Citation Nr: 0811929 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-33 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a total rating for compensation based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Douglas J. Boorstein, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from March 1951 to March 1954. The veteran served in the United States Air Force from May 1954 to November 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Wichita, Kansas, Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to individual unemployability. In February 2008, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. A motion to advance this case on the Board's docket was received by the Board in February 2008 and granted in April 2008, for good cause. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected disabilities are of such severity so as to preclude the veteran from obtaining and maintaining substantial gainful employment. CONCLUSION OF LAW The criteria for a total rating for compensation based upon individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria The veteran contends that he is entitled to a total disability rating based on individual unemployability because he cannot work as a result of his service-connected disabilities. He maintains that he worked as a security guard and his service-connected disabilities caused him to lose his job. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service- connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has stated: In determining whether appellant is entitled to a total disability rating based upon individual unemployability, neither appellant's non-service- connected disabilities nor his advancing age may be considered. See 38 C.F.R. § 3.341(a) (1992); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task was to determine whether there are circumstances in this case apart from the non- service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the B[oard] must determine if there are circumstances, apart from non-service-connected disabilities, that place this veteran in a different position than other veterans . . . . See 38 C.F.R. § 4.16(a) (1992). Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). The central inquiry is, "[W]hether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). For purposes of this decision, the Board notes that the veteran's service connected right foot and left foot disabilities are rated under two diagnostic codes. For the veteran's service-connected residuals of a cold injury with degenerative joint disease, loss of sensation and pain of the feet, a separate 30 percent rating based upon Diagnostic Code 7122 has been assigned. A 30 percent rating is assigned where there are cold injury residuals with the following in affected parts: evidence of arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, x-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 38 C.F.R. § 4.104, Diagnostic Code 7122. Note (1) to Diagnostic Code 7122 instructs that amputation of fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy, be evaluated under other diagnostic codes. Also, other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., must be evaluated, unless they are used to support an evaluation under Diagnostic Code 7122. Note (2) to Diagnostic Code 7122 states that each affected part is to be evaluated separately and the ratings combined in accordance with 38 C.F.R. § 4.25 and § 4.26. For the veteran's bullus ulceration with edema and dystrophic changes of the feet, a separate 40 percent rating under Diagnostic Code 7121 has been assigned. A 40 percent rating is assigned where the veteran has been shown to have post- phlebitic syndrome of any etiology with persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. 38 C.F.R. § 4.104, Diagnostic Code 7121. Note 1 to this diagnostic code indicates that these evaluations are for the evaluation of a single extremity. If more than one extremity is involved, the RO must evaluate each extremity separately and combine (under 38 C.F.R. § 4.25), using the bilateral factor (§ 4.26). A 0 percent rating is assigned for the veteran's bilateral hearing loss. VA rating criteria provide ratings from zero (noncompensable) to 100 percent, based on the results of controlled speech discrimination tests together with the results of pure tone audiometry tests which average pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. §§ 4.85-4.87; Diagnostic Codes 6100 to 6110 (2007). The evaluation of hearing impairment applies a rather structured formula which is essentially a mechanical application of the rating schedule to numeric designations after audiology evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis As noted above, service connection is in effect for the following: (1) residuals of a right foot cold injury with degenerative joint disease, loss of sensation and pain, rated at 30 percent; (2) residuals of bullus ulceration, edema, dystrophic changes in the right foot, rated at 40 percent; (3) residuals of a left foot cold injury with degenerative joint disease, loss of sensation and pain, rated at 30 percent; (4) residuals of bullus ulceration, edema, dystrophic changes in the left foot, rated at 40 percent; and (5) bilateral hearing loss, rated at 0 percent. The veteran has a combined evaluation of 90 percent (after application of 38 C.F.R. §§ 4.25 and 4.26). Therefore, the veteran meets the percentage prerequisites for entitlement to TDIU under 38 C.F.R. § 4.16(a). He has a combined rating of 70 percent or more, with one service-connected disability rated at 40 percent or more. The Board must now consider whether his service-connected disabilities render him unable to obtain and retain substantial gainful employment. See 38 C.F.R. §§ 3.321, 4.16(b). A review of the record shows that the veteran's service- connected disabilities render him unable to obtain and maintain substantial gainful employment. VA outpatient treatment reports dated from 2002 through 2004 show that the veteran worked as a security guard and that he had difficulty with walking. It was noted that the veteran's employment required a lot of walking and he experienced pain and numbness with pitting edema. The record also reflects that in June 2004, the veteran was issued a walker by VA, and that he has continued to use a walker to assist with ambulation. On VA examination in 2003, it was noted that accommodations were made for the veteran when he worked as a security guard. The veteran reportedly walked one round and used a vehicle to make his other rounds. On VA examination in May 2006, although the veteran's hearing disability was noted not to interfere with his employability, the examiner noted that the service-connected injuries to his feet caused him to need a walker to ambulate. Additionally, although elsewhere in the examination report the examiner noted that the veteran's foot disabilities had no significant effect on his employment, objective findings revealed that the veteran had neurological symptoms as well as numbness, edema, a dyspraxic gait, etc. In addition to the foregoing, the veteran testified at his hearing that although the records indicated otherwise, in reality, he was terminated from his job in December 2003 as a security guard due to his failure to walk his rounds. The veteran indicated that he was unable to do so and was noted by his supervisor to have been sitting down when he should have been walking his rounds. The veteran indicated that this was due to problems he experienced with his feet. Based upon the above-noted evidence of record, the Board finds that, giving the benefit of the doubt to the veteran, his service-connected disabilities render him unable to obtain and maintain substantial employment. At this time, the Board acknowledges that the veteran also has other nonservice-connected disabilities that might render him unemployable. In this regard, the Board notes that it is cognizant of the veteran's peripheral neuropathy which also causes impairment of the lower extremities. However, given the severity of the veteran's service-connected disabilities and the absence of evidence separating symptoms attributable to his service-connected disabilities and his nonservice- connected disabilities, the Board finds that any doubt in this regard is resolved in the veteran's favor. Mittleider v. West, 11 Vet. App. 181 (1998) (where manifestations of a service-connected disability cannot be separated from the manifestations of a nonservice-connected disability, all manifestations must be attributed to the service-connected condition). A total rating for compensation based upon individual unemployability due to service-connected disabilities is therefore granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, any error, if present, with respect to either the duty to notify or the duty to assist is harmless and not prejudicial to the veteran. ORDER Entitlement to a total rating for compensation based upon individual unemployability due to service-connected disabilities is granted, subject to the regulations pertinent to the disbursement of monetary funds. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs