Citation Nr: 0813212 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 07-04 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The veteran served on active duty from November 1969 to March 1972 and from May 1974 to October 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In March 2008, a Travel Board hearing was held before the undersigned Acting Veterans Law Judge at the Winston-Salem RO. A transcript of the hearing is of record. The record reflects that the veteran submitted additional evidence to the Board accompanied by a waiver of initial review by the agency of original jurisdiction. See 38 C.F.R. § 20.1304. FINDING OF FACT The veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities CONCLUSION OF LAW Criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) 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 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Given the fully favorable decision with respect to the claim of entitlement to a TDIU, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the veteran is moot or represents harmless error. II. Analysis Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. A total disability evaluation may be assigned where the schedular evaluation 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §4.16(a). 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). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2007); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The veteran is service connected for diabetic nephropathy, evaluated as 60 percent disabling; post-traumatic stress disorder (PTSD), evaluated as 50 percent disabling; type II diabetes mellitus with erectile dysfunction, evaluated as 20 percent disabling; hemorrhoids, evaluated as 20 percent disabling; eczematous dermatitis with secondary neurodermatitis component, evaluated as 10 percent disabling; diabetic neuropathy of the left lower extremity with erectile dysfunction, evaluated as 10 percent disabling; diabetic neuropathy of the right lower extremity with erectile dysfunction, evaluated as 10 percent disabling; and anemia, evaluated as noncompensably disabling. His combined disability rating is 90 percent, which meets the schedular criteria for TDIU. The Board must therefore determine whether the veteran is unable to maintain substantially gainful employment due to these service-connected disabilities. The veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. The veteran has indicated that he worked full time as an independent insurance agent until his kidneys failed in August 2004. In a statement received by VA in March 2005, the veteran indicated that he was able to work about four hours a day, five days a week. In September 2005, he had to quit the insurance business altogether because he was no longer able to work. In March 2008, the veteran testified that his primary income currently comes from residuals of past insurance sales. He submitted copies of his 2004 and 2007 tax returns as evidence of his recent employment activities. He stated that he still occasionally sells policies, a maximum of two or three per year. At the time of the hearing, he had last sold a policy the prior week. Before that sale, it had been seven or eight months since his last sale. The Board does not consider the veteran's occasional sale of insurance to be substantially gainful employment, nor does it consider the residuals from past sales an indicator of current employment or employability. The veteran testified that his disabilities make it very difficult to do perform basic functions, such as driving, that are required of an insurance salesman. He described swelling that starts from the bottom up and stated that he cannot walk within an hour and a half. This swelling makes it difficult for him to manipulate the computer keys. He stated that edema in his hands makes it impossible for him to hold a pen by 10:30 or 11:00 in the morning. He also testified that, after 60 minutes of driving, he can hardly bend his knee to activate the pedals. Due to swelling, gripping and turning the wheel becomes almost impossible. He stated that, in general, the more active he becomes, the more pronounced the swelling becomes. He takes a maximum dosage of a fluid reduction pill that causes him to use the restroom every 90 minutes to two hours. He also noted that financial stress and the overall aches and pains caused by his kidney failure make it hard to concentrate, and he cited the need to concentrate on formulas and policy types when analyzing a client's needs. In 2005, the veteran was scheduled for a series of VA examinations to determine the severity of his service- connected disabilities and their impact, if any, on his employability. Based on the opinions offered in these reports, the Board finds that the cumulative level of impairment caused by the veteran's service-connected disabilities precludes him from engaging in substantially gainful employment. According to a February 2005 VA diabetes mellitus examination report, the veteran's diabetes mellitus type II, diabetic neuropathy, and erectile dysfunction secondary to diabetes would impact the his ability to perform physical and sedentary employment in that he has some evidence of renal failure and anemia. The examiner noted that these conditions would impair the veteran's strength and his ability to do things physically and might also impair his mental function. A September 2005 PTSD examination report states that the veteran was working two or three hours per day. The examiner noted impairment in working, secondary to the veteran's health problems. It specifically listed PTSD, diabetes with peripheral neuropathy, anemia, renal failure, and hypertension, all but the last of which are service-connected disabilities. A September 2005 skin diseases examination report diagnoses eczematous dermatitis with secondary neurodermatitis. It was noted that the pain and itching caused by this disability have a significant occupational impairment on the veteran's sales work. The examiner noted the veteran's difficulty interacting with his clients and the general population due to these symptoms. There were otherwise no impairments in the veteran's activities of daily living and other functional impairments. Based on the foregoing, the Board concludes that the weight of evidence supports the veteran's claim for TDIU. In essence, it appears that the overall impairment resulting from his service-connected disabilities, which are currently assigned a combined rating of 90 percent, do likely render the veteran unable to follow a substantially gainful occupation due to service-connected disabilities. As discussed, the Board is cognizant that the veteran still occasionally sells policies, a maximum of two or three per year. However, the veteran also explained that these sales came from word-of-mouth referrals from past clients, rather than from active soliciting on his part. In light of the minimal effort on his part, and the very minimal income received as a result, the Board finds that this does not constitute substantial gainful employment. Thus, the benefit sought on appeal is granted. ORDER A total rating based on individual unemployability is granted. ____________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs