Citation Nr: 22011983 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-40 148 DATE: March 2, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran is not rendered unable to obtain and sustain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1965 to October 1965. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously remanded by the Board in October 2021 and has since been returned for further adjudication. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. 38 C.F.R. § 4.16(a). The Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected sleep disorder, migraine headaches, maxillary and frontal sinusitis, fracture of the nose, tinnitus, allergic rhinitis, and bilateral hearing loss. 38 C.F.R. § 4.16(a). On his June 2016 application for unemployability he reported his sinusitis, nose fracture, and mental condition prevents him from following a substantially gainful occupation. The Veteran reported completing one year of college. He reported he last worked full-time in 2000 as a police officer. The Veteran presented for a VA examination in July 2015, January 2016, September 2018, October 2019, and March 2021 to assess the current severity of his service-connected sinusitis and rhinitis, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported prostrating attacks that occur once a month but that are not productive of severe economic inadaptability. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported there was no functional impact. Next, the Veteran presented for a VA examination in September 2012, September 2018, and May 2019 to assess the current severity of his service-connected headaches, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported snoring, nasal congestion, headaches, and sinus pressure. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported there was no functional impact. The Veteran submitted a private examination in August 2015 where the examiner stated that the Veteran's headaches and musculoskeletal disorders make him unable to work. However, the examiner did not provide a supporting rationale and further the Veteran is not service-connected for any musculoskeletal disabilities other than residuals of a nose fracture. The Veteran presented for a VA examination in November 2019 to assess the current severity of his service-connected hearing loss and tinnitus, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported difficulty understanding conversations, but no occupational functioning effects were reported. When asked to describe the functional impact the Veteran's tinnitus has on his ability to work the examiner reported there was no functional impact. The Veteran presented for a VA examination in April 2012 to assess the current severity of his service-connected nose fracture, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported there was no functional impact. Finally, the Veteran presented for a VA examination in October 2019, April 2021, and November 2021 to assess the current severity of his service-connected sleep disorder, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported snoring and daytime hypersomnolence. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported there was no functional impact. Treatment records are not in significant conflict with findings during VA examination. Taken as a whole, the Veteran's symptoms do not suggest he was unable to obtain and maintain employment. Given the Veteran's education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers the Board does not consider this level of impairment as one that would preclude employment. The Board considered the Veteran's lay statements that his sinusitis, nose, and mental condition make it difficult to work. However, the Veteran is not service connected for any mental condition, so any impact his mental condition has on his ability to work cannot be considered. Additionally, although a private August 2015 examination stated his headaches and musculoskeletal disorders make him unable to work, there was no rationale for this opinion. The Veteran is also only service connected for a nose fracture which does not impact his ability to work, and he is not service connected for any other musculoskeletal disorders that would impact his ability to work. As such, the Board assigns little probative weight to this opinion. The Board acknowledges that the Veteran believes his physical limitations would make it difficult to work. However, after review of the evidence of record the Board finds that the Veteran's functional limitations would not preclude employment. Based on all the evidence, the Board finds that the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Thus, a TDIU is not warranted. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.