Citation Nr: 0813112 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 07-01 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran served on active duty from January 1952 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which, in part, denied the veteran's claim of entitlement to TDIU. During the pendency of this appeal the veteran's claims file was transferred to the jurisdiction of the Newark, New Jersey which has certified the case for appellate review. In March 2008, the veteran testified before the undersigned at a videoconference hearing. A copy of the hearing transcript has been associated with the claims file. At his March 2008 hearing and in a February 2008 statement, the veteran expressed that he wished to withdraw his appeals concerning the issues of entitlement to a disability evaluation in excess of 30 percent for residuals of frostbite of the right foot and the left foot. Thus, these issues have been withdrawn from appellate consideration and will not be discussed below. 38 C.F.R. § 20.204 (2007). The Board notes that the veteran has a pending claim for entitlement to service connection for post-traumatic stress disorder (PTSD). This issue has not been adjudicated and is referred to the RO for such adjudication. FINDING OF FACT The veteran's service connected disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for the award of a TDIU have been met. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (West 2002) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Analysis VA will grant a TDIU when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007); VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The veteran has been awarded service connection for the following disabilities: (1) residuals of cold injury with onychomycosis, right foot, evaluated as 30 percent disabling; (2) residuals of cold injury with onychomycosis, due to frostbite left foot, evaluated as 30 percent disabling; (3) residuals of cold injury due to frostbite, right hand, evaluated as 20 percent disabling; (4) residuals of cold injury due to frostbite, left hand, evaluated as 20 percent disabling; (5) fungal infection of the groin, evaluated as 10 percent disabling; (6) tinnitus, evaluated as 10 percent disabling and (7) bilateral hearing loss, rated noncompensable. His combined evaluation is 80 percent; and he meets the requirement for TDIU that there be a single disability rated at least 40 percent, on the basis that the first four disabilities listed above are of common etiology. 38 C.F.R. § 4.16(a) (2007). The remaining question is whether his service connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. In March 2005 the veteran underwent a VA examination. The examiner noted that the veteran had worked as an airline inspector and retired at the age of 57 because of difficulty with walking and standing. The diagnosis was onychomycosis of the great right toes bilaterally and numbness in the feet secondary to frostbite. In a September 2006 the veteran underwent an orthopedic evaluation conducted by Dr. E. Megariotis. After a review of the veteran's signs, symptoms and work history, Dr. Megariotis stated that the veteran had been unemployable since 1990, and that he was permanently and totally disabled as a result of the combination of musculoskeletal (hand, foot and spine) neurological (myelopathy) and psychiatric (PTSD) conditions. In October 2006 the veteran underwent a VA examination for cold injury residuals. The examiner noted that the veteran had worked as an airline inspector for 27 years, but had retired because he was having trouble driving to work and walking on the job. In a December 2006 letter, Dr. Megariotis stated that the veteran's unemployability was casually related to his service related pathology of the hands and feet produced by frostbite as well as a worsening of PTSD which had been unmasked with the veteran's age. In a January 2007 letter, Spero Demoleas, D.P.M., stated that he continued to provide the veteran's foot care. He stated that the pain and numbness in the veteran's feet was probably directly related to frostbite while in service. Dr. Demoleas stated that the veteran was unemployable. He could not stand very long and was very limited and slow to walk. In a February 2007 letter, a VA psychiatrist stated that the severity of the veteran's PTSD symptoms would interfere with his ability to obtain and maintain employment. He was unemployable. At his March 2008 hearing, the veteran testified that he last worked in 1989, and had stopped working because as he was having a lot of problems with his feet and hands and could not keep up with the job. Where there is plausible evidence that a veteran is unable to follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is prohibited from denying the claim. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Some of the medical opinions attribute the veteran's unemployment to the combination of his not yet service connected PTSD, and the service connected disabilities. These opinions do not contain any indications as to whether the service connected disabilities alone would preclude gainful employment. The podiatrist's opinion attributes the veteran's unemployability to the service connected conditions alone. The veteran's testimony and the history reported on the VA examinations support the podiatrist's opinion. There is no clear opinion against the claim, and the evidence is in at least equipoise. Resolving all reasonable doubt in the veteran's favor, a TDIU is granted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to TDIU is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs