Citation Nr: 21000466 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-01 795 DATE: January 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran has been granted service connection for nummular eczema with ichthyosis, with a 60 percent rating, and lymphadenopathy, with a 10 percent rating. His combined rating is 60 percent. 2. The Veteran’s service-connected disabilities do not render him unable to obtain or maintain gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1-4.14, 4.21, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1976 to March 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran subsequently perfected an appeal of this determination within VA’s legacy appeals system. This issue was previously presented to the Board in November 2017 and again in April 2019; on each occasion, it was remanded for additional development. It has now been returned to the Board. Entitlement to a TDIU The Veteran seeks a TDIU. He asserts his service-connected disabilities prevent him from obtaining or maintaining gainful fulltime employment, and a TDIU is therefore warranted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The U. S. Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability 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). VA’s policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating. 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran has been granted service connection for nummular eczema with ichthyosis, with a 60 percent rating, and lymphadenopathy, with a 10 percent rating. His combined rating is 60 percent. As such, the Veteran has met the applicable schedular disability rating requirement. 38 C.F.R. § 4.16(a)(3). Turning to the question of whether the Veteran’s eczema and lymphadenopathy disabilities render him unemployable, the Board notes that he is retired, having previously worked for Amtrak, the U.S. Post Office, and other employers over the years. Regarding the medical evidence of record, the Board notes that Veteran has been provided multiple VA examinations regarding his service-connected disabilities. Private medical examination reports and opinions have also been obtained. A January 2013 VA medical examination evaluated the Veteran’s lymphadenopathy. The examiner noted a scar below the Veteran’s chin resulting from a 1979 biopsy of two cysts, but no current active lymphatic or hematologic disability was found. A February 2014 Amtrak disability assessment found the Veteran was disabled due to eczema, back pain, and vision problems. A January 2015 VA dermatology examination confirmed the Veteran’s ongoing eczema, but found he did not experience debilitating episodes or systemic manifestations due to this diagnosis. On that occasion, the Veteran’s skin disability involved less than 5 percent of his entire body area, and none of the exposed areas. Additionally, the examiner found no evidence of functional impairment or inability to work due to the Veteran’s eczema. In support of his claim, the Veteran has submitted several statements from private psychiatrists and psychologists indicating he is unable to work secondary to a psychiatric disability. The Veteran has filed service connection claims for a psychiatric disability, but at present service connection for a psychiatric disability has not been granted. For these reasons, based on a review of the evidence of record, the Board finds that entitlement to an award of a TDIU is not warranted, as the preponderance of the evidence of record is against a finding that the Veteran is unemployable as a result of the service-connected eczema and lymphadenopathy. While the Board acknowledges the Veteran’s service-connected disabilities causes functional impairment, it does not find that these disabilities alone preclude employment based on his educational and occupational experience. The Veteran worked for many years post-service in a variety of employment fields, and is only unemployed at present due to disabilities for which service connection has not been awarded. All examiners agreed that the Veteran’s service-connected disabilities do not prohibit employment. (Continued on the next page)   As noted, the decision of whether a veteran is employable due to his service-connected disabilities is a legal, rather than medical, determination. Here, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough for a grant of TDIU, as the ratings themselves recognize that the impairments make it difficult to obtain and keep employment. The Board sympathizes with the Veteran and recognizes that his service-connected disabilities have had an effect on his employment capabilities. To the extent that the Veteran’s service-connected disabilities hinder his ability to obtain or maintain gainful employment, industrial impairment is already contemplated by the rating schedule and the disability evaluations assigned during the period on appeal. Stated another way, evidence of occupational limitations is present in every case in which an evaluation has been assigned for a service-connected disability. See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations and the degrees of disability specified 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); see also Van Hoose v. Brown, 4 Vet. App. at 361, 363 (1993) (A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.). Thus, in light of the foregoing, the Board finds an award of a TDIU is not warranted. As a preponderance of the evidence is against the award of a TDIU, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, 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.