Citation Nr: 1306283 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-20 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to December 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This case was previously before the Board in March 2012. As discussed in more detail below, the Board finds that there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran testified at a March 2011 hearing conducted by the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the claims folder. FINDINGS OF FACT 1. The Veteran is service-connected at 40 percent per extremity for bilateral atherosclerotic peripheral vascular disease lower extremity associated with hypertension, 10 percent for hypertension, 10 percent for gout, 10 percent for a fractured right lateral malleolus, zero percent for post traumatic osteoid osteoma of the left tibia, and zero percent for cystectomy of the left buttock for a total combined disability rating of 80 percent. 2. The Veteran completed high school and a few college credits, but did not obtain a college degree. The Veteran's post-service employment has all involved manual labor. 3. The Veteran's service connected disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for an award of a TDIU due to the Veteran's service-connected disabilities have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. II. Compliance with Prior Board Remands The Board has remanded this matter once in March 2012 for the purpose of scheduling the Veteran for a VA examination to determine the impact of all of his service-connected disabilities on his employability. The Veteran was provided with an adequate VA examination in April 2012, with an addendum opinion in October 2012. See 38 C.F.R. § 3.159(c)(4). Thus, it appears there was substantial compliance with the March 2012 remand order and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). III. Total Rating for Compensation Based on Individual Unemployability (TDIU) The Veteran contends that a grant of TDIU is warranted as he is unemployable due to a combination of all of his service-connected disabilities, especially his bilateral atherosclerotic peripheral vascular disease lower extremity. Although the record contains medical evidence indicating that the Veteran is capable of performing sedentary employment, the Veteran's high school degree and post-service manual labor work experiences do not qualify him for sedentary employment that will permit him to earn a living wage. VA will grant a TDIU when the evidence shows the veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91. "[T]he central inquiry in determining whether a veteran is entitled to a TDIU rating is whether that 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). The Veteran is service-connected for bilateral atherosclerotic peripheral vascular disease lower extremity associated with hypertension at 40 percent for each extremity, hypertension at 10 percent, gout at 10 percent, fractured right lateral malleolus at 10 percent, post traumatic osteoid osteoma of the left tibia at zero percent, and cystectomy of the left buttock at zero percent for a total combined disability rating of 80 percent. He therefore meets the minimum schedular criteria for a grant of a TDIU. See 38 C.F.R. § 4.16(a) (if there are two or more service-connected disabilities, one must be rated at 40 percent or more and the combined rating must be 70 percent or more). Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment, meaning work that is more than marginal, which permits him to earn a "living wage." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. See 38 C.F.R. § 4.16(a). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. In making its determination, VA considers such factors as the extent of the service-connected disabilities and the veteran's employment and educational background. See 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The record establishes that the Veteran was last employed by the United States Postal Service (USPS) from 1998 to 2007 as a mailer carrier. See VA Examination, April 2012; see also Social Security Administration, Disability Report, November 2006. The Veteran has consistently reported that he retired from his position as a mail carrier with USPS due to symptoms including leg pain and cramping associated with his service-connected bilateral atherosclerotic peripheral vascular disease of the lower extremities. See Hearing Transcript, pages 3-4, March 2011. The Veteran's other post-service job involved working for eight years at a warehouse unloading trucks, stocking and pulling orders. See VA Examination, April 2012; see also Social Security Administration, Disability Report, November 2006. During his 20 year service in the Air Force from 1961 to 1981, the Veteran worked as a recruiter, a still photographic technician, and as a Morse intercept operator. See Veteran's DD-214. The Veteran received a total of 90 hours of military education during his 20 years in the Air Force. Id. The Veteran completed high school and received some college credit while in service, but did not receive a college degree. See VA Examination, April 2012. The Veteran was afforded VA examinations in April 2010 and April 2012. The April 2010 VA examiner found the Veteran is no longer able to work as a mail carrier and his bilateral atherosclerotic peripheral vascular disease of the lower extremities alone imposes restriction in all fields of labor requiring light to heavy manual labor. However, the examiner found the Veteran was not restricted from doing a sedentary job if he was allowed to get up and stretch once an hour. The April 2012 VA examiner also found that none of the Veteran's service-connected disabilities preclude him from doing any form of full time gainful sedentary work. Therefore, the VA examiner concluded that none of the Veteran's service-connected disabilities are of such severity as to result in total unemployability. Additionally, in an October 2012 addendum opinion, the VA examiner opined that a combination of all the Veteran's service-connected disabilities would impose work restrictions in the field of labor requiring light and heavy manual labor and would restrict his ability to lift, pull or carry light and heavy loads for prolonged and short periods of time. The examiner also confirmed his April 2012 findings that the Veteran is able to perform sedentary work. However, the Board notes that the VA examiners appear to have not taken the Veteran's education and work history into account when rendering their opinions. The Veteran enlisted in the military after high school and only completed a few college credits while serving in the Air Force. The Veteran did not obtain a college degree. The Veteran's three decade post-service employment is limited to the field of manual labor as he worked in a warehouse loading, stocking, and pulling orders and as a USPS mail carrier. Although the VA examiner in October 2012 found the Veteran's level of education, training, and prior experience would not affect or impose work restrictions in a sedentary job, the examiner did not specify which of the Veteran's education, training and/or prior work experiences qualified him for gainful work in a sedentary environment. The Board finds this omission problematic in light of the Veteran's educational and work history. Additionally, the record includes letters from the Veteran's vascular doctor, who has treated the Veteran from 2007 to present for his bilateral atherosclerotic peripheral vascular disease of the lower extremities and performed the Veteran's 2007 left femoropopliteal bypass surgery. The doctor states that the Veteran's bilateral atherosclerotic peripheral vascular disease of the lower extremities will become progressively worse over time and requires lifelong follow up. See Letter from Dr. K.D.H, February 2010. It is very likely the Veteran will require surgery for his right lower extremity and re-intervention on the left lower extremity graft. Id. The doctor states that the Veteran is a former mail carrier but can no longer work because of his extensive peripheral vascular disease in the lower extremities. See Letter from Dr. K.D.H, September 2007. Due to this doctor's long-term treatment of the Veteran and his extensive knowledge of the specifics of the Veteran's peripheral vascular disease, his statements regarding unemployability are entitled to significant probative value. After review of the evidence of record, the Board finds that the Veteran is entitled to a TDIU as his service-connected disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. Thus, the Veteran's service-connected disabilities have rendered him unemployable. In reaching this conclusion, the Board has considered the Veteran's educational and occupational background which is limited to a twelfth grade education and post-service work experience performing physical labor, the VA examiner's opinions that the Veteran is only capable of performing sedentary work, and the Veteran's vascular doctor who opined that the Veteran can no longer work due to his extensive bilateral peripheral vascular disease. Therefore, the Board finds that the Veteran is unable to follow a substantially gainful occupation due to his service-connected disabilities and should be rated as totally disabled. ORDER Entitlement to TDIU is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs