Citation Nr: 21013019 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 18-00 293 DATE: March 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The evidence is insufficient to show that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from January 1969 to January 1971. In a May 2019 Decision, the Board concluded that TDIU was not properly on appeal before the Board. In a September 2020 Joint Motion for Remand (JMR) the parties concluded that that determination was erroneous and remanded the claim back to the Board. 1. Entitlement to a total disability rating based on individual unemployability. The Veteran asserts that his service-connected disabilities make him unable to secure or follow a substantially gainful occupation. Schedular TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. See 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connected for posttraumatic stress disorder (PTSD) evaluated as 70 percent disabling, a left arm shrapnel wound evaluated at 30 percent disabling, tinnitus evaluated as 10 percent disabling, a musculocutaneous nerve injury evaluated as 10 percent disabling, bilateral hearing loss evaluated as noncompensable, and a left arm shrapnel scar evaluated as noncompensable. The Veteran’s combined rating is 80 percent. For the entire appeal period, the Veteran met the schedular requirements for TDIU. The issue that remains disputed is whether the Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment solely due to his service-connected disabilities. To this end, the preponderance of the evidence is against the claim. In the Veteran’s January 2009 TDIU application, he reported that he last worked in December 2008 after working as a mold maker for 25 years. The February 2009 examiner concluded that the Veteran’s PTSD does not make him unemployable given the fact that he had worked with his PTSD for the past 30 years. The examiner noted that the Veteran reported he only recently stopped working because of layoffs due to economic downturn and not because of PTSD. The examiner further noted that the Veteran worked with his shell fragment of the left arm for 25 years. A VA February 2009 mental health treatment note also indicates that Veteran reported that his company laid a lot of people off due to the economy. He reported that he received a severance package and will be able to draw a pension when he becomes of age. A February 2009 VA treatment note indicates the Veteran listed bowling and woodworking as his activity and leisure pursuits. A February 2011 SSA determination found the Veteran to be disabled based primarily on his nonservice-connected severe back impairment. The adjudicator concluded that the Veteran’s service-connected acquired psychiatric disorder and hearing loss minimally interfered with his ability to perform basic work-related activities. The adjudicator relied in part on a May 2009 psychiatric assessment from Dr. D.U. which indicated that while the Veteran may have some difficulty maintaining social functioning, he did not have any major restriction of activities due to a mental disorder. A March 2013 VA treatment note indicates the Veteran reported he works part time as a handyman for the elderly. March 2014 VA treatment note indicates the Veteran has been retired for several years and keeps busy with woodworking. He also reported taking up golf because his wife golfs. A January 2017 VA treatment note indicates the Veteran is retired by continues to keep his rental properties up. He further reported he has a wood working shop for his spare time. During the October 2017 VA examination, the Veteran reported that his service-connected arm symptoms requires him to limit demanding tasks such as lifting and carrying. However, sedentary tasks such as sitting and talking are unlimited. During the October 2017 VA audiological evaluation, he reported that the functional impact of his hearing loss is that he must ask his wife to repeat things. During the October 2017 VA psychological evaluation the examiner concluded that the Veteran’s psychiatric condition resulted in occupational and social impairment due to mild or transient symptoms that reduce work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. During an October 2019 VA examination, the Veteran reported difficulty working above his head due to his left arm condition. During the October 2019 peripheral nerve VA examination, the Veteran reported that the nerve damage associated with his arm condition did not impact his ability to work. The Board finds the preponderance of the evidence is against a finding that the Veteran was unable to obtain and maintain substantially gainful employment solely due to his service-connected disabilities. The evidence consistently shows that the Veteran was laid off after a long career as a mold maker due to economic downturn. The evidence also shows that the Veteran lives a very active lifestyle that included bowling, woodworking, golf and serving as a handyman for the elderly. While an SSA decision is not binding on the Board, the Board finds it significant that the Veteran was found to be disabled based on his severe back impairment, which is not service connected. (Continued on the next page)   The Veteran’s limitations due to his service-connected disabilities are considered in the combined disability rating he receives. Indeed, the assignment of the 80 percent schedular rating is recognition of the functional limitations caused by his disabilities and that rating contemplates the severity and overall impact the symptoms have on the Veteran’s life. As such, the evidence does not persuasively support a finding that the Veteran was unable to obtain and maintain substantially gainful employment solely due to his service-connected disabilities. See 38 C.F.R. § 4.19. The Board finds that the claim for TDIU must be denied. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Williams, 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.