Citation Nr: 21012896 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 05-20 731 DATE: March 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT During the applicable appeal period, the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155, 3.340, 3.341, 3.400, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1957 to September 1959. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2019 decision the Board denied entitlement to a TDIU. The Veteran appealed. The United States Court of Appeals for Veterans Claims (Court or CAVC) granted the parties’ September 2020 Joint Motion for Remand (JMR) and remanded the matter to the Board for action consistent with the JMR. In the JMR, the parties found that the Board did not adequately address the Veteran’s favorable evidence. 1. Entitlement to a TDIU VA will grant a total disability rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing or following a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the securing or following of a substantially gainful occupation. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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. § 4.16(a). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). Substantially gainful employment is 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(a). “Substantially gainful employment” is not currently defined in VA regulations. However, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16(b) as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In other words, the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. The Veteran filed a claim for a TDIU on May 20, 2002. He is currently service connected for sinusitis rated at 30 percent, allergic rhinitis rated at 30 percent, tinea cruris rated at 10 percent, tinnitus rated at 10 percent, bilateral sensorineural hearing loss rated at 10 percent, and internal hemorrhoids rated at 0 percent. His total combined rating is 60 percent effective from May 13, 2015. Even if his sinusitis, allergic rhinitis, and tinea cruris are deemed to be considered one disability for TDIU purposes, the most probative evidence of record does not show he is unemployable solely due to his service-connected disabilities. The Veteran indicates that he has a history of self-employment; however, he states that he has not been employed since 1975. He has a history of working as a cabinet maker and completed one year of high school. Upon review of the Veteran’s claims file, the Board observes a March 1982 letter from Dr. H. that concluded that the Veteran is unemployable in his primary occupation due to the nature of the chemicals to which he is necessarily exposed as a carpenter and which aggravate his respiratory condition. Also, in the file is an October 1982, letter from Dr. C. that noted the Veteran’s “asthma is totally disabling.” Furthermore, an October 1982, letter from Dr. G. documents the Veteran “should not be exposed to irritating odors or heavy physical work. Therefore, he is at present incapacitated for his job as a carpenter.” Finally, a December 1982, Social Security Administration (SSA) Decision, documents that at the SSA disability hearing the Veteran testified that he was incapacitated from his carpentry job, because “[h]e must stay away from smoke at all times. He has difficulty sleeping and gets very tired during the day. He wheezes and his back hurts from frequently clearing his throat. In addition, he has frequent headaches, and gets attacks whenever he laughs.” It was also noted that the Veteran even tried to return to work; however, his effort was short-lived due to exacerbation of his illness. Also of record is a November 2015 letter from Dr. F. that stated the Veteran has been treated for recurrent asthma, bronchitis, sinusitis, and rhinitis, which have been difficult to manage over the years, and due to all of these conditions, the Veteran cannot work at any type of job and should be entitled to full disability benefits from the VA. Although the letters/opinions appear to be an endorsement that the Veteran was unable to obtain and maintain substantially gainful employment, the Board finds that these notations do not provide any adequate explanations regarding functional impairment or supporting details to demonstrate the Veteran’s unemployability solely due to his service-connected disabilities. As such, these opinions are of very limited probative value. Furthermore, the statements by the private medical providers indicate that the Veteran’s unemployability resulted from service-connected and nonservice-connected disabilities. Again, the question is not whether the Veteran is able to work, the question is rather if the Veteran’s service-connected disabilities, notwithstanding his age and any nonservice-connected problems, could work. Neither asthma, nor bronchitis, are currently service connected. Notably, the RO attempted to schedule the Veteran for VA examinations in June 2016, in order to determine if the current asthma and bronchitis disabilities were secondary to his service-connected sinusitis and rhinitis. The Veteran refused to attend the VA examination as he reported he was going to Italy. See June 2016 VA exam cancellation correspondence. In several opinions of record, to include the most recent June 2018 VA opinion, the examiner opined that it is not at least as likely as not that the individual effects of the Veteran’s service-connected disabilities of hemorrhoids, tinea cruris, tinnitus, bilateral hearing loss, sinusitis, and allergic rhinitis preclude him from obtaining or maintaining employment, nor did they did impact his ability to secure and follow a substantially gainful occupation during the time period from May 2002 to the present. Additionally, it is not at least as likely as not that the combined effects of all his service-connected disabilities preclude him from obtaining or maintaining employment, nor did they collectively prevent him from securing and following a substantially gainful occupation during the period from May 2002 to the present. These opinions are highly probative as to the functional impairment caused by his service-connected disabilities. The Board has considered the Court’s holding in Ray v. Wilkie, which, as noted above, provided guidance on the means of the phrase ability to “secure and follow” such employment. The Veteran, without regard to advancing age and nonservice-connected disabilities, can perform the physical and mental actions required for substantial employment during the applicable appeal period. There is no question that during the appeal period, the Veteran’s service-connected disabilities had some impact on his employability. However, the 60 percent schedular evaluation in effect during that timeframe recognizes industrial impairment resulting from his service-connected disabilities. Nevertheless, based on the evidence set forth above, the preponderance of the evidence is against finding his service-connected disabilities alone are of such severity to preclude his participation in any form of substantially gainful employment at any time during the appeal period. Further, the question of entitlement to a TDIU is not whether the Veteran can work in his previous employment or in work similar to his previous employment. It is a question of whether his service-connected disabilities alone preclude him from securing and maintaining substantially gainful employment. Although the Veteran sincerely believes his service-connected disabilities render him unemployable, he is not competent to determine whether he meets the criteria for a TDIU. Regardless, the decision of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that “applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.”) The Board has the ultimate authority to decide whether the Veteran is employable. The Board finds that the most probative evidence does not show that the Veteran was unable to secure or maintain substantially gainful employment due to his service-connected disabilities alone. Therefore, the Veteran’s claim for TDIU is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.