Citation Nr: 20044779 Decision Date: 07/06/20 Archive Date: 07/06/20 DOCKET NO. 19-29 515 DATE: July 6, 2020 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran was not rendered unable to obtain gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to total disability based upon individual unemployability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1968 to April 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the November 2018 Department of Veterans’ Affairs (VA) Regional Office (RO) rating decision. The Veteran contends that he entitled to TDIU because of his service-connected disabilities. He stated that his PTSD and diabetic neuropathy hinders his ability to maintain any form of gainful employment. See May 2019 VA Form 21-0958. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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”). See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). 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. Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of a substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (central inquiry in TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability). “Substantially gainful employment” is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Further, in evaluating a Veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The word “substantially” suggests an intent to impart flexibility into a determination of a Veteran’s overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361. During the period on appeal, service connection was in effect for PTSD at 50 percent, and the Veteran has a combined rating of no less than 70 percent. Therefore, he meets the objective criteria under 38 C.F.R. § 4.16 for consideration of a TDIU. The Veteran’s highest reported education is a high school diploma. His occupational history has primarily consisted of working as a machine operator and a forklift driver until his retirement in 1998. See August 2018 VA Form 21-8940. The question at hand is whether the Veteran’s service-connected disabilities severely limited the occupational work the Veteran was able to perform. The record does not support the contention that the Veteran’s service-connected disabilities prevented him from being employed. Regarding the Veteran’s complications from diabetes, the October 2018 VA examination revealed no loss of strength attributable to diabetes mellitus. There was no noted diabetic retinopathy or other eye condition that would hinder the Veteran’s ability to see. When addressed directly, the examiner noted that the Veteran’s diabetes mellitus condition does not impact his ability to work. Regarding the Veteran’s complications from PTSD, the April 2016 VA psychological examiner stated that the Veteran had trouble getting along with people after the war. The examiner noted symptoms such as depressed mood, flattened affect, disturbances in motivation and mood, anger and irritability that may contribute to the Veteran’s difficulty establishing and maintaining effective work and social relationships. The Board finds that these symptoms do not preclude the Veteran from maintaining substantial gainful employment. The difficulties the Veteran experiences are contemplated by the disability rating the Veteran is assigned. The examiner did not note an inability to establish and maintain effective relationships. The examiner noted deficiencies in areas such as work, but did not declare total occupational and social impairment. In reaching a decision, it is necessary that the record reflect some factor which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or may have difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). (Continued on the next page)   For the reasons discussed above, the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude his participation in any form of substantially gainful employment at any time during the appeal period. Thus, entitlement to a TDIU rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.