Citation Nr: 0811550 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 07-05 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. McPhaull, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1960 to January 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Fort Harrison, Montana Department of Veterans Affairs (VA) Regional Office (RO). In January 2008, a videoconference hearing was held before the undersigned; a transcript of this hearing is associated with the claims file. During the hearing, the veteran submitted additional evidence with a waiver of RO initial consideration. FINDING OF FACT The veteran's service-connected disabilities, which include total abdominal hysterectomy (TAH) rated 50 percent, right mastectomy (due to breast cancer) rated 40 percent, bone pain secondary to Tamoxifen for breast cancer rated 20 percent, and depression rated 10 percent, and are rated 80 percent combined, are reasonably shown to be of such nature and severity as to preclude her from participating in any regular substantially gainful employment. CONCLUSION OF LAW The schedular requirements for TDIU are met; a TDIU rating is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case; however, because the benefit sought is being granted, there is no reason to belabor its impact in this matter. II. Legal Criteria VA will grant a total evaluation for compensation purposes based on unemployability when the evidence shows that, by reason of service-connected disabilities, the veteran is precluded from obtaining or maintaining any gainful employment consistent with the veteran's education and occupational experience. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled 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). As further provided by 38 C.F.R. § 4.16(a), "Marginal employment shall not be considered substantially gainful employment." 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). III. Analysis The veteran's service connected disabilities are TAH, right mastectomy (due to breast cancer), bone pain (secondary to Tamoxifen use for breast cancer), and depression. Her TAH and mastectomy are rated 50 and 40 percent respectively, and the combined rating for her service-connected disabilities is 80 percent. Thus, her disabilities meet the schedular requirements for TDIU, under 38 C.F.R. § 4.16(a). The veteran contends that her service-connected disabilities preclude her from obtaining and maintaining substantially gainful employment. On review of the record, the Board finds it reasonable to conclude this is so. The veteran has a high school education and last worked (in a family business) in 2001. She currently volunteers, as able, for the American Legion. At the January 2008 videoconference hearing, she testified that she is in constant pain and discomfort. She stated that she takes 10 milligrams of Hydrocodone (a known narcotic) every six hours and, at times, has to get up in the middle of the night to take it. On June 2007 VA examination, the examiner noted that the veteran was capable of sedentary and non-sedentary employment; and that she would best be suited in a position which required brief periods of sitting and standing. The examiner opined that due to her bone pain the veteran would not be able to work a full 8-hour day; however, she could work part-time. Furthermore, she would not be able to engage in employment requiring driving as she is only able to drive 15 to 20 minutes before developing bone pain. The examiner stated that the veteran would be limited in any occupation requiring driving, machine use, etc. due to her use of narcotics for the bone pain. The Court has stated that the term "substantially gainful occupation" as used in 38 C.F.R. § 4.16(b), "refers to, at a minimum, the ability to earn a living wage." Bowling v. Principi, 15 Vet. App. 1, 7 (2001). Additionally, a claimant is not engaged in a substantially gainful occupation if their annual income is below the poverty threshold for one person. Id. A determination whether a person is capable of engaging in a substantially gainful occupation must consider both that person's abilities and his employment history. See Faust v. West, 13 Vet. App. 342, 355 (2000), citing Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991). Notably, volunteering or part time sedentary employment does not meet this standard. Given the veteran's inability to sit for prolonged periods because of bone pain and the limitations on employment imposed by her extensive use of narcotics to control such pain, and in light of the VA examiner's opinion that the veteran's service connected disabilities would limit her employment capabilities to part-time work only, the Board concludes that the record reasonably establishes that by virtue of her service-connected disabilities the veteran is incapable of participating in regular substantially gainful employment. Accordingly, a TDIU rating is warranted. ORDER A total disability rating based on individual unemployability due to service connected disabilities is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs