Citation Nr: 21011009 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 12-25 356 DATE: February 26, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence fails to establish the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from September 1966 to September 1968, including in the Republic of Vietnam from February 1967 to February 1968. He also had additional U.S. Army National Guard (ANG) service from July 1975 to October 1984. The Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development in In January 2019 and October 2020. There has been substantial compliance with the Board’s remand directives and no further development is required. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to TDIU. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Rating boards are to refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements. 38 C.F.R. § 4.16 (b). In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the Veteran’s occupational 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. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).The Veteran is service connected for diabetic neuropathy with hypertension (60 percent), residuals of right shoulder fracture (20 percent), diabetic mellitus type II (20 percent), residuals of prostate cancer (10 percent from September 1, 2011 and 20 percent thereafter), and erectile dysfunction (0 percent). Here, the Veteran’s is in receipt of a single disability rated at 60 percent along with two other disabilities, which has yielded a combined rating of 60 percent. Such is sufficient to meet the schedular requirements of 38 C.F.R. § 4.16 (a). See Gary v. Brown, 7 Vet. App. 229, 231 (1994). The remaining inquiry is whether the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran contends that he is unable to obtain and maintain substantially gainful employment. He worked as a production specialist from January 1964 to June 2008. His duties varied from lifting monitors and printers to assembling connectors for computers. The Veteran underwent VA examinations in June 2008, January 2010, August 2014, January 2015, July 2015, August 2015, January 2017, and October 2019. Notably, none of the VA examiners who have evaluated the Veteran opined that any of his service-connected disabilities have rendered him unable to secure or follow gainful employment. On the contrary, an October 2020 VA examiner opined in great detail that he could not find any physical restriction on the Veteran’s employability. The examiner stated that the Veteran should be capable of seated work with breaks and light physical activity. The Veteran’s extensive efforts to find employment, history of part-time work, and church activities also suggest that he has retained the capacity for significant vocational activities. There is no clear evidence that the Veteran’s service-connected disabilities have, at any time during the period on appeal, contributed to such severe impairment that they would preclude him from being able to secure or maintain gainful employment. Additionally, the record notes that the Veteran is capable of seated work with breaks and/or light physical activity. He is not limited by any mechanical dysfunction such as limited grasping, typing, or reaching. As stated above, the Veteran’s work history and VA examination reports strongly suggest he has the mental capacity to perform sedentary work. As such, there is no indication that the Veteran’s service-connected disabilities impact his ability to perform sedentary work. Moreover, the Board also notes that a schedular rating itself is recognition that a claimant’s industrial capacity is impaired to some degree. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Generally, 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 injury. 38 C.F.R. § 4.1; Van Hoose, supra. Although the Veteran’s service-connected disabilities may have hindered some aspects of employment, a combined compensable schedular rating of less than 100 percent implies a degree of interference with employment that would not preclude a particular claimant from securing and following all substantially gainful employment. In evaluating the Veteran’s claim for a TDIU, the Board also recognizes that the Social Security Administration (SSA) has determined that the Veteran is disabled pursuant to SSA rules and regulations. Specifically, the record indicates that the Veteran was found disabled by an Administrative Law Judge beginning in November 2008. Although disability determinations made by SSA may be pertinent to claims for VA benefits, they are not controlling for VA determinations. Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). Despite some similarities between the two disability regimes, there are “significant differences in the definition of disability under the Social Security and VA systems.” Id. In its determination, SSA considered the Veteran’s age and history of depression in determining that he was disabled. These Guidelines are set out in Appendix 2 to Subpart P of 20 C.F.R. § 404 and, of particular relevance here, explicitly take into consideration a particular claimant’s age in directing a finding that such a claimant is disabled. To illustrate, the Rule under which SSA found the Veteran to be disabled applies only for claimants who are advanced in age, who are high school graduates or more, and who have skilled or semiskilled previous work experience. “Advanced age” is defined as 55 and over. The Board notes that VA is strictly prohibited in considering age in determining claims for unemployability. 38 C.F.R. § 4.19. Moreover, in contrast to SSA, VA may only consider the vocational impact of service-connected disabilities in deciding claims for unemployability and cannot consider the effects of the Veteran’s non service-connected sleep apnea, hearing loss, bulging disc, hyperlipidemia, asbestosis, knee problems, depression, nor anxiety on his employment. Therefore, SSA’s reliance on the Veteran’s non service-connected disabilities, in addition to SSA’s explicit reliance on the Veteran’s advanced age render its determination of little probative value in determining the Veteran’s claim for entitlement to a TDIU. (Continued on the next page)   In light of the Court’s guidance provided in Ray v. Wilkie, the Board finds that the Veteran can secure and follow a substantially gainful occupation. The Veteran is capable of performing seated work or light duty work (i.e. work at a VA regional office). Medical records note that the Veteran performed custodial services and requested more hours. The Veteran’s service-connected disabilities do not impact his ability to engage in sedentary or light duty work. In sum, the Veteran’s combined service-connected disabilities do cause some impairment, but the record including lay and medical evidence, does not support that these disabilities alone render him unable to secure and follow substantially gainful employment. Therefore, the claim is denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.