Citation Nr: 1027075 Decision Date: 07/20/10 Archive Date: 07/28/10 DOCKET NO. 09-12 121 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, J.N. and B.B. ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from June 1986 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the RO that, in part, denied entitlement to TDIU. In June 2009, the Veteran testified during a hearing at the RO before the undersigned. A transcript of the hearing is of record. FINDINGS OF FACT 1. All evidence necessary for adjudication of this claim have been obtained by VA. 2. The Veteran's service-connected disabilities include: multiple sclerosis and anxiety disorder; each rated as 30 percent disabling, disc protrusion at T7-8, tinnitus, headaches, and carpal tunnel syndrome of the right and left upper extremity; each rated as10 percent disabling, and right hip strain, rated as compensable. The combined rating is 70 percent. 3. The Veteran has two years of college education, has occupational experience in automotive maintenance, and currently works approximately 30 hours a week as an automotive parts salesman. 4. The evidence for and against the Veteran's claim is in relative equipoise on the question of whether his service- connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met since he filed his claim on July 3, 2008. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.3, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.326 (2009); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claim, a letter dated in July 2008, fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim for TDIU; of what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran's service treatment records and all VA and private medical records identified by him have been obtained and associated with the claims file, to the extent possible. The Veteran was examined by VA in September, October, and December 2008, during the pendency of the appeal, regarding the severity of his service-connected disabilities. He also testified during the hearing at the RO before the undersigned in June 2009. Under the circumstances of this case, the Board finds that VA has complied with the procedural requirements of 38 U.S.C.A. §§ 5104, 7105(d), and 38 C.F.R. § 3.103(b). II. Factual Background and Legal Analysis In July 2008, the RO received the Veteran's formal application for a TDIU. He reported that he was unable to work due to MS that affected him full time in December 2007. He said that he became too disabled to work in January 2008. The Veteran reported completing two years of college education, and worked in auto parts sales since June 2006. He said that his job was not difficult and was fairly easy on his body but his symtoms and problems made it extremely difficult to perform his job. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be 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 a result of a single service- connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when the earned annual income of the veteran does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person, and consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). Pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. In determining whether an individual is unemployable by reason of service-connected disability, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro v. Derwinski, 1 Vet. App. 326, 331- 332 (1991). Age may not be considered a factor. 38 C.F.R. § 3.341 (2009). Unemployability associated with advancing age or nonservice- connected disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2009). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In this case, three of the Veteran's service-connected disabilities are derived from his multiple sclerosis (MS). That is, his anxiety disorder and headaches have been identified by competent medical opinion to be associated with his MS. The combined value of the three related service-connected disabilities is 60 percent. 38 C.F.R. § 4.25. Therefore, under the above-cited regulations, the three disabilities may be considered as a single entity resulting from a common etiology. 38 C.F.R. § 4.16(a). Thus, the combined 60 percent rating, for purposes of consideration of a TDIU, is viewed as a single disability rated as 60 percent disabling. The combined rating for all of the Veteran's service-connected disabilities is 70 percent. Therefore, the Veteran satisfies one element of the schedular criteria for a total disability rating based on individual unemployability. However, the evidence must also show that the Veteran is, in fact, unable to secure or follow a substantially gainful occupation as a result of his service- connected disabilities. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes this case outside the norm. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. However, the ultimate question is whether the Veteran 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). After a review of the evidence of record, the Board finds that the evidence for and against the Veteran's claim is in relative equipoise on the question of whether the Veteran's service- connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background. VA examiners in 2008 did not find that the Veteran's service-connected disabilities were totally disabling. The clinical and diagnostic findings on VA examinations in September, October, and December 2008 reflect that, while the Veteran experienced recurring headaches and had intermittent left sided weakness and blurred vision, he had essentially full use of his upper and lower extremities, could drive his car, and was generally able to perform the routine tasks of his employment, albeit, with some concessions when experiencing increased fatigue. The Veteran's corrected visual acuity was 20/20, bilaterally, and his anxiety disorder was not shown to be significantly disabling. However, according to a May 2009 VA neurology note, the Veteran was evaluated regarding his MS and was noted to have marked worsening of his fatigue and increased numbness. It was noted that the Veteran still worked at an auto parts store but "[d]espite having a sedentary job he is exhausted and completely fatigued by the end of the day and does not have any energy to really participate in other activities beyond that point". The VA clinic neurologist opined that "[the Veteran] is a good candidate for full medical disability on the basis of his MS primarily based on the issue of increasing severity of MS associated fatigue and mobility concerns and increasing disability". The VA neurologist further stated that the Veteran had "severe MS associated fatigue as well as physical and motor impairments" and reiterated that the Veteran was a candidate for long term medical disability on the basis of his MS. According to the medical specialist, the Veteran's "level of MS associated fatigue is such that working a part or full-time schedule at this point would exhaust him beyond the point where he can function appropriately from a neurologic stand point". Partially weighing against the Veteran's claim is the fact that he has been gainfully employed in a job consistent with his occupational experience since his discharge from service. The record reflects that the Veteran worked for the same automotive parts company since his discharge from service in 2006. While he had problems maintaining a normal 40-hour work week he, nevertheless, is still employed and works significantly more than half-time. A review of his earnings statement in December 2008, shows that the Veteran used approximately 113 hours of sick leave and approximately 95 hours of vacation pay in 2008; 40 hours of which were reported by his employer to have been actual vacation time. (See January 2009 Store Mgr letter). Correspondence from his employer, received in January 2010, indicates that the Veteran worked an average of less than 32 hours a week from December 2008 through December 2009, and that he was being reclassified from a full-time to part-time employee based on company policy. During his June 2009 Board hearing, and in written correspondence to VA during the course of this appeal, the Veteran asserted that he was currently employed, but had difficulty maintaining a 40- hour work week primarily because of fatigue associated with his MS, and had reduced his work schedule to 32 hours a week in the Spring of 2008. (Transcript at page 13). He testified that, even with the reduced hours, he had difficulty achieving a full work week and used all of his sick leave and most of his vacation time during the year because of his MS. The Veteran reported that his employer was very understanding and made concessions at work, including allowing him to use a stool to rest when needed, to do less strenuous tasks when he was fatigued, and to allow him to accumulate negative sick leave. As such, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a TDIU are met since he filed his claim on July 3, 2008. ORDER Entitlement to a TDIU is granted from July 3, 2008. ` ____________________________________________ D.J. DRUCKER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs