Citation Nr: 1237273 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 06-08 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD B. Diliberto, Counsel INTRODUCTION The Veteran had active service from May 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. In January 2010, in accordance with the decision in Rice v. Shinseki, 22 Vet. App. 124 (2009), the Board found that the issue of entitlement to a total disability rating based on individual unemployability had been raised. That issue was remanded to the RO/AMC for compliance with due process requirements. In November 2011 the Board once again remanded that claim. The requested development has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The evidence is in equipoise as to whether the Veteran is unable to engage in substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In light of the grant below, there is no prejudice to the Veteran if there was any failure in the duty to notify or duty to assist. The Veteran has claimed entitlement to a total disability rating based on individual unemployability (TDIU). The Board notes that a Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of his 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. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether the Veteran is entitled to a TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Veteran has been granted entitlement to service connection for type II diabetes mellitus (40 percent), coronary artery disease (30 percent), right upper extremity peripheral neuropathy (30 percent), right lower extremity peripheral neuropathy (20 percent), left upper extremity peripheral neuropathy (20 percent), left lower extremity peripheral neuropathy (20 percent), diabetic retinopathy (20 percent), right great toe amputation (10 percent), right second toe amputation (noncompensable) and erectile dysfunction (noncompensable). The combined disability rating currently assigned is 90 percent, and this rating has been in effect since April 8, 2008. Therefore, the schedular criteria have been met, and the only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The relevant evidence of record includes VA treatment records, VA examination reports, records from the Social Security Administration and written statements from the Veteran. In March 2009 the Veteran indicated his desire to file a claim for unemployability, asserting that he had been unemployed since November 2008 and that he felt his disabilities would not allow him to return to work at substantially gainful employment. He submitted a letter from Motor City Stamping, Inc., indicating that he was placed on indefinite layoff status. In April 2009 VA received Form 21-4192, indicating that the Veteran had been employed with Motor City Stamping until November 14, 2008. Therein it was noted that the Veteran had been assigned to computer work during recovery for foot surgery and was assigned to "steel rec" because he was unable to stand for long periods of time. No reason for termination was provided. A second VA Form 21-4192 from Motor City Stamping was also received that month, indicating that the Veteran had worked in a computer supervisory role and had last worked on November 14, 2008. Therein, it was noted that the Veteran was laid off for lack of work. In an April 2009 VA examination report the examiner noted that the Veteran stated that his diabetes and the residual effects of that condition would not have affected his job, which was an internal control supervisor. The Veteran reported that he was laid off from his job the previous November and was not currently working. He indicated that this was a "sit down" job and that he would have been able to keep performing it. The examiner opined that the Veteran was unemployable in jobs that would require physical activity due to his diabetic neuropathy, hypoglycemic reactions, toe amputation and cardiac condition. However, he did opine that the Veteran was employable in a sedentary position, noting that the Veteran had stated that he would have no problem doing his old job if he were called back. In a September 2009 statement the Veteran indicated that he lost his job because he was unable to stand on his feet for long periods. He also stated that he was laid off because of the country's economic situation and because there were no sit-down jobs available due to the company's need to downsize. VA treatment records indicate that the Veteran has been treated for numerous medical conditions, including type II diabetes mellitus, peripheral neuropathy, diabetic retinopathy and other conditions. The record does contain a letter from a VA physician who indicated having seen the Veteran in January 2011 as a patient. The letter contains a statement that the Veteran has service related conditions that would prevent him from working. No rationale or explanation was provided. In a September 2011 letter the Veteran stated that he received his medical care primarily through VA and that his VA physician has placed a letter in his file recommending that he not work with his current medical condition. He also reported that he had recently qualified for Social Security Disability. Records received from the Social Security Administration consist entirely of the VA treatment records already noted. In March 2012 the Veteran was afforded two VA examinations in support of his claim. The first examination was for the Veteran's service-connected diabetic retinopathy. The examiner determined that the Veteran is employable based on his visual status, noting that the Veteran's eyesight corrects to 20/40 or better at distance and near in the right eye and that the left eye has 20/200 vision. The examiner stated that the Veteran is able to drive a car and can read books. The other VA examination was to evaluate the Veteran's heart disease, diabetes mellitus and diabetes residuals, including peripheral neuropathy and amputations. The examiner found that the Veteran's diabetes and toe amputations did not have an impact on his ability to work, but that his diabetic peripheral neuropathy and ischemic heart disease did, noting that the Veteran has problems with lifting and carrying. The examiner noted that the Veteran said he has a GED and that he had a supervisor of material job. He stated that after reviewing the claims file and conducting a physical examination, and based on his experience and expertise, it was his opinion that the Veteran's service-connected conditions are not likely to impact his ability to obtain and maintain substantially gainful simple non-repetitious light duty sedentary employment. There is little doubt that the Veteran has difficulties related to his service-connected disabilities. However, he was able to maintain employment from approximately 1991 to 2008 with the same company. It is clear from the evidence that he did not leave that company because of his disabilities. However, in determining unemployability status, previous unemployability status will be disregarded where the percentages under 38 C.F.R. § 4.16(a) are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. In other words, although the Veteran's last employment ceased because of the company's lack of work, the question is whether the severity of his service-connected disabilities would likely prevent him from gaining or maintaining employment now. The 2009 VA examination showed the Veteran would not be able to work in positions requiring physical activity, but that he could be employed in a sedentary position. The 2012 VA examination continued to show limitations with physical activity such as lifting and carrying, but that the Veteran remained capable of performing simple non-repetitive light duty sedentary work. The most recent VA outpatient records indicate his diabetes is uncontrolled. The Board cannot reject the Veteran's claim without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal. Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Here, it is mere speculation that he could, first of all, obtain a "simple non-repetitive light duty sedentary" position in light of his occupational history and, second of all, that such a position would provide anything more than marginal employment. The 2011 statement from the Veteran's primary care physician (although lacking in rationale) is sufficient to create a reasonable doubt in this case as to whether the Veteran's service-connected conditions alone are of sufficient severity to preclude him from obtaining or retaining gainful employment. Therefore, any doubt is resolved in his favor, and the claim is granted. ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. ____________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs