Citation Nr: 21027980 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-26 594 DATE: May 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected lung condition precludes him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant is a Veteran who served on active duty from August 1958 to May 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a TDIU TDIU is 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. 38 C.F.R. § 4.16(a). For these purposes, disabilities of common etiology are considered a single disability. Id. Even if the Veteran is unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. 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. See 38 C.F.R. § 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to September 30, 2019, the Veteran is in receipt of service connection for asbestosis with emphysema, with a 60 percent evaluation thereby meeting the percentage requirements for TDIU. As of September 30, 2019, a 100 percent rating was assigned. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the United States Court of Appeals of Veterans Claims (Court) held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. In May 2014, the Veteran reported that he was unable to work due to his service-connected lung disorder. In June 2014, his formal application was received. The Veteran has reported his asbestosis with emphysema had a significant impact on his ability to secure employment. At an April 2014 examination, the Veteran reported walking a mile a day, occasionally needing to stop for a rest. He reported occasional wheezing and coughing at night. He was using albuterol as needed, that does help. He was a safety specialist for NASA, prior to that he worked for OSHA. He had retired 6 years prior for non-medical reasons. He reported being unable to do heavy work due to dyspnea, and fatigue. He had no limitations in standing or sitting. He was limited to lifting 10 to 15 pounds. In a May 2014 a statement from A. G., his partner, she reported over the past twenty-one years, she watched the Veteran's health decline. She reported gradually he was able to do less and less work around the home, and 8 years ago hired a gardener, handyman, and someone to wash windows. She stated he enjoyed his position as a safety inspector for NASA, however his health continued to deteriorate with increased congestion and shortness of breath, and bending and stopping, which made him dizzy. He requested part-time work in 2007, until his company (Consolidated) eliminated the part-time position. In the May 2014 statement, the Veteran reported working as a safety specialist for Consolidated, at NASA from 1999 to 2007. He reported being trained in construction safety, and his job would require him to climb ladders, scaffolds, and trenches. He stated he could no longer do that type of work. He was required to take inhalers to treat his asbestosis with emphysema. He reported in 2006 he started to work part-time, four hours per day, and in 2007, being forced to retire. In the Veteran's VA Form 21-8940, his formal application, he noted working as a safety inspector for Consolidated Safety at NASA, from 2000 to 2007. He had a degree in Occupational Safety and Health. In a September 2014 opinion, the examiner noted the Veteran had diagnoses of CAD, mild neoplasm, epiretinal membrane, dyslipidemia, hypertension, senile cataracts, blepharitis, osteoporosis, hematuria, orchalgia, hypothyroidism, and abdominal aortic aneurysm. Due to his asbestosis with emphysema only, he could sit at a desk, file papers, talk on the phone, perform customer service and type. He could also drive a vehicle. He could walk a mile a day, but would have to stop for a rest to catch his breathe. He did not need any assistive walking device, or supplemental oxygen. He could go upstairs slowly. He could read a book work and play on a computer. He may have difficulties performing physically strenuous and demanding jobs as he would likely have dyspnea on exertion at various levels. He could sit and stand with some periods of rest in between. In subsequent 2015 statements, the Veteran reported being unable to walk up more than three stairs without resting for a minute before proceeding. He reported avoiding stairs. He reported being unable to do yard work, as he would get dizzy and out of breath. He related that he had a chronic cough and could not exert himself at all At a May 2017 pulmonary consult visits, it was noted the Veteran felt he could no longer walk briskly. Over the next few months, he reported decreased ability in his functioning. He was able to do some household activities. At a February 2018 visit he was seen with complaints of memory loss. He believed he suffered from Alzheimer's dementia. He reported being a NASA safety specialist, and a lab chemist for Dupont. He retired in June 2007. At a September 2019 examination, he reported shortness of breath, and using multiple inhalers. He had shortness of breath with walking more than 50 to 100 feet, and then having to rest. A request was made for Social Security Administration (SSA) records, and in January 2021 a response was received indicating there were no records available for review. Requests were made for records from the Veteran's employer Consolidated, however, a response was not forthcoming. The Veteran has experience in occupational safety, last working in 2007. His emphysema with asbestosis resulted in physical limitations, and impacted his ability to perform physically strenuous work. The medical opinion in 2014 indicated that the Veteran at that time was capable of sedentary work. However, the Veteran indicated that he was unable to find or maintain work due to his lung disorder which precluded all work since he had problems breathing and dizziness. His ability to effectively function due to his service-connected lung disorder has progressively decreased over time. In this case, the Veteran meets the threshold requirements for a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In viewing the medical evidence of record, as well as the Veteran's statements, and the lay evidence, the Board finds that a TDIU is warranted. In considering his lung disorder, the Board finds that the Veteran is unemployable based on the nature and severity of the disability alone. The Board has considered the nature of the Veteran's education, special training, and previous work experience without considering his age or any impairment caused by any nonservice-connected disabilities. The medical evidence demonstrates considerable lung impairment. Although the VA examiner indicated in 2014 that sedentary employment was possible, the Board finds credible the lay evidence which demonstrated that gainful employment has been precluded. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C.A. § 5107. The Board has resolved all reasonable doubt in this case in the Veteran's favor. Accordingly, a total disability rating based upon individual unemployability due to service-connected lung disability is warranted. J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.