Citation Nr: 1312696 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-39 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES Entitlement to a total disability rating based on individual unemployability prior to February 4, 2011. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1968 and from September 1970 to November 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board notes that the Veteran has been in receipt of a 100 percent schedular rating since February 4, 2011. In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the United States Court of Appeals for Veterans Claims (the Court) held that a claim for a total disability rating based on individual unemployability is still pending even when a veteran is receiving a 100 percent schedular rating if that veteran could still get special monthly compensation pursuant to 38 U.S.C.A. § 1114(s) (West 2002). In this case, the Veteran has been receiving special monthly compensation pursuant to 38 U.S.C.A. § 1114(s) since February 4, 2011. Thus, the reasoning underlying Bradley would not apply in this case, and any claim for a total rating based on individual unemployability would be moot on and after February 4, 1002. Furthermore, in May 2012 the Veteran withdrew any claim of entitlement to a total disability rating based on a total disability rating based on individual unemployability since February 4, 2011. Therefore, the claim on appeal is clearly limited to the period prior to February 4, 2011. In January 2013, the representative withdrew the Veteran's request for a Board hearing. FINDINGS OF FACT 1. From October 31, 2006, to April 7, 2008, the Veteran was service-connected for chronic renal insufficiency with hypertension (rated as 60 percent from March 31, 2005), atrial fibrillation, and chronic arrhythmia; type II diabetes mellitus with erectile dysfunction; and bilateral peripheral neuropathy of the lower extremities associated with diabetes mellitus. The service-connected disabilities were rated as 70 percent disabling during that time period. 2. From April 8, 2008, to March 6, 2010, the Veteran was service-connected for chronic renal insufficiency with hypertension (rated as 60 percent from March 31, 2005), atrial fibrillation, and chronic arrhythmia; type II diabetes mellitus with erectile dysfunction; bilateral peripheral neuropathy of the lower extremities associated with diabetes mellitus; and a depressive disorder not otherwise specified. The service-connected disabilities were rated as 80 percent disabling during that time period. 3. From March 7, 2010, to February 3, 2011, the Veteran was service-connected for chronic renal insufficiency with hypertension (rated as 60 percent from March 31, 2005, through February 2, 2012), atrial fibrillation, and chronic arrhythmia; type II diabetes mellitus with erectile dysfunction; bilateral peripheral neuropathy of the lower extremities associated with diabetes mellitus; a depressive disorder not otherwise specified; and congestive heart failure (rated as 60 percent from March 7, 2010, through February 3, 2011). The service-connected disabilities were rated as 90 percent disabling during that time period. 4. For the period prior to February 4, 2011, the evidence is equipoise as to whether the Veteran's service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a total disability rating based on individual unemployability due to service-connected disability prior to February 4, 2011, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Governing Law and Regulation Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose, disabilities affecting a single system, e.g., orthopedic, will be considered a single disability. 38 C.F.R. § 4.16(a). Substantially gainful employment suggests a living wage. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Age cannot be considered as a factor in evaluating a service-connected disability. Unemployability associated with advancing age or intercurrent disability cannot be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Analysis The Veteran filed his claim for entitlement to a total rating based on individual unemployability in September 2007. He has not worked since August 30, 2007 when he stopped working as a security guard. He has two years of college education and no additional education or vocational training. He argues that he is unable to work because of discomfort due to his bilateral peripheral neuropathy in the lower extremities and his need for frequent bathroom breaks due to his diabetes mellitus and chronic renal insufficiency. From October 31, 2006, to April 7, 2008, the Veteran was service-connected for chronic renal insufficiency with hypertension, atrial fibrillation, and chronic arrhythmia; type II diabetes mellitus with erectile dysfunction; and bilateral peripheral neuropathy of the lower extremities associated with diabetes mellitus. The service-connected disabilities were rated as 70 percent disabling during that time period, and the Veteran's chronic renal insufficiency was evaluated as 60 percent disabling. From April 8, 2008, to March 6, 2010, the Veteran was service-connected for chronic renal insufficiency with hypertension, atrial fibrillation, and chronic arrhythmia; type II diabetes mellitus with erectile dysfunction; bilateral peripheral neuropathy of the lower extremities associated with diabetes mellitus; and a depressive disorder not otherwise specified. The service-connected disabilities were rated as 80 percent disabling during that time period, and the Veteran's chronic renal insufficiency was rated as 60 percent disabling. From March 7, 2010, to February 3, 2011, the Veteran was service-connected for chronic renal insufficiency with hypertension, atrial fibrillation, and chronic arrhythmia; type II diabetes mellitus with erectile dysfunction; bilateral peripheral neuropathy of the lower extremities associated with diabetes mellitus; a depressive disorder not otherwise specified; and congestive heart failure. The service-connected disabilities were rated as 90 percent disabling during that time period. During that period, the Veteran's chronic renal insufficiency was evaluated as 60 percent disabling and his congestive heart failure was evaluated as 60 percent disabling. The service-connected disabilities have been rated as at 70 percent disabling for the entire period under consideration prior to February 4, 2011, and he had at least one disability evaluated as in excess of 40 percent disabled during that period, which makes him eligible for consideration under 38 C.F.R. § 4.16(a). There is somewhat conflicting evidence on whether the Veteran's service-connected disabilities render him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. An October 2007 VA general medical examiner opined that the Veteran was not unemployable for physical or sedentary occupations due to his well-controlled, diet-treated diabetes mellitus as well as his erectile dysfunction, chronic renal insufficiency, hypertension, and atrial fibrillation. That examiner did, however, opine that he is unemployable as to physical occupations due to bilateral peripheral neuropathy of the lower extremities but that he was not unemployable as to sedentary occupations due to that disability. A May 2008 VA psychological examiner indicated that the Veteran's depressive disorder not otherwise specified was not severe enough to interfere with occupational and social functioning. In a January 2009 addendum to the May 2008 VA examination report, the examiner reported that there was no reason to change his professional opinion on whether the depressive disorder rendered the appellant unemployable. An January 2009 VA general medical examiner opined that the Veteran's diabetes mellitus would have a mild impact on his ability to perform physical and sedentary employment. The examiner added that the erectile dysfunction and hypertension would have no impact on his ability to perform physical or sedentary employment. The examiner indicated that the bilateral peripheral neuropathy of the lower extremities would have a moderate impact on his ability to perform physical and sedentary activities because of his inability to stand or sit for more than 10 to 20 minutes at a time. The examiner stated that the chronic renal insufficiency would have a mild impact on his ability to perform physical and sedentary employment due to fatigue. The examiner opined that the atrial fibrillation with chronic arrhythmia would have a moderate impact on the Veteran's ability to perform physical employment due to fatigue associated with the atrial fibrillation and the need to avoid possible injury from contact with hard objects because of easy bruising and bleeding associated with treatment for atrial fibrillation, but that the atrial fibrillation with chronic arrhythmia would have no impact on his ability to perform sedentary employment. In a December 2009 decision, the Social Security Administration granted disability benefits to the Veteran effective August 30, 2007. Although the agency considered non-service-connected disabilities in finding him disabled, the primary disability was diabetes mellitus and the secondary disability was diabetic neuropathy. The October 2007 did not address any employment impairment caused by the chronic arrhythmia. Neither the October 2007 VA examiner nor the January 2009 VA examiner addressed any employment impairment due to frequent urination due to the service-connected diabetes mellitus and chronic renal insufficiency. The Board notes that a February 2012 VA examiner, on the other hand, stated that the diabetes mellitus and chronic renal insufficiency resulted in increased urination that would interfere with the Veteran's ability to work. A factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). With respect to the Social Security decision, VA is not bound by the findings of disability and/or unemployability made by other agencies, including the Social Security Administration. Still, that agency found that the appellant is disabled primarily because of his service-connected diabetes mellitus and associated bilateral peripheral neuropathy of the lower extremities. Thus, he was granted Social Security disability benefits due to a service-connected disability. The Board finds that there exists an approximate balance of evidence for and against the claim. Taking into account his education and work experience, as well as the specific forms of impairment resulting from his various service-connected disabilities, the Board finds that the evidence is equally balanced as to whether the Veteran's service-connected disabilities prior to February 4, 2011, rendered him unemployable from performing substantially gainful employment. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, entitlement to a total rating based on individual unemployability is in order. ORDER Entitlement to a total rating based on individual unemployability prior to February 4, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs