Citation Nr: 1304446	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  12- 19 575	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to a total disability rating for individual unemployability.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

N. Snyder, Counsel







INTRODUCTION

The Veteran had active service from August 1942 to October 1943.  This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012).  

The issue of entitlement to special monthly pension for aid and attendance has been raised by the record, but has not been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. 


FINDING OF FACT

Service connection is in effect for one disability at 60 percent, and the service-connected disability is of such nature and severity as to prevent the Veteran from obtaining and retaining substantially gainful employment.


CONCLUSION OF LAW

The criteria for a total disability rating for individual unemployability have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issues on appeal herein.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  This is so because the Board is taking action favorable to the Veteran by granting the issues at hand.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

VA will grant a total disability rating for individual unemployability (TDIU) when the evidence shows that a veteran is precluded, by reason of his service-connected disability or disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  TDIU benefits are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment.  38 C.F.R. § 4.16(a).  The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran can perform the physical and mental acts required by employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable.  38 C.F.R. § 4.16(a).  In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

A total disability rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a). 
 
Service connection is in effect for post-gastrectomy syndrome at 60 percent; consequently, the Veteran meets the schedular threshold for determining entitlement to a TDIU.  The evidence shows that the Veteran has not worked during the appeal period.  In 2009, the Veteran underwent a VA examination, in part to determine whether then post-gastrectomy syndrome rendered him unable to secure substantially gainful occupation.  In response to the Veteran's "claim of unemployability due to service-connected disability," the examiner determined it was "least likely than not that [the Veteran's] ability to work is related to his gastritis."  Thus, the Board finds a total disability rating for individual unemployability is warranted.  


ORDER

A total disability rating for individual unemployability is granted, subject to the applicable regulations concerning the payment of monetary benefits.  



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs