Citation Nr: 1134852 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 09-11 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Kristy L. Zadora, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1944 to February 1946, including combat service in the Pacific Theater of Operations during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's claim for TDIU. In August 2010, the instant matter was remanded to afford the Veteran the opportunity for a hearing. The Board also remanded a claim for an increased rating for chronic colitis to allow a statement of the case (SOC) to be issued; such a SOC was issued in October 2010. As a substantive appeal as to this claim was not received, it is no longer before the Board for its consideration. The Veteran testified before the undersigned Acting Veterans Law Judge at a May 2011 RO (Travel Board) hearing. A hearing transcript has been associated with the claims file. Additional evidence pertinent to the claim on appeal was submitted in May 2011 and subsequent to the issuance of the March 2009 SOC. This evidence was accompanied by a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2010). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service connected disabilities include: bilateral hearing loss, currently rated as 80 percent disabling; chronic colitis, currently rated as 30 percent disabling; and hemorrhoids, rated as noncompensably disabling; his combined rating is 90 percent. 2. The Veteran is precluded obtaining or maintaining gainful employment as a result of his various service connected disabilities. CONCLUSION OF LAW The criteria for a total rating based on individual unemployability due to service connected disabilities have been met. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA is not applicable where further assistance would not aid a veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating this claim. Applicable Statutes and Regulations TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). It is the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board, therefore, must evaluate whether there are circumstances in the Veteran's case, apart from any non-service connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. TDIU The Veteran contends that he is not able to maintain employment due to the severity of his service connected disabilities, including colitis. A December 2007 VA gastrointestinal examiner, following a physical examination and a review of the Veteran's claims file, opined that it was at least as likely as not that the Veteran's service connected disability had limited his ability to perform duties in his occupational field. He described episodes of explosive and uncontrollable diarrhea while working as a photographer which left him momentarily limited, incapacitated and unable to function in his occupation. Such episodes continue today. A December 2007 VA audiology examiner, following an examination and a review of the Veteran's claims file, opined that the Veteran's hearing loss was not a deterrent to his occupation as a photographer. A September 2008 private opinion from Dr. J. C. indicates that the Veteran had been diagnosed with irritable bowel syndrome that had caused frequent changes in his bowel movements. These changes have limited him by causing him problems with the length of time he was in the bathroom. A November 2008 VA gastrointestinal examiner noted that the Veteran's chronic constipation and diarrhea due to irritable bowel and spastic colon caused a mild effect on his ability to perform chores, exercise, participate in recreational activities, travel, his ability to feed and his ability to groom himself. These disabilities prevented his participation in sports and caused severe effects on his ability to use the toilet. A June 2009 VA gastrointestinal examiner opined that the Veteran's irritable bowel syndrome and spastic colon resulted in severe effects on his ability to perform chores, shopping or traveling. These disabilities prevented exercise or recreation. In a July 2009 statement, the Veteran wrote that he had to leave work as a photographer in the past to use the bathroom due to severe constipation or abdominal distress. He would not be employable under these circumstances. A May 2010 opinion from Dr. H. C., the Veteran's private gastroenterologist, indicates that the Veteran was an established patient with a long history of intractable irritable bowel syndrome with alternating constipation and explosive diarrhea. The provider opined that given the unpredictability of the Veteran's condition and his explosive diarrhea, the ability to work was compromised to the point where it was impossible to be far away from a restroom. The provider further opined that this condition was disabling enough as to render it impossible for the Veteran to hold a job. During a May 2011 hearing, the Veteran testified that he worked as a military photographer following service. He had difficulty hearing others when he was working and the individuals were often impatient with him as a result. His colitis caused him to experience cramps and nausea three to four times per week and dry heaves three to four times per day. There were times when his bowel incontinence required him to change his pants. He stopped working as a photographer entirely about seven years ago but stopped working full-time more than 20 years ago. The Veteran's wife detailed the Veteran's difficulties with diarrhea and constipation and controlling his bowel movements, which occurred at least three to four times per week. Analysis The Veteran's service connected disabilities include: bilateral hearing loss, currently rated as 80 percent disabling; chronic colitis, currently rated as 30 percent disabling; and hemorrhoids, rated as noncompensably disabling. His combined disability rating is 90 percent. This rating satisfies the statutory requirements for TDIU. See 38 C.F.R. § 4.16(a). A VA gastrointestinal examiner opined in a December 2007 opinion that the Veteran's service connected disabilities limited his ability to perform in his occupational field while the Veteran's private gastroenterologist opined in a March 2010 opinion that his gastrointestinal disability rendered it "impossible" for him to maintain employment. These opinions were accompanied by a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). Although the private gastroenterologist apparently did not review the Veteran's claims file, he was familiar with the Veteran's medical history and indicated that he was an established patient. No other competent medical evidence has been submitted. The evidence is at least in equipoise. Resolving all doubt in the Veteran's favor, entitlement to TDIU is therefore granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to TDIU is granted. ____________________________________________ JOHN Z. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs