Citation Nr: 1304568 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 07-29 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from May 1993 to March 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2010, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In June 2010 and again in May 2012, the claim was remanded for additional development. FINDINGS OF FACT 1. Service connection is in effect for, in pertinent part, depressive disorder not otherwise specified (rated as 70 percent disabling); pulmonary fibrosis (rated as 30 percent disabling); and degenerative joint disease and degenerative disc disease of the lumbosacral spine (rated as 10 percent disabling). A combined 80 percent disability rating is in effect. 2. Resolving all doubt in the Veteran's favor, the criteria for assignment of TDIU are met. 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. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. TDIU Total disability ratings for compensation 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 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). If the total rating is based on a disability or combination of disabilities for which the Schedule of 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(a). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran is currently service-connected for depressive disorder not otherwise specified (rated as 70 percent disabling); pulmonary fibrosis (rated as 30 percent disabling); and degenerative joint disease and degenerative disc disease of the lumbosacral spine (rated as 10 percent disabling). These service-connected disabilities are rated as 80 percent disabling when combined. See 38 C.F.R. § 4.25 (2012). The Veteran meets the schedular requirements for a TDIU, as he has one disability rated at least 50 percent and a combined rating of at least 70 percent. The question remaining is whether the Veteran is precluded from obtaining or engaging in substantially gainful employment due to all his service-connected disabilities. The evidence of record indicates that the Veteran was employed for at least a portion of the time since filing his claim for TDIU benefits in December 2005. The report of an August 2008 VA examination of the spine noted that he was currently employed. A letter from his employer, received in February 2009, noted that he had worked in 2008 and 2009. In a September 2009 Social Security claim form, the Veteran indicated that his medical condition first rendered him unable to work on June 1, 2009. In June 2010, the Board remanded this matter for a medical opinion addressing the issue of whether the Veteran's service-connected disabilities alone would preclude him from obtaining and retaining substantially gainful employment. Although VA general and mental examinations were provided in July 2010, the VA examiners failed to express an opinion as to whether the Veteran's service-connected disabilities, taken together, would preclude him from obtaining and retaining substantially gainful employment. The opinions provided were limited to consideration of his employability as a result of individual disabilities. On the Veteran's most recently completed VA Form 21-8940, received in May 2012, he stated that he stopped working in May 2009 due to his service connected severe depression, degenerative joint disease of the spine, and pulmonary fibrosis. The application shows that he completed the 12th grade and received training as a corrections officer from the State of Ohio. He had last worked in retail stocking with Walmart, and had previously been a corrections officer. Pursuant to the Board's most recent remand, VA examinations were conducted in August 2012 and October 2012, and an addendum opinion was completed in November 2012. The August 2012 VA general medical examination report noted that the Veteran suffered from a psychiatric disorder as well as a respiratory and spine conditions. The examiner opined that the Veteran's "multiple physical and psychiatric conditions most likely is limiting his ability to attain employment." A November 2012 addendum to the August 2012 VA general medical examination report stated that the Veteran's spine condition would not affect sedentary employment, however the lumbar spine condition would affect a physical job requiring bending, stooping, or lifting. He also stated that the Veteran's pulmonary condition would not affect sedentary employment but may have an effect on a job requiring exertional activity. A VA psychiatric examination in October 2012 included a finding that it was less likely than not that the Veteran's depressive disorder standing alone would preclude him from substantially gainful employment consistent with his education and occupational experience. The examiner noted that the Veteran had reported that his "medical issues had affected his last place of employment, his physical activity level, and as a result, his mood." The most recent VA examinations, despite the Board's instructions, failed to fully consider the combination of the Veteran's service connected psychiatric and physical disabilities, taken together, on his employability. Both the October 2012 and November 2012 opinions failed to consider the complete disability picture, focusing instead on only the psychiatric or physical disabilities rather than all the service connected disabilities in combination. Only the August 2012 opinion made any reference to the combination of the service connected psychiatric and physical disabilities; that opinion noted that they were most likely "limiting his ability to attain employment." As the only opinion of record addressing the combination of service connected physical and psychiatric disabilities leans toward a conclusion that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, the Board resolves reasonable doubt in the Veteran's favor and finds that TDIU is warranted. ORDER Entitlement to TDIU is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs