Citation Nr: 0817491 Decision Date: 05/28/08 Archive Date: 06/09/08 DOCKET NO. 00-16 440A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Veteran represented by: Robert W. Legg, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from February 1981 to September 1982. This appeal arises from a August 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The veteran and his wife presented sworn testimony in support of his appeal during a September 2003 hearing before the undersigned Acting Veterans Law Judge. The Board of Veterans' Appeals (Board) denied the veteran's claim for TDIU in a July 2006 decision. The veteran appealed to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). The Court in a January 2008 order vacated the July 2006 decision and remanded the veteran's claim to the Board for readjudication and consideration of his claim on an extraschedular basis. In a November 2007 rating decision, the RO increased the schedular disability ratings assigned to impairment resulting from the veteran's service-connected right shoulder disability and his bilateral heel disability. FINDING OF FACT The veteran's service connected disabilities are of such severity as to render the veteran unemployable. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.304, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has concluded the veteran's service connected disabilities have rendered the veteran unemployable. The veteran's service-connected disabilities include hypertension, rated as 40 percent disabling; residuals of dislocation of the right shoulder, rated as 20 percent disabling; and callouses on both heels, rated as 10 percent disabling. In combination the veteran's service connected disabilities are rated as 60 percent disabling. The veteran has asserted he lost his job as a truck driver due to his hypertension. That assertion is supported by an August 1998 Physical Examination for drivers which indicates the veteran was not qualified to drive due to high blood pressure. A review of the claims folder indicates the veteran's occupational history includes working at Walmart and Union Camp as a stacker prior to entering the service. In service he was trained in administrative work. The veteran has reported working as a truck driver for approximately 15 years. There is some question as to the level of education the veteran has completed. At his hearing in September 2003 the veteran reported having a high school education. On his applications for TDIU in October 1996 and January 1999 he circled first having completed two years of college and then only one year of college. He did indicate he had received training as a machinist in the 1980's. In September 1999 the veteran sought assistance from VA Vocational Rehabilitation service. A VA Counseling Report- Narrative Summary reveals the veteran was found to have an employment handicap. His service-connected right shoulder disorder produced limitations that prevented him from fine motor dexterity and use of his hand, lifting heavy objects, reaching overhead, writing, pushing and pulling with his arm. His right shoulder disorder precluded employment as a truck driver or machinist and most vocational training that required use of his arms. After reviewing the veteran's civilian employment and training history the VA counselor concluded he had no acceptable identifiable marketable skills. A January 2001 decision of the Social Security Administration (SSA) awarded the veteran disability benefits. The award was based on a finding the veteran was precluded from gainful employment by severe impairments which included traumatic arthritis of the right shoulder, degenerative disc disease of the cervical and lumbar spines, and hypertension. In October 2005 the veteran was examined by VA. The assessment of his disabilities was that he had hypertension and right shoulder instability which caused moderate impairment and a left foot callus which caused mild impairment. In the opinion of the VA examiner the veteran would be able to perform in a sedentary occupation. The examiner suggested that the veteran needed aggressive treatment of his hypertension, a surgical evaluation of his right shoulder (and surgical correction of his instability). He suggested the veteran was a candidate for vocational rehabilitation. The evidence demonstrates the veteran is unemployable. The question before the Board is whether his unemployability is solely due to his service-connected disabilities. The regulations provide that total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 as 60 percent or more, and that, if there are two or more 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. §§ 3.340, 3.341, 4.16 (2007). The evidence indicates the veteran does not meet the schedular criteria for assigning TDIU as although he has one disability rated at 40 percent, his combined disability rating is only 60 percent. A total rating may also be provided if the veteran fails to meet the schedular requirements if he presents a disability picture which places him in a different position than other veterans with the same percentage of disability. In reaching its determination in this case the Board has followed the analysis of the Court in Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court held that for a veteran to prevail in a claim for individual unemployability benefits, it is necessary that the record reflect some factor which takes his case outside the norm. 38 C.F.R. §§ 4.1, 4.15 (2007). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high schedular rating which is assigned is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether or not the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither non-service-connected disabilities nor advancing age may be considered. 38 C.F.R. § 3.341(a) (1993); Hersey v. Derwinski, 2 Vet. App 91 (1992). The Board is aware that the decision of the SSA is not controlling for VA purposes but has carefully reviewed the medical records supporting that determination. His right shoulder arthritis was considered his primary disability by SSA. It limited his ability to lift, carry, and perform repetitive tasks. While the SSA decision is not controlling it is pertinent to the determination of appellant's ability to engage in substantially gainful employment. Martin v. Brown, 4 Vet. App. 136, 140 (1993). The evidence demonstrates the veteran is no longer able to function in jobs which require manual labor. The VA examiner in October 2005 suggested he would be able to perform in a sedentary job, and then noted he needed medical treatment and recommended vocational rehabilitation. However, the VA Vocational Counselor concluded that the veteran's service connected right shoulder disorder would prohibit him from many of the functions required of an individual in a sedentary occupation, as well. In addition, it was noted in the Vocational Rehabilitation Narrative Report that the veteran had no transferable or marketable skills. In essence the evidence indicates the veteran would have limitations in performing tasks which involve the use of both hands, and would have difficulty standing for long periods due to his left foot calluses. He has uncontrolled hypertension which would prohibit him from working in a stressful environment. His VA treatment records document that his hypertension has affected his vision and balance, and often causes headaches. VA records also include treatment for right shoulder pain. While additional training might result in the veteran obtaining marketable skills, presently there is no evidence that indicates the veteran is able to function in a sedentary job with only his current level of education and training. The opinion of the VA examiner in October 2005 seems to imply that after medical treatment and vocational training the veteran would be able to function in a sedentary work environment. The Board is aware that the veteran did not complete his program of training as outlined by his VA vocational counselor. Nevertheless, upon review, his impairments and past occupational history and training do not support a finding that the veteran has the requisite skills to be able to perform in a sedentary occupation that would not require the use of both arms, standing for long periods, or lifting and carrying. The Board has therefore concluded that the limitations imposed by his service-connected right shoulder disorder, hypertension, and left foot pain have rendered the veteran unable to secure and retain substantially gainful employment. The evidence thus supports a grant of the benefit sought. ORDER A total disability rating based on individual unemployability due to service-connected disability is granted. ____________________________________________ HEATHER J. HARTER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs