Citation Nr: A21016271 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 181008-1104 DATE: October 1, 2021 ORDER Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected disability. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from January 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2017 rating decision from the Department of Veterans Affairs (VA) regional office (RO). The Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge in June 2021. A copy of the hearing transcript has been associated with the claims file. The Veteran's application for increased compensation based on unemployability was received in October 2017. The Veteran alleges that his respiratory disorder prevents him from being able to perform substantially gainful employment. He has reported experiencing a cough, dyspnea, and shortness of breath with minimal exertion. He has stated that the findings of a VA examiner, indicating that he is capable of sedentary employment in a clean environment is so limiting that it is virtually impossible to find employment. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disability or disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service-connected for a respiratory condition to include asbestosis, chronic obstructive pulmonary disease (COPD), bronchiectasis, and pulmonary fibrosis. Because the Veteran's singular service-connected disability is rated at 60 percent, his service-connected disability meets the schedular criteria for TDIU. "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). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts she personally observed or described; this includes recalling what she personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran received a Social Security Administration (SSA) disability determination dated in July 1993, which found that he is disabled and unable to sustain full-time employment due to a fractured left tibia as of December 1991. It is noted that such a finding is not binding on any determinations made by VA. VA and SSA use different definitions and standards for determining disability and SSA also considers limitations from all disabilities, versus considering disabilities that are related to service or a service-connected disability. Notably, the Veteran is not service-connected for the fractured tibia residuals and, therefore, the SSA disability determination is not relevant to the assessment of the Veteran's TDIU claim. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment due to the service-connected respiratory condition. The reasons follow. The record shows that the Veteran's symptomology includes shortness of breath, productive cough, dyspnea, and reduced exertional abilities due to his respiratory condition. He has managed his symptoms with the use of respiratory inhalers and a nebulizer. A private Disability Benefits Questionnaire (DBQ) submitted by Alexandre Slatkin, M.D., in October 2013 stated that the Veteran's respiratory condition impacts his ability to work, but that the Veteran has been retired and disabled due to leg problems since the 1990s. On VA respiratory examination in August 2016, describing the impact of the Veteran's respiratory condition on his ability to work, the examiner wrote that the Veteran experiences shortness of breath on mild exertion and uses a walker to ambulate. The Veteran testified at his 2021 hearing that he uses his walker when he needs to walk more than 50 yards and that he requires frequent rest; however, he stated the use of an assistive device also accommodates his nonservice-connected disabilities, including his history of knee fracture, arthritis, and scoliosis and degenerative changes in the spine. VA records in 2016 document the Veteran to be observed ambulating independently with a steady gait and no assistive device. Treatment notes from 2016 and 2017 indicate continued reports of shortness of breath and coughing but with generally stable functioning, not requiring inpatient treatment, and the Veteran denied chest pain on multiple occasions. In July 2017, the Veteran sought treatment for a finger injury that he suffered while working in his flower bed. In November 2017, a VA examiner reviewed the evidence and provided an opinion that the Veteran's respiratory condition would preclude employment in occupations requiring strenuous physical activities and in settings with airborne environmental pollutants, but that sedentary employment would be feasible in clean environments. The Board finds this opinion to be probative, as it was provided by a medical professional who was able to review the evidence of record, and which is supported by the evidence of record, which shows that the Veteran has demonstrated the ability to continue with such activities as gardening and working on his car. The Veteran's symptoms remained relatively stable thereafter. In June 2018, the Veteran sought treatment for another finger injury incurred while he was changing the brake shoes on his vehicle. The finger injury required a gangrenous amputation of the left index finger in August 2018. On the date of the procedure, the Veteran denied experiencing shortness of breath, but his history of shortness of breath with exertion was documented. Later that month, the Veteran reported continued symptoms with hemoptysis. He stated that it "is no big deal" and "happens all the time." He was found not to be in respiratory distress and had diminished breath sounds, but no rales or wheezing. In September 2019, the Veteran reported that his cough symptoms had worsened. He recorded coarse breath sounds, but was in no respiratory distress with no rales or wheezing. In February 2021, the Veteran submitted a statement from private treating provider Mary Ward, N.P., stating that the Veteran is not a candidate for any type of work due to a right shoulder fracture and poor lung function. While the Board acknowledges that the Board has vocational limitations resulting from the service-connected respiratory disorder, this opinion is of limited probative value as it its conclusion is based on limitations caused by the Veteran's nonservice-connected shoulder disability. At his June 2021 Board hearing, the Veteran and his wife both testified to the Veteran's reduced functional abilities and his difficulty performing exertional activities. However, the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment due to his respiratory disorder. While the Veteran experiences shortness of breath and is unable to perform sustained or heavy physical activities, he has maintained independence in activities of daily living. His symptoms have been managed with the use of respiratory inhalers and a nebulizer, and he has not required inpatient treatment for this disability. Despite his physical limitations, even when considering his significant nonservice-connected musculoskeletal disabilities, the record demonstrates that the Veteran continues to drive, garden, and work on his vehicle. For these reasons, the weight of the evidence is against a finding that the Veteran's respiratory condition precludes him from substantially gainful employment. Regarding the Veteran's education, training, skills, and work history, the Veteran has reported that he is a high school graduate and took one year of college courses. The record also shows the Veteran to have training in auto body repair. Since his discharge from active duty, the Veteran reported working as a laborer in maintenance until he fell off a scaffold in 1991, causing significant nonservice-connected injuries to his knee and back. The Veteran reported that he returned to work in 2003 to 2005 as a laborer working on pipelines, but that he has not worked since. Overall, the Veteran's diverse work, training, and education experience demonstrate a capacity for learning, training, and adaptability that would not be hindered by his service-connected disability. These attributes would facilitate the Veteran's return to substantially gainful employment. As to the Veteran's physical ability to perform substantially gainful employment, the Veteran's respiratory condition causes the Veteran to cough and experience shortness of breath with physical exertion. However, the record shows that the Veteran is independent in activities of daily living and has not required inpatient treatment for his service-connected disability. The Veteran can walk short distances independently and has continued to drive, garden, and work on his car. Accordingly, the totality of the evidence shows that the Veteran is capable of performing work at least at the sedentary exertional level in an environment without exposure to airborne respiratory irritants. The Department of Labor's Dictionary of Occupational Titles (DOT) defines sedentary work as exerting up to 10 pounds of force occasionally (i.e. up to one third of the time), and/or a negligible amount of force frequently (i.e. from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. According to DOT's definition, sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. The Board finds no prejudice to the Veteran in considering this definition for purposes of deciding the Veteran's claim. The longitudinal record indicates that the Veteran is capable of sedentary work in an environment without exposure to airborne respiratory irritants, as his reported activities have exceeded these limitations at times, including gardening and working on his vehicle. Accordingly, the weight of the evidence shows that the Veteran is physically capable of performing substantially gainful employment. As to the Veteran's mental ability to perform substantially gainful employment, the Veteran has no service-connected psychiatric disorder. The Veteran's service-connected disability has not been shown to cause the Veteran communication deficits. He has consistently demonstrated appropriate behavior throughout the longitudinal record. Although the Veteran has reported some dyspnea during periods of sustained physical activity, the Veteran has regularly been found to be fully alert and oriented, with intact neurological and cognitive functioning. As the Veteran's service-connected disability does not cause him mental limitations, the weight of the evidence shows that he is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment. For example, the preponderance of the evidence is against a finding that the Veteran's service-connected respiratory condition would preclude him from jobs that can be performed at home in a controlled environment, such as a telemarketer, where the employee makes calls and reads a script, which does not require extensive training or experience, and would require minimal exertional activity. Similarly, a customer service agent interacts with customers to handle complaints, process orders, and answer questions. This occupation can also often be performed from home, with limited physical activity. While the Veteran has reported that he has only worked outdoors as a laborer, these positions would utilize everyday skills primarily involving reading and conversing appropriately with others. The record, as well as the Veteran's college experience supports that the Veteran possesses these abilities and such jobs would not require advanced training or experience. Similarly, the Veteran appears capable of performing certain cashier positions, or work as a library, theater, or museum attendant, positions that would not be physically demanding and could be performed indoors in a controlled environment without additional exposure to respiratory irritants. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could have performed. Additionally, these occupations were limited to sedentary occupations, consistent with the assessment of the 2017 VA examiner. Such classification is meant to consider the Veteran's minimal physical capabilities, despite the fact that he has reported performing activities that may otherwise exceed the physical limitations ascribed herein. This is evidence against a finding that the Veteran is precluded from all forms of substantially gainful employment due to the service-connected disability, as well as the Veteran's contention that finding any suitable employment would be virtually impossible. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that the Veteran is precluded from all forms of substantially gainful employment due to the service-connected respiratory condition to include asbestosis, COPD, bronchiectasis, and pulmonary fibrosis and, therefore, is not entitled to a TDIU rating. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU rating is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.