Citation Nr: 18161309 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 16-48 612 DATE: December 31, 2018 ORDER Entitlement to a finding of total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities collectively do not render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for a finding of TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.3, 4.15, 4.16, 4.18 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from September 1962 to September 1966 and from January 1967 to April 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). TDIU Throughout the appellate period, since March 2012, the Veteran has had a single disability rated 60 percent disabling or a combined rating in excess of 70 percent, with one condition rated 40 percent disabling or more, thereby meeting the threshold criteria under 38 C.F.R. § 4.16(a). The Veteran has also had a Schedular disability evaluation of 100 percent for prostate cancer since June 2016. The Board is considering the Veteran’s claim for TDIU based on his service-connected disabilities other than prostate cancer, the inclusion of which would render the claim moot. Total disability ratings for compensation 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. 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16. The Veteran alleges that his service-connected conditions render him unemployable. His neuropathy prevents him from sitting or standing for long periods of time, and PTSD keeps him from working with people and in stressful situations. Medications keep him drowsy. As a “high risk” employee, no one will hire him, he argues. The Board has considered the impact of all his service-connected disabilities, aside from prostate cancer. These disabilities include peripheral neuropathy of both lower extremities, rated 10 percent disabling each; PTSD rated 50 percent disabling; diabetic nephropathy rated 60 percent disabling; and type II diabetes mellitus with erectile dysfunction rated 20 percent disabling. Regarding his educational achievement, the Veteran graduated from high school. After separating from the military, he worked in the Merchant Marine as a chief steward for twenty years. Then he worked as chief cook on riverboats for various companies. The Veteran has argued that he is entitled to TDIU based upon his age. However, age is not a factor in determining entitlement to TDIU. In contrast to the Veteran’s allegations, a May 2012 a VA examiner noted that the Veteran’s diabetes and peripheral neuropathy did not impact his ability to work. Similarly, a VA examiner stated that although the Veteran reported he had some difficulty establishing relationships and that his sleep disturbances decreased his efficiency at times, but he opined that the Veteran generally functioned in a satisfactory manner overall. The examiner did not indicate that the Veteran’s PTSD rendered him unable to function. In June 2016, the Veteran told treating doctors that he stayed active all day with housework and mowing outside. During an October 2017 treatment session, the Veteran reported improvement in all areas of functioning, and stated that he had discontinued several medications. Doctors consistently described him as alert and cooperative. The Board finds that the Veteran remains employable given his service-connected conditions other that prostate cancer. Nephropathy has no occupational impact, as per VA examiners. His diabetes and peripheral neuropathy are currently controlled. While there are some functional limitations associated with such, the Veteran has demonstrated an ability to work around them to complete household tasks that would easily translate to employment. He has a long and steady work history, and while he prefers to work alone, is cooperative with others when needed. His complaints regarding medications have been relieved by the stopping of many and the end of many of the side effects. In short, the Veteran’s occupational functional capacity, while diminished in some respects, is not total, and is adequately compensated by the schedular ratings assigned for his service-connected conditions other than prostate cancer. There is no doubt to be resolved; the preponderance of the evidence is against the claim. Entitlement to TDIU is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDermott, Associate Counsel