Citation Nr: 1309526 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 11-12 604 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability by reason of service-connected disability (TDIU). REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the RO. The Veteran was afforded a hearing held at the RO before a Decision Review Officer (DRO) in February 2011. In September 2011, the Board remanded the case to the RO for additional development of the record. In September 2012, the Board granted service connection for chronic headaches, chronic vertigo, hypertension on the basis of aggravation, and coronary artery disease on the basis of aggravation. The issue of a TDIU rating was remanded so that the RO could readjudicate the claim following implementation of the grants of service connection. In October 2012, the RO implemented the September 2012 decision of the Board as follows: cardiovascular heart condition (60 percent beginning on April 26, 2010; 100 percent from October 19, 2010; and 10 percent beginning on January 1, 2011); chronic dizziness (10 percent beginning on October 30, 2009); hypertension (no percent beginning November 20, 2010); and headaches (no percent beginning on October 30, 2009). The RO also increased the evaluation for the service-connected PTSD to 70 percent beginning on June 11, 2012. In December 2012, the Veteran's agent submitted supplemental argument. At that time, he stated that the Veteran's heart disease was diagnosed as early as 1999 and that an earlier effective date for the grant of service connection should be assigned. The agent did not specifically express disagreement with the effective date assigned for the grant of service connection for coronary artery disease and the Board does not consider this statement a Notice of Disagreement. See 38 C.F.R. § 20.201 (2012). In November 2012, the RO increased the evaluation for coronary artery disease to 60 percent beginning on January 1, 2011. The claim for a TDIU rating was readjudicated in the January 2013 Supplemental Statement of the Case and the appeal has been returned to the Board. The Virtual VA eFolder has been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran currently meets the schedular requirements for a TDIU rating. 2. The service-connected disabilities by themselves are shown as likely as not to preclude the Veteran from securing and following substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, the criteria for the assignment of a TDIU rating are met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In light of the favorable decision in this case, a detailed discussion regarding how VA satisfied its duties to notify and to assist pursuant to VCAA is not required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis The Veteran contends he is unemployable as the result of his service-connected disabilities and that a total rating is warranted. In a June 2010 statement, he reported being "unable to work due to, at least in part, to my [psychiatric] condition." At the February 2011 hearing, the Veteran testified that he last worked for his son in refrigeration. The work was physically demanding. He reported last working about 3 to 4 years earlier. He would just go with his son from time to time and receive some cash from him, but was not officially on the payroll. He essentially testified that his heart disease was the main factor in preventing him from working. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more and 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(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disability of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a). 38 C.F.R. § 4.16(b). A review of the claims folder shows that the Veteran is service connected as follows: PTSD (50 percent from October 30, 2009, 70 percent from June 11, 2012); coronary artery disease (60 percent from April 26, 2010, 100 percent from October 19, 2010, and 60 percent from January 1, 2011); bilateral hearing loss (10 percent from October 30, 2009); chronic dizziness (10 percent from October 30, 2009); tinnitus (10 percent from October 30, 2009); right deviated septum (no percent from April 1, 1946); headaches (no percent from October 30, 2009); and hypertension (no percent from November 20, 2010). The Veteran's combined evaluation is calculated as 60 percent disabling beginning on October 30, 2009; 90 percent disabling beginning on April 26, 2010; 100 percent disabling beginning on October 19, 2010; and 90 percent disabling beginning on January 1, 2011. On review, the Veteran clearly meets the schedular requirements for TDIU rating for the period beginning as early as April 26, 2010. For the period from October 19, 2010 to January 1, 2011, he also was receiving a 100 percent schedular evaluation. In December 2012, the Veteran's agent argued that the service-connected PTSD was directly related to the traumatic life threatening experience while under attack, which included a head injury resulting in chronic dizziness. In the agent's opinion, these disabilities stemmed from a common etiology and met the requirement for a single 60 percent rating as defined in 38 C.F.R. § 4.16(a). The Board acknowledges this argument, but notes that the Veteran had additional service-connected disabilities at that time, which did not combine to a 70 percent rating. Nonetheless, the question remains whether the Veteran is unemployable as a result of his service-connected disabilities. Entitlement to a total compensation rating must be based solely on the impact of a veteran's service-connected disabilities on his ability to keep and maintain substantially gainful work. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The question in a claim of entitlement to a TDIU rating is whether a veteran is capable of performing the physical and mental acts required by employment and not whether a veteran is, in fact, employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In making this determination, the Board notes that the pertinent inquiry is whether a service-connected disabilities individually or in combination are of sufficient severity to produce unemployability - not whether a veteran is unemployable solely due to his service-connected disabilities. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). At a VA examination in May 2012, the examiner stated that the Veteran's hypertension did not impact his ability to work. At a VA heart examination in May 2012, the examiner stated that the Veteran's heart condition did not impact his ability to work. At a VA ear conditions examination in May 2012, the examiner stated that the Veteran's ear or peripheral vestibular condition did not impact his ability to work. At a VA headache examination in May 2012, the examiner stated that the Veteran's headache condition did not impact his ability to work. The Veteran underwent a VA PTSD review examination in June 2012. Following a review of the claims folder and interview and examination of the Veteran, the examiner provided the following remarks about employability: The [V]eteran has consistently reported that he believe[d] his physical disabilities render him unemployable. He ha[d] not reported that his psychological disabilities render[ed] him unemployable. During today's examination the [V]eteran had some difficulty describing any emotional problems at all that might affect his occupational functioning. Rather, he would continue to discuss the adverse effect of his physical disabilities. He would also discuss the adverse effect of his physical disabilities on his emotional state. After some extensive prompting - - which included reiterating the purpose and scope of a mental disorders examination, and ensuring that the [V]eteran understood it - - the [V]eteran did state that he ha[d] some problems with anger and irritability. At no point did he describe anger and irritability that [were] so severe that they preclude[d] employment. The [V]eteran also discussed a number of memory problems which [were] not in this case PTSD symptoms. Therefore, while the [V]eteran's psychiatric symptoms [did] cause impairment, it [was] less likely as not that his psychiatric conditions preclude[d] him from securing and following a substantially gainful occupation consistent with his education and occupational experience. In addressing the merits of the claim, the Board acknowledges the above-referenced medical opinions. However, none of these opinions address whether the combination of his service-connected disabilities, both physical and psychiatric, are sufficient to produce unemployability. The evidence of record does not show that the Veteran has any significant education or training or an occupational history consistent with more than largely manual labor-type jobs. Given the overall limitations imposed on the Veteran by the service-connected disabilities including the service-connected PTSD rated as 70 disabling and the service-connected coronary artery disease rated as 60 percent disabling, the Board finds that the Veteran as likely as not is prevented from obtaining and retaining substantially gainful employment consistent with his limited education and work history of performing only manual labor. In resolving all reasonable doubt in the Veteran's favor, a TDIU rating is warranted in this case. ORDER Entitlement to a TDIU rating is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs