Citation Nr: 21024475 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 20-09 880 DATE: April 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Service connection for a brain tumor is remanded. FINDING OF FACT The Veteran’s service-connected disabilities alone do not render him unable to secure and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1963 to August 1967 and from December 1967 to May 1976. These matters come before the Board of Veterans Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Although the RO treated the claim for service connection as a claim to reopen, it is an original claim and will be adjudicated as such. It appears that the Veteran has attempted to file a claim for removal of his gallbladder on the March 2020 VA Form 9. He is notified, however, that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. § 3.1(p), 3.155, 3.160. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to a TDIU is denied. The Veteran previously filed for entitlement to a TDIU and was denied in rating decisions dated October 2013 and June 2016 that he did not appeal. The claim being considered in this decision was received in July 2018. The Veteran claims that his service-connected diabetes and neuropathy, and several nonservice-connected disabilities (heart disease and constant lower back pain), prevent him from securing or following any substantially gainful occupation. He reports that August 1, 2006, was the date he last worked full-time; and that December 24, 2011, was the date on which his disability affected full-time employment and that he became too disabled to work. For reasons outlined below, the Board finds the preponderance of the evidence does not show the Veteran’s service-connected disabilities alone preclude substantial gainful employment and, therefore, the claim is denied. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Since the July 2018 filing of his claim, the Veteran’s service-connected disabilities include diabetic nephropathy with erectile dysfunction, rated 60 percent disabling, diabetes mellitus, rated 20 percent disabling, and peripheral neuropathy of the bilateral lower extremities, each rated 20 percent disabling. The Veteran has a combined schedular rating of 80 percent disabling, effective June 26, 2012. Thus, the Veteran meets the schedular criteria for TDIU. In consideration of the “economic component,” the Board observes that the Veteran reported completing two years of college with no other education or training. The Veteran listed a job working 30 hours a week at Kapolei Golf Course as a golf cart attendant from August 2006 until September 2011, and a job working 19 hours a week at Waikele Country Club as a golf cart attendant from September 2011 until December 2011. He reported losing two weeks and 30 days due to illness from these places of employment, respectively. The Veteran indicated that he had left his last job because of disability and that he had not tried to obtain employment since becoming too disabled to work. The Veteran remarked that he had radiation treatment for prostate cancer from September 2011 to November 25, 2011, and was out of work with no compensation because he only worked part-time. He also remarked that he had nonservice-related heart and back problems. In contrast, information obtained from Waikele Country Club in conjunction with one of the Veteran’s previous claims for TDIU indicates that he was employed there between November 23, 2010, and April 16, 2012, as a cart attendant working five to eight hours a day without any time lost during the preceding 12 months due to disability. The last day he worked was December 24, 2011. It was also reported that he had voluntarily resigned due to a move from Hawaii to Florida. Looking at the “noneconomic” component, the Board observes the Veteran underwent several VA examinations in February 2020 conducted by the same examiner. The examiner concluded that the diabetic nephropathy condition and erectile dysfunction do not cause functional limitations in any work environment and that the lower extremity diabetic peripheral neuropathy and diabetes conditions do not cause functional limitations if the Veteran does sedentary-type jobs. The examiner noted that the peripheral neuropathy condition can cause functional limitations if the Veteran does physical and strenuous type activities at work and symptoms from the lower extremity peripheral neuropathy prevent him from doing prolonged walking and standing. The examiner also noted that the Veteran claimed he had required insulin therapy for his diabetes for 30 years, that his last employment was at a golf course doing physical and strenuous type jobs, that he had to quit working in 2011 because of his heart condition, and that his diabetes mellitus condition can cause functional limitations if he does physical and strenuous activities at work because the physical work can affect the dose of his insulin which can cause hypoglycemia. In short, the Veteran’s service-connected diabetes and diabetic complications cause some physical-ability limitations with strenuous activities at work that may affect the dose of his insulin, which can cause hypoglycemia, and some limitations with prolonged walking and standing. The medical evidence did not identify any mental-ability limitations caused by any of the Veteran’s service-connected disabilities. The February 2020 VA examiner opined that the Veteran had to cease employment at the golf course due to his non-service connected heart condition and not because of his service-connected diabetes or diabetic complications and, indeed, he would be able to do sedentary jobs. In Withers v. Wilkie, the 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 149-150. Here, the Veteran’s education, training, and work history demonstrated that he has the capacity to engage in sedentary occupations such as a golf cart attendant. Indeed, looking at both the employer statement and the February 2020 VA examination, it appears the reason the Veteran left this employment were wholly unrelated to his service-connected disabilities. The Board has considered the physical ability factors noted in Ray, to include the fact that the Veteran’s diabetic neuropathy would preclude prolonged standing or walking, and that his diabetes would preclude strenuous or laborious work. Although the evidence suggests that the Veteran’s service-connected disabilities had some effect on his employability, the preponderance of the evidence does not support the contention that his service connected disabilities are of such severity so as to preclude his participation in any form of suitable work in light of his past work experience and education. Based on the foregoing, entitlement to a TDIU is not warranted. Since the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt is not applicable. See 38 U.S.C. § 5107(b). REASONS FOR REMAND 2. Service connection for a brain tumor is remanded. The Veteran seeks service connection for a brain tumor, claiming it is due to his exposure to herbicides while stationed in Thailand. DoD has determined that U.S. Air Force veterans who served on Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961, and May 7, 1975, may have been exposed to herbicides. In particular, servicemen who had frequent contact with the air base perimeter of any of those air bases during the designated time periods are more likely to have been exposed to herbicides, such as security policemen, security patrol dog handlers, and or members of the security police squadron who regularly walked the perimeter of these bases. If the Veteran is able to submit credible evidence, such as his military occupational specialty, or a performance evaluation, to show he had frequent contact with the air base perimeter, such evidence can be used to establish his in-service exposure to herbicides. Here, the Veteran appears to have been at U-Tapao RTAFB in February 1971 and personnel records indicate that he was assigned to the Power Plants Branch of the Aircraft Division and was a member of a P-3 flight crew at the time. VA treatment records indicate that the Veteran was found to have a pituitary microadenoma on magnetic resonance imaging (MRI) of the brain prior to when the claim was filed. There is no indication from the record that the pituitary microadenoma was removed, although the Veteran reported in January 2020 he was not being followed any longer for the benign pituitary tumor. While the Board is not conceding that the Veteran was exposed to herbicides at this time, it finds remand is needed to obtain an opinion as to whether his benign pituitary tumor is etiologically related to any such exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Obtain a medical opinion on the Veteran’s claim for brain tumor. Following review of the claims file, the examiner is asked to indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s pituitary microadenoma manifested in service or is otherwise related to service, to include the alleged exposure to herbicides while the Veteran was in Thailand. The examiner should explain why or why not specifically addressing the Veteran’s military history, medical history, known risk factors, relevant medical literature, and any other pertinent information relevant to the rendered opinion. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.