Citation Nr: 1309031 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-44 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to December 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's claim for a TDIU. On his October 2010 Substantive Appeal, the Veteran indicated that he wished to testify before a member of the Board. In May 2011, however, the Veteran withdrew that request; the case may move forward without a hearing. FINDINGS OF FACT 1. The Veteran is currently service-connected for four disabilities: depressive disorder, residuals of a left below the knee amputation, chronic folliculitis, and lumbar disc disease; he has a combined disability rating of 80 percent. 2. The Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1154, 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist 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. II. Entitlement to a TDIU A TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. The Veteran meets the schedular criteria for a TDIU. He is currently service-connected for four disabilities: depressive disorder, rated as 50 percent disabling; residuals of a left below the knee amputation, rated as 40 percent disabling; chronic folliculitis, rated as 10 percent disabling; and lumbar disc disease, rated as 10 percent disabling. The Veteran's combined disability rating is 80 percent. As he has multiple disabilities with a combined rating of more than 70 percent, he meets the schedular criteria for a TDIU. The evidence also shows that his service-connected disabilities prevent him from securing or following substantially gainful employment. An October 2011 psychiatric assessment from B.C., MD diagnosed the Veteran as suffering from major depression. Dr. B.C. stated that the Veteran's depression symptoms have been limiting in multiple regards, including a well documented lack of social capabilities and argumentativeness. She added that the Veteran's amputation and the ongoing problems with his stump include substantial limitations in using his prosthesis as a result of his chronic infection and pain. She concluded that "[the Veteran] suffers from severe, chronic, and totally disabling depression in addition to severe medical conditions that have left him totally disabled since 1999." Other evidence supports her conclusion. A March 2011 letter from the Veteran's VA psychiatrist noted that the Veteran suffers from depression exacerbated by the limitations of his prosthesis. She stated that though the Veteran had worked at a family owned laundromat, the stress from this job increased his mood symptoms. She stated that should he return to work, "it is quite likely his mood symptoms will increase again." In an April 2011 letter, the Veteran's wife spoke of his difficulty working. She stated that the Veteran has unpredictable mood swings ranging from rage to depression. She stated that the Veteran had worked as her office assistant in a real estate office, but that her partner asked him not to come back because of his explosive nature. She stated that the Veteran went to card dealer school, but he was not placed in a position due to his anger and attitude. The Veteran's wife stated that she purchased a business, but the landlord asked that the Veteran not come onto the premises any more, as he argued with other employees and vendors and he got into a fist fight with a customer. In a March 2010 letter, the Veteran described the difficulties that he has in working. He stated that while working at his family laundromat, he was in fights and was banned from a neighboring convenience store. The Veteran stated that his wife is selling the business because he is unable to function well enough to work there. He also discussed the difficulties that his prosthesis presents. This evidence shows that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Importantly, in denying the Veteran's claim, the RO did not examine the Veteran. Instead, it relied on previous examinations outside of the appeals period to determine that he maintained the ability to work. Based on the evidence presented by the Veteran and his representative, however, it is clear that the Veteran's service-connected disabilities prevent him from working and that a TDIU is warranted. ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs