Citation Nr: 21027689 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 10-07 729 DATE: May 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability prior to February 21, 2014 (exclusive of the periods when a temporary total rating was assigned) is denied. FINDING OF FACT The Board finds that the pertinent and more probative evidence of the record does not demonstrate that the Veteran's service connected disabilities alone are of sufficient severity to render him unable to secure and maintain substantially gainful employment prior to February 21, 2014. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability prior to February 21, 2014 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.1, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1966 to October 1968. In July 2020, the Board remanded the issue for additional development. The Board finds that there was substantial compliance with the July 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Initially, as pertaining to the Veteran's claim, in a March 2021 rating decision, service connection was granted for sleep apnea and hypertension. Moreover, the Board notes that in the same March 2021 rating decision, TDIU was assigned effective February 21, 2014. That was the date of service connection for multiple disabilities related to Parkinson's disease resulting in a combined 80 percent rating. Nothing herein should be taken as impacting that rating. The earlier period remains on appeal. TDIU The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, pursuant to 38 C.F.R. § 4.16 (b), where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). This cannot be awarded by the Board in the first instance, but only considered after a preliminary referral to the Director of the Compensation service. 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). Consideration may not be given to the impairment caused by nonservice connected disabilities. See 38 C.F.R. §§ 3.34, 4.16, 4.19. Substantially gainful employment is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a Veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Entitlement to a total disability rating based on individual unemployability prior to February 21, 2014. In a January 2008 Veteran's application for increased compensation based on unemployability, the Veteran contends that since March 2004 his service connected disabilities alone are of sufficient severity to render him unable to secure and maintain substantially gainful employment. The Veteran also reported that he worked full-time as a department of corrections officer from 1997 to 2004, prior to retirement reportedly due to diabetic and heart problems. Thereafter the Veteran reported part-time employment at a cataract medical center from November 2007 to present. Regarding education or training, the Veteran reported training at the police academy. Prior to February 21, 2014 (exclusive of the periods when a temporary total rating was assigned), the Veteran is service connected for the following disorders: sleep apnea, rated noncompensably disabling; diabetes mellitus at 20 percent; tinnitus at 10 percent; coronary artery disease (CAD) at10 percent; hearing loss, hypertension, and erectile dysfunction at noncompensably disabling. His combined rating was 40 percent. As the Veteran does not have a single service connected disability ratable at least at 60 percent or more prior to February 21, 2014 (exclusive of the periods when a temporary total rating was assigned), and there are not sufficient additional service connected disabilities to bring the combined rating to 70 percent, he does not meet the schedular requirements for consideration of individual unemployability prior to February 21, 2014. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In a January 2008 private CAD examiner opinion, the examiner noted that the Veteran has had steadily declining health since he retired. The examiner also noted that Veteran underwent a coronary artery bypass and angioplasty stent placement procedure in 1999. The examiner noted that although the Veteran has progressed fairly well since the heart procedures, he has declined in overall health due to his underlying diabetes mellitus and hypertension. In an October 2008 private hearing examination, the examiner diagnosed he Veteran with bilateral hearing loss and tinnitus. The examiner determined that the Veteran's bilateral hearing loss and tinnitus to not preclude him from employment. In an October 2008 VA general examination, the examiner diagnosed the Veteran with diabetes mellitus and coronary artery disease caused the following work restrictions: no more than eight hour work shifts with standard break and free use of the bathroom; no prolonged walking or standing; no lifting objects greater than twenty-five pounds; and no repetitive lifting. The examiner noted that the Veteran could engage in sedentary employment. The examiner also noted that the Veteran worked as a correctional officer and had been unemployed since 2004 when he retired due to age or duration of work. (Advancing age is not for consideration in granting TDIU.) (He also was not service connected for psychiatric impairment at this time.) In an October 2008 VA general examination, the Veteran was also diagnosed with erectile disfunction, but reported no associated employment issues. In an October 2008 VA general examination, the examiner diagnosed the Veteran with hypertension and reported no associated hospitalizations. Concerning functional and occupational limitations, the examiner noted the Veteran's hypertension does not impact the following: chores; shopping; exercise; sports; recreation; traveling; bathing; dressing; or grooming. The examiner did note that the Veteran's hypertension impacts his feeding and toileting, without further explanation. In an October 2008 VA general examination, the examiner diagnosed the Veteran with sleep problems related to his depression. The Veteran reported that since returning from service he worked at a bank, six years as a police officer, and as a correctional officer until 2004 until he retired. The Veteran reported that because of his heart problems and diabetes he retired. The Veteran also reported that since retirement he has traveled with his wife. The Board finds that, during the time in question, while the Veteran's service connected disabilities rendered him unable to perform certain types of labor; nonetheless, the evidence of record did not show he was rendered unable to physically or mentally secure or follow substantially gainful employment as a result of his service-connected disabilities prior to February 21, 2014. As indicated in the record, although the Veteran does not have a college education, he does have police academy training and other occupational experience. The Veteran also has a lengthy full-time work history as a at a bank, six years as a police officer, and as a correctional officer until 2004 until he retired. Overall, the record indicates that the Veteran's post-service work experience is such that the impairment caused by his service-connected disabilities would not prevent him from securing and following substantially gainful employment for the time in question. Moreover, there is no evidence in the record to support a finding that the Veteran's service connected disorders symptoms are manifested by total occupational impairment. As the records shows, the Veteran worked as a correctional officer and had been unemployed since 2004 when he retired due to age or duration of work. Although the Veteran reported that his diabetes mellitus and heart issues caused him to retire, the examiner noted that the Veteran's diabetes mellitus does not prevent the Veteran from engaging in sedentary employment. Moreover, the examiner noted that the Veteran's hypertension does not impact his ability to perform the following: chores; shopping; exercise; sports; recreation; traveling; bathing; dressing; or grooming. The heart disease is not shown to be significantly disabling during this time, nor is the diabetes. Although the Veteran's service connected disorders preclude the Veteran from physically laborious job functions, there is no indication that the Veteran cannot perform light sedentary work of a non-laborious nature. The Board reviewed findings from the Social Security Administration (SSA) that considered the Veteran disabled since 2004. Importantly, the Board emphasizes that it is not bound by SSA disability findings when considering VA benefits, including entitlement to a TDIU. The Board also reviewed and carefully considered the Veteran's lay statements asserting that the severity of his service connected disorders warrants TDIU prior to February 21, 2014. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to TDIU as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lastly, the Board has determined that nothing suggests symptoms outside the norm for rating the service connected disorders. Moreover, prior to February 21, 2014 the evidence of record does not reveal that prior to February 21, 2014 he presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization due to his service connected disorder so as to render impractical the application of extra-schedular consideration for his service connected disabilities. Although the Veteran reports that has been rendered unable to obtain or maintain substantially gainful employment there is no indication in the record that prior to February 21, 2014, the severity of his service connected disorder is primarily due to his service connected disorders. As indicated in the record, prior to February 21, 2014, the Veteran was fully capable of engaging in sedentary employment or light physical activity of a non-laborious nature. As such referral to the Director of the Compensation Service is not indicated. After a full review of the record, the Board finds that the evidence is against the Veteran's claim for TDIU prior to February 21, 2014. As discussed above, the pertinent evidence of record does not demonstrate that the Veteran's service connected disabilities, alone, are of sufficient severity to render him unable to secure or follow substantially gainful employment at any time during this appeal period. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elliot. Harris 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.