Citation Nr: 1817962 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 12-10 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1964 to December 1968, including service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a September 2016 Board decision, the Board remanded the issue of entitlement to a TDIU for further development. After completing the requested development, the Agency of Original Jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) in April 2017. The case has now returned to the Board for further appellate review. FINDING OF FACT The Veteran's service-connected disabilities are not shown to have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total; when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or as a result of two or more 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 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Importantly, under 38 C.F.R. § 4.16(a), marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual 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, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 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 prior to having been awarded the 100 percent rating based on individual unemployability. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is unemployable due to his service-connected disabilities. On his claim for TDIU in January 2010, the Veteran reported that he last worked in January 2010 as a carrier with the U.S. Postal Service (USPS). With regard to his education, he completed high school and had no subsequent training thereafter. He reported that he retired from USPS due to dizziness, memory loss, and headaches, which caused occasional instability. The Veteran meets the schedular criteria for an award of TDIU; he is service-connected for traumatic brain injury (TBI), rated 70 percent; ischemic heart disease (IHD), post-surgical aortocoronary bypass, coronary artery bypass grafting twice, rated 60 percent; sensorineural hearing loss of the left ear, rated 10 percent; and residuals of shrapnel fragment wound of the left temporal area (mandibular area) claimed as fractured mandible with retained foreign body, rated 10 percent. The combined rating for his service-connected disabilities is 90 percent from August 24, 2010. In May and June 2013, the Veteran underwent examinations for TBI, hearing loss, and heart conditions (i.e., coronary artery disease, hypertensive heart disease, and status post coronary artery bypass with scars), which indicated that these conditions did not impact his ability to work. In December 2016 and January 2017, the Veteran underwent multiple VA examinations for the heart, headaches (including migraine headaches), scars, TBI, and hearing loss/tinnitus. The examiner determined that the Veteran's headaches impacted his ability to work, as they prevented work only when severe migraines occurred. The examiner found that the Veteran's TBI did not affect his ability to perform light occupational duty that did not involve stressful interaction with the public. The examiner found that the Veteran's scar condition and IHD did not affect his ability to perform sedentary and physical duties of employment. The examiner also found that the Veteran's hearing loss only affected physical and sedentary duties of employment if verbal communication was essential to perform the specific activity. After considering the evidence of record in this case, the Board finds that the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. While there is some evidence that shows the Veteran's ability to work would be impacted, the weight of the evidence shows that the Veteran is capable of work during the appeal period. For example, an August 2016 VA treatment note indicates that the Veteran volunteered with maintenance work at his church several days a week. The Board places a great deal of probative weight on the May and June 2013 examinations, as well as December 2016 and January 2017 VA opinions, as they represent competent medical evidence regarding the severity of the Veteran's service-connected disabilities and the occupational impairment they cause. The VA examiners considered the Veteran's entire history when rendering the unfavorable opinions, including both the documented medical history in the record, as well as the Veteran's lay statements; the opinions are well-reasoned, and based on sound medical principles. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). All competent medical evidence weighs against the Veteran's contention that his service-connected disabilities impair his occupational function enough to entitle him to TDIU. VA examiners stated that the Veteran's service-connected disabilities do not create a significant occupational impairment for him. As the preponderance of the evidence is against the claim for entitlement to a TDIU rating, the benefit-of-the-doubt rule does not apply, and the Board must deny the claim. See 38 U.S.C. §§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to TDIU is denied. ____________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs