Citation Nr: 1312307 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-46 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran had active service from August 1966 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, in April 2008. FINDINGS OF FACT The evidence of record is in equipoise as to the question of whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disabilities are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the fully favorable decision below, a detailed explanation of how VA complied with the VCAA is unnecessary. 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. See 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." 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) (2012). The Court noted the following standard announced by the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. See Moore, 1 Vet. App. at 359. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). A total disability rating for compensation may be assigned 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2012). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment cause by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As was discussed in the law and regulations section above, TDIU may be awarded on a schedular or extraschedular basis. In this case only the schedular basis need be considered. The Veteran's service-connected disabilities are: chronic kidney disease secondary to his diabetes, rated as 60 percent disabling, diabetes with erectile dysfunction, rated as 20 percent disabling, peripheral neuropathy of the right lower extremity, at 20 percent disabling, peripheral neuropathy of the left lower extremity, at 20 percent disabling, peripheral neuropathy of the right upper extremity at 20 percent disabling, peripheral neuropathy of the left upper extremity at 20 percent disabling, tinea pedis of both feet at 10 percent disabling, diabetic retinopathy at 10 percent disabling, and hypertension at 10 percent disabling. The Veteran has also been found to be entitled to a nonservice connected pension. The Veteran's combined disability rating is 90 percent, with at least one of his disabilities being at least 40 percent disabling. Therefore, the service-connected disabilities meet the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). The question thus becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2012). Reviewing the evidence of record, the Veteran has an 8th grade education. During his hearing testimony before the Board, he indicated that he had last worked around 1995, running heavy equipment, which was the only job he had done since separation from service. He indicated that because he was on insulin, he was no longer allowed to operate heavy machinery, and therefore could not obtain employment in his prior field. As has been discussed above, the Veteran has been service connected for multiple disabilities, with a combined 90 percent disability rating assigned. In and of itself, this is indicative of significant disability. The Board finds the evidence in relative equipoise as to the question of whether the Veteran's service connected disabilities, alone render him unemployable. Of note are a number of examinations from 2009 which indicate that the Veteran's service connected disabilities do not prevent his employment. However, also of particular note is a January 2012 report of VA examination for diabetes, which specifically indicates that the Veteran would not be able to return to his previous work of heavy equipment operator, because he was on insulin, and would only be able to perform sedentary work. The Board also notes that, since that examination, a March 2012 RO rating decision increased the evaluation for many of the Veteran's service connected disabilities, particularly peripheral neuropathy of the upper and lower extremities. The Veteran also pointed out in his hearing testimony that he had to take frequent bathroom breaks due to his service connected chronic kidney disease, and the Board recognizes that this would have a significant impact on the Veteran's ability to obtain even sedentary employment. Thus, considering all evidence of record, the Board finds that the evidence is at least in equipoise as to the question of whether TDIU is warranted. As such, the Veteran is entitled to the benefit of the doubt, and entitlement to TDIU is granted. ORDER Entitlement to TDIU is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ David Wight Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs