Citation Nr: 1220437	
Decision Date: 06/12/12    Archive Date: 06/22/12

DOCKET NO.  08-26 100	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his daughter-in-law


ATTORNEY FOR THE BOARD

M. Purdum, Counsel

INTRODUCTION

The Veteran served on active duty from October 1966 to June 1981. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  The RO in Montgomery, Alabama, currently has jurisdiction over the Veteran's claims file.

The Veteran was afforded a hearing in April 2012 before the undersigned Acting Veterans Law Judge (VLJ), seated at the RO in Montgomery, Alabama, in which he and his daughter-in-law presented oral argument in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  The issue on appeal was identified and the Acting VLJ specifically elicited testimony from the Veteran as to the severity of his service-connected disabilities and the effect such have on his employability.  While the VLJ did not specifically suggest the submission of any evidence that may have been overlooked, the Veteran's representative, prior to the time during the Board hearing wherein the Acting VLJ began her questioning, noted that an additional opinion was of record.  Moreover, in light of the grant herein, there is no additional outstanding evidence necessary to decide the claim.  The hearing focused on the Veteran's history, current treatment, and symptomatology as to the service-connected disabilities that he claims is the basis for his unemployability.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 



FINDING OF FACT

Resolving all doubt in favor of the Veteran, his service-connected disabilities, to specifically include post operative vagotomy and pyloroplasty with dumping syndrome and hiatal hernia, have rendered him unable to obtain or retain employment. 


CONCLUSION OF LAW

The criteria for the assignment of a TDIU are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3/103(c)(2), 3.3.159, 3.340, 3.341, 4.15, 4.16 (2011). 


REASONS AND BASES FOR FINDING AND CONCLUSION

In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required.  The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran.

The Veteran claims that he is unable to work due to his service-connected disabilities, to specifically include post operative vagotomy and pyloroplasty with dumping syndrome and hiatal hernia.  

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.  If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38 C.F.R. § 3.341.  In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability.  38 C.F.R. § 4.15. 

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment.  38 C.F.R. § 4.16(a).  All Veterans who are shown to be 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). 

Service connection is in effect for:  (1) post operative vagotomy and pyloroplasty with dumping syndrome and hiatal hernia, currently evaluated as 40 percent disabling; (2) post operative ventral hernia, associated with post operative vagotomy and pyloroplasty with dumping syndrome and hiatal hernia, currently rated as 40 percent disabling; and (3) pes cavus, currently rated as 10 percent disabling.  The Veteran's current combined disability rating is 70 percent.  As the Veteran has two or more service-connected disabilities, and one of them is rated as 40 percent disabling and his combined rating is 70 percent, he meets the threshold percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). 

The question that remains, however, is whether his service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment.  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).  Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 

In a January 2007 statement, the Veteran asserted that he tried to return to work after his 1999 surgery for his service-connected stomach condition.  He reported that after a couple of months of working after his surgery, he had to quit his job.  He asserted that most of the time he had to lie down after he eats.

A January 2007 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, indicates that the Veteran's last employer reported that he stopped working, with his last payment in December 1999, due to exhaustion of his sick leave and federal leave due to a medical condition.    

In a March 2007 statement, the Veteran's wife asserted that his stomach problems had become progressively worse.  She reported that he had a blockage of his intestines that had to be surgically removed, and that he had tried every kind of diet imaginable to control his symptoms.  She reported that such diets had been unsuccessful, and that he was unable to sit up on his own because of the hernias and weak stomach muscles, and that he was not able to life anything too heavy.  She reported that because of his dumping syndrome, he had to immediately use the restroom after a meal and go back many times before his stomach settles down.  She reported that the Veteran ate his meals in a lift chair because reclining after meals seemed to help his digestion somewhat.  

A March 2007 letter from one of the Veteran's VA physicians indicates that 
the Veteran was being treated for a number of disabilities, to include gastroesophageal reflux disease (GERD) and peptic ulcer disease, and was unable to hold any kind of job.  

On VA compensation examination in October 2007, the Veteran complained of abdominal cramping intermittently through the day, with associated burping, belching, and bloating.  He reported that he had dumping syndrome, with semi-liquid stools, at least 5-10 minutes after each meal.  He reported that he became diaphoretic and nauseated during the dumping episodes.  He denied hematochezia or melenic stools and denied weight loss.  The Veteran was diagnosed with previous vagotomy and pyloroplasty with GERD and dumping syndrome.  The examiner opined that, based upon the Veteran's service-connected disabilities, he would be precluded from returning to his job as a truck driver.  He reasoned that the Veteran would not be able to engage in any short or long term route driving, and that he had significant problems with his dumping syndrome several times per day, particularly after eating.

At the time of the Veteran's April 2012 Board hearing, he asserted that he left his truck-driving job in 1999 because of his stomach problems, i.e., his dumping syndrome.  He reported that he had a high-school education, and two years of trade school.  He complained of daily diarrhea, usually after he ate.  He reported that he had an upset stomach, with acid reflux and that sometimes his blood sugar got low and he got shaky and sweaty.  He reported that he had to lay down after meals for 20 or 30 minutes, at least three times each day.  He reported that he was "out of sorts" for the 20 or 30 minutes after meals.  He reported that he also could not lift more than 20-25 pounds due to his service-connected ventral hernia, and that was another reason why he could not work.  The Veteran asserted that he felt that he was not capable of office work due to his constant diarrhea.  He reported that he had to jump and run to the bathroom when an episode occurred, that it "hits" that quickly.  The Veteran further stated that he didn't even go to church because of the dumping syndrome.  He reported that he had difficulty concentrating with his "shakiness and whatnot".    

The Veteran's daughter-in-law also offered testimony at the April 2012 Board hearing.  She asserted that she witnessed the Veteran's sweating and shaking, and that such were noticeable by other people.  She reported that sometimes the Veteran made commitments and couldn't follow through with them because his stomach was so upset and he isn't able to do anything but sit around.  She reported that the Veteran had to move out of his bedroom to be closer to the restroom.  

The Board has considered that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA) for chronic myeloid leukemia (CML), a nonservice-connected disability.  However, review of the Veteran's SSA records, and additional treatment records associated with the claims file, specifically, a July 1999 private treatment record, indicate that the Veteran presented for treatment of severe stomach problems, with a surgical history of the same dating back to the 1970's.  The physician noted that during treatment for the same, hematologic abnormalities were noted and such led to the diagnosis of CML.  

The Board has also considered that the Veteran has multiple nonservice-connected disabilities.  At the time of the October 2007 VA examination, the examiner diagnosed such to include CML, hypertension, and osteoarthritis.  Indeed, when discussing the Veteran's employability, the examiner noted that, due to the Veteran's significant osteoarthritis with history of CML, he was not able to ambulate greater than 5-10 feet without considerable effort and use of a cane or electric scooter.  Thus, it is clear to the Board that the Veteran has significant mobility issues related to non-service-connected disabilities that impact his ability to work.  However, it is also clear to the Board that the Veteran is unable to work as a truck driver, on long or short routes, due to his service-connected post operative vagotomy and pyloroplasty with dumping syndrome and hiatal hernia.  In this regard, the October 2007 VA examiner specifically asserted that the Veteran's significant problem with his dumping syndrome several times per day was the reason that the he could not work as a truck driver.  

Thus, without consideration of the Veteran's nonservice-connected disabilities, which clearly have a significant impact on his employability, there still remains the fact that he is unable to work as a truck driver, his usual occupation, as a result of his dumping syndrome.  In this regard, while the examiner limited his opinion to work driving trucks, the Board cannot conceive of a scenario wherein the Veteran's dumping syndrome would not be a bar to gainful employment.  His symptoms not only include episodes of dumping multiple times each day, but subsequent diaphoresis and nausea.  The Veteran has offered testimony that he has to lie down after a dumping episode, and that he has difficulty concentrating while he recovers from an episode.  

The Board finds that the evidence as a whole, to specifically include the opinion rendered at the October 2007 VA examination, the Veteran's lay statements and those of his wife and daughter-in-law, and the record of multiple instances of treatment for stomach symptoms, supports the Veteran's claim of entitlement to a TDIU.  Therefore, giving the Veteran the benefit of the doubt, as is required by law, the Board concludes that his service-connected disabilities, to specifically include his post operative vagotomy and pyloroplasty with dumping syndrome and hiatal hernia,  render him unable to obtain and maintain substantially gainful employment.  Therefore, entitlement to a TDIU is warranted.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

A TDIU is granted. 



____________________________________________
A. JAEGER
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs