12-hour days. He also stated he was retired and assisting with remodeling his home. Another June 2013 record reflects the Veteran reported his days were long while he is selling fireworks, often 15-hour days, from 8am to 11pm. A July 2013 record reflects the Veteran reported his fireworks stand was open from 8am to 2am yesterday and he was there the whole time. A March 2014 record reflects the Veteran states he has given up building houses because of too much pain. A VA examination was conducted in November 2010 for PTSD. As part of the examination, the examiner inquired about the Veteran’s employment. The Veteran reported that after his military discharge, he was employed as a truck driver, welder, store manager, and over-the-road truck driver for about 20 years. He reported he was medically retired in July 2010 due to physical problems from his job. He denied history of occupational impairment related to mental health symptoms. Over the past 12 months, the Veteran stated that he had not experienced absence or loss of employment related to mental health symptoms. A VA examination was conducted in December 2013 for heart disease. As part of the examination, the examiner opined that the Veteran’s heart condition would not impact his ability to work. As rationale, the examiner stated the Veteran was a truck driver for 30 years and he has a small farm now. The examiner found that the Veteran would be able to perform sedentary to medium duty jobs without difficulty from his heart condition. He worked at a fireworks stand the summer of 2013 which involved long shifts of up to 18 hours which he tolerated without difficulty. The examiner noted that the Veteran did have several other medical conditions that are not related to his heart that limit his ability to do heavy physical labor. He has COPD, degenerative disc disease, and arthritis, but these conditions do not preclude him from working. A VA examination was conducted in December 2013 for PTSD. As part of the examination, the examiner opined that the Veteran had occupation and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner also noted that the Veteran stated he was involved in running a fireworks stand and worked there most days over the summer. The examiner also noted the Veteran reported that he was medically retired in 2010 due to pain and back issues, as well as problems with his eyesight, although cataract surgery helped the eyesight. He was an over-the-road truck driver for almost 30 years. The Veteran stated that sometimes his anxiety would “set him off” during work. He was working by himself, but dealing with the people at his destination would be difficult sometimes. A July 2014 form completed by a physician is also associated with the Veteran’s case file. In this form, the physician states the Veteran has diagnoses of severe degenerative joint disease with neuroforaminal narrowing in the lumbar spine and ischemic cardiomyopathy with 35 percent ejection fraction. The physician also checked the box for “never returning” when asked for the approximate date the Veteran will be able to return to full-time work. Records from the Social Security Administration (SSA) are associated with the Veteran’s case file. These records reflect a November 2011 finding by the SSA that the Veteran has been disabled since July 2010 due to obesity, coronary artery disease, and disorders of the back; and, that despite these impairments, the Veteran has the residual functional capacity to perform sedentary work. Lay evidence has also been associated with the Veteran’s case file. In his appeal, the Veteran stated that he worked only a few days at a fireworks tent; that working “up to 18 hour shifts” has little to do with his ability to obtain and retain any type of gainful employment; that he lacks the necessary college or trade school education to be able to perform sedentary work; and, that he purchased his “farm” in June 1994 as a residence, and a non-working farm, where he performs no work of any kind, other than the required mowing of grass. The Board has considered the medical and lay evidence in this case. The Board finds that although the Veteran does indeed have some impairment due to his service-connected disabilities, those disabilities are not of such severity as to effectively preclude all forms of substantially gainful employment. By the Veteran’s own admission, he has worked 18-hour shifts at his fireworks stand. In addition, each examiner noted above has separately opined that the Veteran’s service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. The opinions of the VA examiners are supported by the findings of the SSA, which determined that the Veteran’s disability picture is not severe enough to keep him from sedentary work. The Board does not doubt that the Veteran’s service-connected disabilities have an effect on his employability, as evidenced by his combined disability rating. While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability, the evidence of record does not support his claim that his service-connected disabilities, when considered alone, are sufficient to produce unemployability. Although they produce impairment to some degree, the evidence does not reflect that all gainful employment is precluded solely due to such service-connected disabilities. The Veteran has not identified or submitted any competent evidence that demonstrates that his service-connected disabilities alone preclude him from securing and maintaining substantially gainful employment and entitle him to a TDIU. As such, the benefit of the doubt doctrine is inapplicable, and the claim for TDIU must be denied. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel