Citation Nr: 18139647
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 11-15 322
DATE:	September 28, 2018
ORDER
Entitlement to individual unemployability is denied.
FINDING OF FACT
The Veteran’s service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his educational background and occupational experience.
CONCLUSION OF LAW
The criteria for entitlement to individual unemployability have not been met.  
38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active military service from August 1969 to December 1971.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision of the VA Regional Office (RO) in Des Moines.
In March 2014, the Veteran testified at a hearing conducted before the undersigned. A transcript of the hearing has been associated with the claims file.
1. Entitlement to individual unemployability
Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2).
The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of meeting the percentage threshold for TDIU eligibility, disabilities of one or both lower extremities, including the bilateral factor; disabilities resulting from a common etiology or a single accident; or disabilities affecting a single body system are considered as one disability. 38 C.F.R. § 4.16(a). 
Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran’s education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran’s advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
In the current appeal, service connection has been granted for posttraumatic stress disorder, evaluated as 50 percent disabling on January 28, 2010; gastroesophageal reflex disease (GERD), evaluated as 10 percent disabling prior to November 9, 2015, and as 30 percent disabling thereafter; and postoperative laparotomy scar for ruptured jejunum, evaluated as zero percent disabling or noncompensably disabling on December 11, 1971. The Veteran’s combined rating is 70 percent. As such, during this appeal, the Veteran meets the criteria for consideration for entitlement to TDIU on a schedular basis under 38 C.F.R. § 4.16(a). 
The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19.
During a VA examination in January 2011 for PTSD, the examiner stated that the Veteran had a long history of changing jobs frequently and not staying on a job for more than 2 to 3 years. He first worked on an automotive assembly line, then as a dynamometer test, and subsequently did solar and geothermal research and built special cycles as an engineer. The examiner stated that the Veteran described himself as a goldsmith for most of his life, but that he had not worked in the last 5 or 6 years, and that his last job was doing carpentry work in 2003 or 2004. The Veteran also attended community college for 1.5 years. The examiner opined that it was difficult to separate the degree to which the Veteran’s physical and psychological symptoms affected his performance, but the examiner inferred that the symptoms of PTSD by themselves did not seriously impact his ability to be employed. The Veteran stated with pride his accomplishments in jobs as an engineer and goldsmith. The examiner concluded that the Veteran was employable and, within limited settings, could work with moderate contact with the public and loose supervision.
During a February 2011 VA examination for GERD, the Veteran stated that he had been a master goldsmith jeweler, but had not been able to find work for his usual occupation, so he worked odd jobs such as carpentry and plumbing, but only for 8 to 12 hours a week. The examiner opined that the Veteran’s GERD would have no specific impact on his employability.
The Veteran underwent a VA examination for PTSD in August 2011. The examiner opined that the Veteran retained the cognitive, emotional, and behavioral capacity to do simple work tasks in a loosely supervised environment and within his physical limitations. The Veteran had been doing community service work for the Forest Service and volunteering at his church.
In May 2015, the Veteran underwent a VA examination for small bowel obstruction.  The examiner opined that the Veteran likely did not have any small bowel obstruction, but did not otherwise comment on the Veteran’s employability.
During a VA mental health examination in April 2017, the examiner opined that, from a psychiatric standpoint, due solely to the veteran’s service-related PTSD, the Veteran did not have any functional impairments that required changes in his work environment. The Veteran reported a very successful career in various fields, including a 30-year career as a jeweler and goldsmith. He denied ever having been fired and stated that he got along with others quite well. With regards to more recent employment, the Veteran stated that he had worked building homes (remodeling as well as building new homes) and was in the process of making plans to build his own home. He stated that he had been very successful and retired solely due to back problems. When asked about relationships with others during his building business, he stated that he got along with others “terrific” and reported that he completed all work for the homes on his own. Consequently, the examiner stated that the Veteran’s service-connected disabilities did not preclude him working or seeking employment.
During the same April 2017 examination, the Veteran also underwent a physical examination for GERD. The physical examiner opined that with regard to the Veteran’s service-connected physical disabilities, the Veteran could be employed in arduous or strenuous physical work. The examiner stated that, currently, the Veteran’s service-connected physical condition had no material effect on any kind or type of work and did not preclude him from any physical or sedentary work.
In summary, there is no competent evidence of record suggesting that the Veteran’s service-connected disorders, in and of themselves, preclude him from securing or following a substantially gainful occupation. This matter has been addressed in a series of VA examinations between 2011 and 2017, but at no time has any VA examiner or any other trained and credentialed medical or mental health professional offered the opinion that a substantially gainful occupation is precluded by the three service-connected disabilities.  
The Board has given full consideration to the Veteran’s assertions to the contrary.  That said, the Veteran lacks the medical training or credentials to competently ascertain that a discrete group of disabilities is of sufficient severity as to preclude him from securing or following a substantially gainful occupation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His opinion in this regard is accordingly of very limited probative value, particularly in comparison to the opinions offered by the noted VA examiners.  
While the Board acknowledges that the Veteran’s service-connected disabilities have been shown to cause a significant degree of interference with his employability, such interference is fully contemplated by the individually assigned disability ratings and the combined 70 percent evaluation. 
Based on the foregoing, the Board finds that the Veteran’s service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his educational and employment background. Accordingly, the Board concludes that the criteria for TDIU are not met, and the claim must be denied. 
(Continued on the next page)
 
As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim of entitlement to individual unemployability is denied. See 38 U.S.C. §5107.
 
A. C. MACKENZIE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Evan Thomas Hicks 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

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