Citation Nr: 21029634 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-38 156 DATE: May 14, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran was not rendered unable to obtain gainful employment due to her service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1982 to September 2002. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to a total disability rating based upon individual unemployability (TDIU) The issue of entitlement to a TDIU is part and parcel of an increased rating claim when such claim is raised by the Veteran or the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim for TDIU has been reasonably raised with the Veteran's complaints of cardiovascular issues impacting employment at the September 2019 Board hearing. See September 2019 hearing. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. A total disability rating based upon individual unemployability may be assigned 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. § 4.16(a). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him [or her] from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The test of individual unemployability is whether the Veteran, as a result of his [or her] service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (central inquiry in TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability). "Substantially gainful employment" is that 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). Further, in evaluating a Veteran's employability, consideration may be given to his [or her] level of education, special training, and previous work experience in arriving at a conclusion, but not to his [or her] age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The word "substantially" suggests an intent to impart flexibility into a determination of a Veteran's overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361. The Veteran's service-connected disabilities satisfy the schedular criteria set forth in 38C.F.R. §4.16(a) since December 16, 2005. In the November 2019 Board decision, the claim was remanded to allow the Veteran to submit a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Individual Unemployability. This form may have been already completed, and was updated to the claims file, dated August 2019. The Veteran's occupational history has primarily consisted of working as a system administrator. After leaving this job due to a reduction in force, the Veteran worked as a cashier. See VA Form 21-4192; VA Form 21-8940. In August 2018, the Veteran underwent a VA examination for vascular diseases, including status post stroke and brain aneurysm. The Veteran presented with right sided weakness. The examiner noted that the Veteran's central nervous system disorders do not impact her ability to work. In the August 2018 hypertension examination, the examiner noted that the Veteran's hypertension does not impact her ability to work. In September 2019, the Veteran underwent a VA examination for coronary artery disease and heart failure. The Veteran reported dyspnea and fatigue during various activities. The exam revealed the development of these symptoms to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4mph). In regards to the functional impact on the Veteran's employment, the examiner stated that the Veteran cannot do strenuous activities. Having fully reviewed the electronic appellate record, and in consideration of the Veteran's lay statements and medical records, the Board finds that the Veteran's service-connected disabilities do not prevent the Veteran from securing and following substantially gainful employment. The Veteran's cardiovascular disabilities have not been determined by medical experts to have a functional impact that prevents the Veteran from obtaining and maintaining gainful employment. The Board has placed great probative weight upon the August 2018 and September 2019 VA examiners' review and conclusions regarding the effect of the Veteran's disability upon employment. In adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1Vet. App.164 (1991). The record does not establish that the Veteran could not obtain and follow sedentary employment, or even physical labor employment that offered accomodation for the Veteran's service-connected disabilities. The September 2019 VA examiner noted that the Veteran cannot do strenuous activities. This does not preclude gainful employment because strenuous activities are not required as a condition of employment within the Veteran's relevant work history. Based upon all of the foregoing evidence, the Board finds that the preponderance of the evidence is against entitlement to a TDIU. See 38 C.F.R. § 4.16(b). As such, the Veteran's claim seeking entitlement to a TDIU is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, Associate 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.