Citation Nr: 1313872 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 09-23 751 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to a total rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION 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). The Veteran served on active duty from January 1948 to July 1968. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from October 2008 and May 2012 rating decisions of the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified from the RO by way of a videoconference hearing held before the undersigned Veterans Law Judge in January 2011. The record contains a transcript of that hearing. The Board remanded the case to the RO for additional development in March 2011 and August 2012. The RO has complied with the remand directives. FINDING OF FACT The service-connected disabilities meet the percentage requirements for the award of a TDIU rating, and the service-connected disabilities as likely as not are shown to preclude the Veteran from obtaining and retaining substantially gainful employment consistent with his educational and work background. CONCLUSION OF LAW The criteria for the assignment of a TDIU rating are met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Board has considered this legislation, but finds that, given the favorable action taken below; no discussion of the VCAA at this point is required. Merits of the Claim Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU rating 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. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. But 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) disabilities 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, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a TDIU rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high 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. Van Hoose, 4 Vet. App. at 363. The Veteran is service-connected for diabetes mellitus, Type II at 40 percent disabling, a chronic duodenal ulcer with anxiety state at 20 percent, peripheral neuropathy of the right lower extremity at 20 percent, peripheral neuropathy of the left lower extremity at 20 percent, peripheral neuropathy of the right upper extremity at 10 percent, and peripheral neuropathy of the left upper extremity at 10 percent. The Veteran is also in receipt of noncompensable ratings for a post-operative deviated nasal septum, post-operative appendectomy, post-operative pilonidal cyst, and erectile dysfunction. The Veteran's combined disability rating is 80 percent. Therefore, the Veteran meets the TDIU eligibility requirements. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in January 2011. He testified that he had difficulty walking regularly due to the pain in his legs. The Veteran underwent a VA examination in April 2011. The examiner stated that his diabetes mellitus affected his functionality regarding a usual occupation by causing increased absenteeism, decreased manual dexterity, problems with lifting or carrying, weakness or fatigue, and pain. The examiner also opined that his peripheral neuropathies of his upper and lower extremities caused poor manual dexterity, secondary to numbness and pain in his hands and his mobility is limited by numbness in his feet. Although it was noted that the Veteran had not worked since 1992, the examiner opined that the service-connected disabilities had moderate to significant effect on his usual occupation and moderate effect on his usual daily activities. In a September 2011 addendum to the VA examination, the examiner opined that the Veteran's service connected diabetes mellitus, Type II and associated peripheral neuropathies of the upper and lower bilateral extremities had a significant impact on his occupational activities. The sole fact that a Veteran is 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. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The evidence shows that the Veteran was last employed in 1992 as a shopkeeper and that he retired due to age and eligibility. He has a high school education. Given the overall limitations imposed on the Veteran by the service-connected disabilities, including limited mobility, likelihood of absenteeism, restriction of strenuous activities, decreased manual dexterity, along with general fatigue, weakness, and pain, the Board finds that the Veteran is prevented from obtaining and retaining substantially gainful employment consistent with his limited education and work history. Therefore, in resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU rating is warranted. 38 U.S.C.A. § 5107(b); see also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A TDIU rating is granted, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs