Citation Nr: 21064051 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-46 507A DATE: October 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. At the time of his death, the Veteran had a combined disability rating of 40 percent. 2. The evidence of record does not show that the Veteran's service-connected disabilities precluded him from securing and following a substantially gainful course of employment. CONCLUSION OF LAW The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 3.1000, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from December 1968 to August 1970; and died in July 2014. The appellant is his surviving spouse. She has substituted for the Veteran in this appeal. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge in March 2020. A transcript of the hearing has been associated with the claims file. The Board previously remanded this matter in April 2020, along with the issues of entitlement to service connection for pressure ulcers in the feet, to include as secondary to service-connected diabetes mellitus, and entitlement to service connection for hypertension, to include as secondary to herbicide exposure. In a March 2021 rating decision, the RO granted the claims for accrued benefits for service connection for pressure ulcers of the feet, with an evaluation of 20 percent effective August 10, 2012 to July 27, 2014 and accrued benefits for service connection for hypertension associated with herbicide exposure, with a noncompensable evaluation. In May 2021, the appellant filed a VA Form 10182 Notice of Disagreement, choosing the evidence submission option, appealing the issues of coronary artery disease, chronic hypertension, foot ulcers, and "other service related illnesses." She indicated the date of the decision being appealed was March 2021. The Board notes that only the issues of foot ulcers and hypertension were included in the March 2021 rating decision. That rating decision was issued under the modernized review system, also known as the Appeals Modernization Act (AMA). Based on the appellant's VA Form 10182, the issues of foot ulcers and hypertension have been appealed to the Board under the AMA and will be addressed in a separate decision. The Board notes that the appellant indicated in her VA Form 10182 that she was opting in from SOC/SSOC. Additionally, May 2021 correspondence accompanying the VA Form 10182 indicated that the letter was in response to the SSOC she received dated April 23, 2021 and the award explanation letter dated April 7, 2021. However, the April 2021 SSOC only addressed the issue of TDIU. Considering the appellant also provided the SSOC notice response in May 2021 and did not mention TDIU in the VA Form 10182, the Board finds the issue of TDIU remains before it under the legacy system. Entitlement to a total disability rating based on individual unemployability A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. For the purposes of 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, 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); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran had the following service-connected disabilities: pressure ulcers in feet (rated 20 percent from August 10, 2012); coronary artery disease (rated 10 percent from August 2011); type II diabetes mellitus (rated 10 percent from August 2012); mild residuals tinea pedis (rated zero percent from August 1970); and hypertension (rated zero percent from August 10, 2012). His combined disability evaluation was 40 percent. See 38 C.F.R. § 4.25, Table I. Based on the forgoing, the Veteran did not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that he was unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). For the reasons that follow, the Board finds that there is not sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities, and therefore referral of the claim is not warranted. The record reflects the Veteran was paralyzed, required significant care, and was unable to work. However, the record suggests his limitations were largely caused by his cancers, which were not service connected. A pathology report from June 2011 confirmed colon cancer and a PET scan from later in June 2011 revealed that the cancer had metastasized to the liver. A medical consultation from May 2012 reflected the Veteran had done well from the treatment he received, but a month earlier he began to have pain in his upper back that had progressed. A CT scan of the thoracic spine from May 2012 revealed a lesion. The Veteran noted in his April 2013 TDIU application that he retired in December 2010 and became too disabled to work in March of 2011. March 2011 was also listed as the date his disability affected his full-time employment. At the time of the March 2020 hearing, the appellant explained the Veteran's paralysis was caused by his spinal tumor. While the Veteran suffered a heart attack in 2007, the record suggested he continued working after recovering from the heart attack until he retired, over three years later. The Veteran was also able to work with his other service-connected disabilities. As he noted in his April TDIU application, he did not become too disabled to work until after he retired and closer to the time he was diagnosed with cancer. (Continued on the next page) Consequently, the Board finds that referral of the claim for a TDIU is not warranted because the evidence shows that the Veteran was rendered unemployable by his nonservice-connected disabilities which cannot be considered in granting his claim. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In reaching this decision, the Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt rule cannot aid the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A TDIU is denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.