Citation Nr: 18141182 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 14-32 326A DATE: October 9, 2018 ORDER A total disability due to individual unemployability (TDIU) from January 5, 2010, is granted. FINDINGS OF FACT 1. From January 5, 2010, the Veteran’s service-connected disabilities satisfied the threshold criteria for TDIU. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities when considering his education, special training, and employment history. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, entitlement to a TDIU beginning January 5, 2010, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the U.S. Navy from January 1965 to August 1968. The Veteran died in February 2016. The appellant, the Veteran’s surviving spouse, has been recognized as the substitute claimant pursuant to 38 U.S.C. § 5121A and 38 C.F.R. § 3.1010(b). Entitlement to an effective date prior to April 11, 2011, for the award of total disability due to individual unemployability (TDIU). The appellant is seeking a total disability rating due to the Veteran’s service connected heart disease, diabetes mellitus, peripheral vascular disease of the right and left, lower extremities, peripheral neuropathy of the extremities, tinnitus, hearing loss, erectile dysfunction, and residual scars, prior to April 11, 2011. Total disability ratings for compensation purposes 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 are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16. The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. In determining whether unemployability exists, consideration may be given to a Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to April 11, 2011, the Veteran was service connected for coronary artery disease at 60 percent, diabetes mellitus at 20 percent, and tinnitus at 10 percent. His combined rating was 70 percent. Accordingly, the Veteran met the schedular criteria for an assignment of a TDIU from January 5, 2010. 38 C.F.R. § 4.16a. Therefore, the question before the Board is whether the Veteran’s service connected disabilities prevented him from maintaining or obtaining employment. VA treatment records show the Veteran reported he retired in 1998 after working in the auto industry for 30 years. The Veteran applied for increased compensation based on unemployability in April 2011 and noted that he became too disabled to work in 1998 due to a severe heart condition and diabetes. However, he also indicated that he did not leave his job because of his disabilities. He did not expect to receive retirement or workers compensation benefits. He did not seek any new employment after he became too disabled to work because no employer would hire him due to his severe disabilities. In the January 2010 VA heart examination report, the examiner noted the Veteran underwent a coronary artery bypass graft in 2004 due to worsening symptoms and a heart attack. He had a right and left carotid endarterectomy in December 2004 and August 2009, respectively. He underwent a stress test and his METs level was four. The examiner found that he can do daily activities such as grocery shopping and slow walks with his dog. The examiner for the June 2012 diabetes examination indicated the Veteran experienced diabetic retinopathy, progressive loss of strength attributable to diabetes mellitus, and peripheral vascular disease. The examiner found that the Veteran’s diagnosis and complications impacted his ability work, noting that some occupations do not allow employees to be on insulin. The June 2012 heart examiner noted the Veteran was admitted to the hospital in January 2010 for chest pain and high blood pressure. An exercise stress test also conducted in January 2010 was normal; the Veteran’s METs level was 8.2. During the June 2012 interview based METs test, the Veteran reported pain and fatigue of the lower extremities and achieved an estimated METs level of 5-7. Overall, the examiner found that his cardiovascular diagnosis did not prohibit sedentary employment. Upon careful review of the evidence of record, the Board finds that the positive and negative evidence regarding the Veteran’s TDIU claim is in relative equipoise. The evidence shows the Veteran retired from the auto industry after 30 years and on his TDIU application, he indicated that he did not leave his job due to his conditions. However, the medical evidence shows that his service-connected disabilities would have prevented him from performing overly physical activities; specifically, examiners have found that he could only perform sedentary jobs and would have difficulty doing more than slow paced walks and grocery shopping. The Board finds that the realistic chances of the Veteran obtaining and retaining employment must also be considered in light of his physical and educational capabilities. Although it is conceivable that there may be some occupations that the Veteran could perform, the totality of the evidence supports a finding that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment when his educational and work background are taken into consideration. Based on the foregoing, the Board finds that the Veteran met the requirements for a TDIU beginning January 5, 2010. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel