Citation Nr: 21074890 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 10-17 521 DATE: December 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period of January 12, 2012 to August 9, 2012 is denied. FINDING OF FACT For the period of January 12, 2012 to August 9, 2012, the Veteran's service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW For the period of January 12, 2012 to August 9, 2012, the criteria for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1962 to February 1966 and September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In February 2018 the Veteran appeared for a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding is of record. After multiple Board remands, a May 2020 rating decision granted a TDIU, effective July 24, 2019. The Veteran's combined rating was increased to 90 percent effective January 12, 2012, and 100 percent from August 9, 2012. In a July 2020 Board decision, the Board denied entitlement to a TDIU for the period of January 12, 2012 to August 9, 2012. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's denial and remanded the matter to the Board to adequately discuss whether the Veteran's service-connected disabilities, when considered in combination with and in light of his education and occupational history, preclude his ability to secure or follow a substantially gainful occupation. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from January 12, 2012 to August 9, 2012 The Veteran seeks a TDIU. He asserts that he is not able to work due to the combined effects of his multiple service-connected disabilities. The Veteran's combined rating is 90 percent from January 12, 2012, and 100 percent from August 9, 2012 to present. The Board recognizes that a grant of a 100 percent disability does not always render the issue of TDIU moot. However, as the Veteran is seeking entitlement to a TDIU based on the combined effect of multiple service-connected impairments, the issue of TDIU for the period the Veteran is assigned a 100 percent rating is moot. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (analyzing 38 U.S.C. § 1114(s)). Thus, the Board will address only the period of January 2012 to August 8, 2012. 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. 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 has the following disabilities that are service connected: diabetic nephropathy, prostate cancer with urinary urgency, diabetes mellitus with hypertension, peripheral neuropathy of both lower extremities, peripheral vascular disease of both lower extremities, tinnitus, bilateral hearing loss, and erectile dysfunction. The Veteran is assigned a 60 percent rating for diabetic nephropathy, and compensable ratings for all other conditions excepting erectile dysfunction and hearing loss. Based on the forgoing, the Veteran has one disability rated 60 percent. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is not warranted for the period of January 12, 2012 to August 9, 2012. The Veteran retired from his job as an automotive mechanic in December 2009. Thereafter he worked as a preacher four hours per week from April 2008 to June 2010 and one and a half hours per week from August 2010 forward. He has three years of college education. At the February 2018 Board hearing the Veteran testified that he was unable to work primarily due to shortness of breath and because he could not walk long distances as his leg would give way. The Veteran is not service connected for any respiratory disability, and thus the Board cannot consider the impact of any breathing difficulties on his ability to work. However, the Veteran also contends that prostate cancer with urinary incontinence causes frequent nighttime awakenings which result in fatigue throughout the day. He also reports that he must remain close to the restroom as he experiences urinary urgency frequently. He reports wearing a condom catheter most of the time. Two years prior to the period on appeal, the May 2010 VA examiner opined that prostate cancer and residuals cause significant occupational effects of decreased concentration, lack of stamina, incontinence, and problems with lifting and carrying. However, by January 2012 VA treatment records show the Veteran's nocturia was improved with medication and occurred three to four times per night. In June 2012 the VA examiner opined that this condition would not preclude physical or sedentary employment as it was not currently active and therefore imposes no functional limitations. However, the examiner also noted that the Veteran changes absorbent material two to four times per day, wears a condom catheter most of the time, voids more frequently than once per hour during the day, and wakes up five time or more per night to void. The July 2019 VA examiner opined that the Veteran would need frequent breaks due to urinary incontinence. Regarding peripheral neuropathy and peripheral vascular disease of his bilateral lower extremities, the Veteran reports that he is unable to stand for prolonged periods which is consistent with the VA examinations of record. However, in his December 2013 notice of disagreement, the Veteran also reported that he cannot sit for prolonged periods. The January 2010 VA examiner noted that his gait was normal, and that lower extremity peripheral neuropathy caused pain; however, the examiner provided no opinion regarding whether this condition impacted work. The June 2011 VA examiner opined that peripheral neuropathy caused no occupational impact. Additionally, the Board notes that the Veteran reported at this examination that he left work due to nonservice-connected knee problems. The June 2012 VA examiner opined that neither condition would prevent light duty or sedentary employment, but that employment requiring prolonged standing or walking should be avoided. Additionally, the July 2019 VA examination similarly opined that he was unable to stand or walk longer than 10 to 15 minutes due to peripheral neuropathy but could perform sedentary work. Additionally, the Veteran reported his peripheral vascular disease has remained the same since 2012, and the examiner opined there was no occupational impact from this condition. Regarding diabetic nephropathy, the June 2012 VA examiner opined that this condition would not preclude light or sedentary employment. The Veteran's symptoms at the time were recurring proteinuria and slight edema. Regarding tinnitus, hearing loss, and erectile dysfunction, the competent medical evidence indicates that these conditions cause no occupational limitations. The Veteran reported at the February 2009 VA examination that he hears ringing in his ears once or twice per month lasting one to two days, during which time he has trouble hearing voices. February 2012 VA treatment records show the Veteran no longer experiences tinnitus with use of his hearing aids, and the July 2019 VA examiner noted that the Veteran's hearing loss and tinnitus have no occupational impact. Additionally, the Veteran alleges, and the medical records show, no occupational impact caused by his erectile dysfunction. See, e.g., June 2012 VA examination. The Veteran was found to be disabled by the Social Security Administration (SSA) effective December 2008 due to peripheral neuropathy and arthritis. However, the Board cannot consider limitations caused by arthritis as the Veteran is not service connected for arthritis. Additionally, unlike the SSA, the Board cannot consider the Veteran's age in determining whether a TDIU is warranted. The Board has considered the combined effect of all service-connected impairments. In sum, the examinations conducted during the appeals period note the Veteran's long-standing history of unemployment and some limitation as to his physical capabilities, but there is no indication that the Veteran is precluded from securing and following substantially gainful occupation consistent with his education, skills, training, and work history. Based on the foregoing, the Board finds that the evidence strongly supports that the combined impact of the Veteran's service-connected disabilities does not physically or mentally preclude him from performing sedentary work. In a recent decision by the U.S. Court of Appeals for Veterans Claims (Court) noted that VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 11. Therefore, consistent with the Court's holding in Withers, the Board has considered how the Veteran's education, training, and work history factor into his ability to perform employment. See Withers, 30 Vet. App. at 150-51. The Board interprets sedentary employment in this case to be based on the ordinary dictionary (Merriam-Webster) definition of the word sedentary, which is "doing or requiring much sitting" and "not physically active." In this case, therefore, sedentary employment is employment that is not physically active and which requires much sitting. A medical dictionary defines sedentary as "sitting habitually; of inactive habits" and "pertaining to a sitting posture." Dorland's Illustrated Medical Dictionary, 1674 (30th ed. 2003). While the Board readily acknowledges that the Veteran's service-connected disabilities do limit some physical activities, in light of the Veteran's overall disability picture, the evidence does not show that he is precluded from securing or following all substantially gainful employment as a result of his service-connected disabilities. See Withers, supra. In this case, the Board envisions potential employment to encompass a wide variety of administrative, office, and clerical jobs, or other forms of employment that would not require the Veteran to spend a significant amount of time on his feet, standing or walking, and which would be performed in a seated position a large majority of the time. The Veteran's service-connected disabilities would also require that he obtain employment that permits regularly scheduled breaks, requires lifting ten pounds or less, and allows the Veteran to remain in close proximity to a restroom. The Board finds these limitations are consistent with a wide range of sedentary employment. The Board further finds that the Veteran has sufficient skills and education to secure and maintain such an occupation. Here, the Veteran has three years of college education and the record reflects that he is capable of a variety of forms of employment that require some degree of writing, basic arithmetic, filing, administrative tasks, or other tasks consistent with such an education. Accordingly, the Board finds that the evidence of record does not indicate that TDIU is warranted from January 12, 2012 to August 9, 2012. See 38 C.F.R. § 4.16(a). For this reason, this claim is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.