Citation Nr: 21001683 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-44 711 DATE: January 11, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities, considered alone, do not preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for an award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1958 to February 1962. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Evidence Intake Center in Newnan, Georgia. In June 2019, the Veteran and his son testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In October 2019, the Board remanded the case for additional development, to include the acquisition of private and VA medical treatment records and an updated examination. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU The Veteran has asserted that he is no longer able to work. The Board does not doubt that that is true. However, the critical question for purposes of determining his eligibility for a TDIU is whether his service-connected disabilities alone, considered without regard to his age and without regard to impairment due to non-service-connected disabilities, are sufficiently disabling to render him incapable of securing or following a substantially gainful occupation. In this regard, the Veteran has stated that his service-connected skin condition affects much of his body, from the top of his head to the tops of his feet; that he suffers from itching, burning, and bleeding that consumes much of his life; that the condition restricts him from being socially active, as people note his constant itching; and that the condition also affects very delicate areas of his body, making serious relationships stressful at best. In support of his claim, he has also cited impairments related to seizures, dizziness, depression, hearing loss, heart and lung disabilities, kidney dysfunction, tooth loss, and leukemia; none of which are currently recognized as service-connected impairments. A TDIU is warranted where the evidence of record shows that a veteran is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more. If there are two or more 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. §§ 3.340, 3.341, 4.16(a). For the purpose of determining one 60-percent disability, or one 40-percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In the present case, the evidence shows that the Veteran has a high school diploma and worked for more than 30 years as a mechanical engineer. He has reported that he became too disabled to work as of May 1996. The Veteran meets the threshold requirements for a schedular award of a TDIU. He is currently in receipt of a 60 percent disability rating for generalized erythematous excoriated papules, a 10 percent rating for scarring of the neck, and a noncompensable (zero percent) rating for a scar on his right knee. He has been in receipt of a combined 60 percent rating since July 2008. With that said, the Board finds that the preponderance of the evidence weighs against the award of a TDIU. Specifically, the evidentiary record, which includes medical evidence and lay assertions, fails to demonstrate that his service-connected skin disabilities preclude him from securing or following a substantially gainful occupation. When the Veteran filed his claim for a TDIU, he identified a combination of disabilities that prevented him from working, most of which are not service-connected. In October 2015 written correspondence, he summarized his “afflictions” as skin disease, asthma and chronic obstructive pulmonary disease (COPD), heart failure, renal failure, Methicillin-resistant Staphylococcus aureus (MRSA), grand mal seizure with continued symptoms, a heart pacemaker, and leukemia. As noted, he has since also cited problems with maladies such as dizziness, depression, hearing loss, and tooth loss. During his hearing, the Veteran referred to non-service-connected disabilities as the primary cause of his unemployment. See June 2019 hearing transcript at 4. Specifically, he stated that the reason for his early departure from his job as an engineer was his lung disability. Id. at 6. He also stated that he did not want to return to work due to adverse health events related to a heart condition. Id. at 7. He referenced disruption throughout the workday due to his lung disability and his need to visit the medical department and use a nebulizer. Id. at 10. The Veteran’s son also referred to his father’s lung condition in relation to the Veteran’s need to stop working. Id. at 18. The Board has reviewed the private treatment reports offered as evidence following the June 2019 Board hearing. Most of these reports address the Veteran’s non-service-connected health problems. The reports detailing treatment for his skin disability provide no indication of any social or occupational impact that would preclude him from working. The medical reports offered by the Veteran also align with the lay statements provided by him and his partner. See, e.g., December 2017 written letter of affirmation by S.K.R. The statements all refer to several medical problems that are not service-connected. In January 2020, the Veteran was afforded a VA skin diseases examination. The VA examiner concluded that the Veteran’s service-connected skin disability did not impact his ability to function in an occupational environment. The examiner opined that “the current service-connected skin condition of the Veteran does not cause any functional impairments that impact his occupational and employment activities.” The final determination with respect to a veteran’s entitlement to a TDIU is an adjudicatory, and not a medical, function. Nevertheless, the findings reflected in the January 2020 examination report are highly probative. The Veteran clearly suffers from significant symptoms associated with his service-connected skin conditions, to include itching, burning, and bleeding, as he has reported. That fact is evidenced, in part, by the fact that he is in receipt of a combined 60 percent rating for his skin disabilities. See 38 C.F.R. § 4.1 (noting that, 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). However, the Board is not persuaded that his service-connected skin disabilities, considered alone, preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. Although he has reported that his skin symptoms consume much of his life, there is no suggestion that his symptoms interfere with functions such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, hearing, or seeing. Nor has he been service connected for any associated mental impairments. See, e.g., Ray v. Wilkie, 31 Vet. App. 58 (2019). The Board recognizes that the Veteran has previously sought service connection for a myriad of additional disabilities, including disabilities of the heart, lungs, and kidney; an acquired psychiatric disorder; and leukemia. However, his claims for service connection for those disabilities have all been denied previously and are not currently before the Board for review. See rating decisions entered in June 2014, April 2016, and December 2017. If he wishes to further pursue those claims, he may do so by filing a Supplemental Claim and submitting or identifying new and relevant evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. The Board is sympathetic to the Veteran’s position and grateful for his service. However, for all of the foregoing reasons, the Board must find that the preponderance of the against is against his claim for a TDIU. The criteria that apply to Social Security Disability claims are not the same criteria for consideration by VA. As noted, the question before the Board is whether the evidence establishes to the level of relative equipoise that the Veteran’s service-connected disabilities alone, considered without regard his to age and without regard to impairment due to non-service-connected disabilities, are sufficiently disabling to render him incapable of securing or following a substantially gainful occupation. In this case, based on the available evidence, the Board must answer that question in the negative. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.