Citation Nr: 1007449	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  08-12 823	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, 
California


THE ISSUE

Entitlement to total disability based on individual 
unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

A.G. Alderman, Associate Counsel


INTRODUCTION

The Veteran had active service from August 1954 to May 1975.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from August 2006 and April 2007 rating decisions of 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in San Diego, California that denied entitlement to TDIU 
benefits.

The Veteran provided testimony before the Decision Review 
Officer (DRO) at the RO in February 2008.  A transcript of 
the hearing has been associated with the claims file.


FINDING OF FACT

The Veteran's service connected asbestosis renders him unable 
to find and maintain substantially gainful employment.


CONCLUSION OF LAW

The criteria for entitlement to TDIU have been met.  38 
U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.16 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Total disability ratings for compensation may be assigned 
where the schedular rating is less than total, when the 
disabled person is, in the judgment of the rating agency, 
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 as 60 percent or more, and that, if there are two 
or more disabilities, there shall be at least one disability 
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).

Factors to be considered will include the Veteran's 
employment history, educational attainment and vocational 
experience, but marginal employment is not to be considered 
substantially gainful employment.  Id.  Unemployability 
associated with advancing age or intercurrent disability may 
not be used as a basis for a total disability rating.  38 
C.F.R. § 4.19.

Entitlement to TDIU, however, is predicated upon an inability 
to secure and follow "substantially gainful employment."  
38 C.F.R. § 4.16(a).  For purposes of 38 C.F.R. § 4.16(a), 
marginal employment generally shall be deemed to exist when a 
veteran's earned annual income does not exceed the amount 
established by the U.S. Department of Commerce, Bureau of the 
Census, as the poverty threshold for one person.  Id.  
Marginal employment may be held to exist, on a facts found 
basis (includes but is not limited to employment in a 
protected environment such as a family business or sheltered 
workshop), when earned annual income exceeds the poverty 
threshold.  Id.  Consideration shall be given in all claims 
to the nature of the employment and the reasons for 
termination.  Id.

In Faust v. West, 13 Vet. App. 342, 355-56 (2000), the Court 
held that "substantially gainful employment" for TDIU 
purposes is met where the annual earned income exceeds the 
poverty threshold for "one person," irrespective of the 
number of hours or days actually worked and without regard to 
any prior income history.

The Veteran is currently in receipt of a 60 percent rating 
for service-connected asbestosis.  Thus, the Veteran is 
eligible for consideration of a TDIU rating under 38 C.F.R. § 
4.16(a).

The Veteran served with the U.S. Navy from August 1954 to May 
1975.  Subsequent to service, the Veteran worked as a letter 
carrier and the later as a custodian with the U.S. Postal 
Service (USPS).  Evidence shows that the Veteran retired from 
USPS in October 1991 due to his myositis, a non-service 
connected disability, providing evidence against the claim to 
the Board as it indicates a problem not related to service 
caused retirement.

The Veteran had a VA examination in May 2006.  The examiner 
reviewed the claims file.  On examination, the examiner 
stated that the Veteran has had pulmonary function studies 
that have shown some decrease in function, but that it is 
unknown how much of that is secondary to the muscular 
dystrophy.  The Veteran reported that he has been short of 
breath for 10 years and that a small amount of work causes 
shortness of breath.  The Veteran stated that he does not use 
pulmonary medications or have pulmonary treatment and has not 
been in respiratory distress or hospitalized for respiratory 
distress.  

The diagnosis was asbestosis with shortness of breath with 
minor activities and decreased pulmonary function with a 
significant contribution from the muscular dystrophy.  In 
reference to the ability to obtain and retain employment, the 
examiner stated that the Veteran's condition does not limit 
him from sedentary work.  However, the non-service connected 
muscular dystrophy limits the Veteran's mobility and requires 
many more accommodations than would allow him to compete in 
the labor market for employment.

In February 2007, the Veteran had another VA examination.  
The examiner noted that the Veteran is in a wheelchair and 
that any kind of activity causes shortness of breath, 
including the performance of required activities of daily 
living.  The diagnosis was progressive asbestosis with the 
inability to do much without getting shortness of breath on 
any activity and myositis of all extremities, worse in the 
lower extremities but has not progressed too badly in the 
upper extremities.  

The examiner stated that Veteran's asbestosis causes 
shortness of breath and the use of a wheelchair.  He further 
stated that with the myositis, the Veteran is unable to do 
any kind of activity or even stand up without a great deal of 
problems.  These two issues in of themselves have made the 
Veteran totally wheelchair-ridden, and unable to do any types 
of activities.  The examiner stated that the Veteran is 
probably able because of his mental clearness to do some type 
of sedentary work such as computer work but he cannot have 
any kind of lifting or any kind of extra movements.

The Veteran testified before the Decision Review Officer in 
February 2008.  It was noted in the transcript that the 
Veteran had become winded just by talking.  He testified that 
communication is difficult and that he keeps telephone and 
other communication to a minimum because of his disability.

The Board has considered all of the evidence, including 
private treatment records, outpatient treatment records, the 
Veteran's statements, and the other evidence specifically 
cited herein.  The Board has also considered the Veteran's 
employment history, educational attainment and vocational 
experience.  Overall, the Board finds that the preponderance 
of the evidence supports a finding that the Veteran's service 
connected asbestosis has rendered him unable to secure or 
follow a substantially gainful occupation.  

While the Veteran clearly has a severe nonservice related 
disability, and he clearly can not work because of this 
nonservice connected disability, the Board finds that his 
claim is supported by his 60 percent rating for service 
connected asbestos, the VA and private treatment records 
showing "severe" shortness of breath upon any kind of 
movement, the employment history showing a history of 
physically active jobs, and the testimony showing 
difficulties talking and moving.  At this time, it appears 
that either condition would prevent the Veteran from working.  
Accordingly, the Board finds that TDIU should be granted.

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (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. 2009); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).  

In this case, the Board is granting in full the benefit 
sought on appeal.  Accordingly, assuming, without deciding, 
that any error was committed with respect to either the duty 
to notify or the duty to assist, such error was harmless and 
will not be further discussed.  


ORDER

Entitlement to TDIU is granted.


______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs