Citation Nr: 1317025 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-12 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jonathan Bruce, Attorney at Law ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from August 1986 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the San Juan, Puerto Rico Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in February 2012 when it was remanded for additional development. The Board's February 2012 remand included the matter of entitlement to service connection for a psychiatric disorder. An interim, January 2013, rating decision granted service connection for a mood disorder. Hence, the issue is no longer before the Board. The Board notes that in July 2010, the Veteran filed a claim for service connection for a cervical spine disability and radiculopathy of the upper extremities. While review of the record reveals that some development has been done regarding these issues, it does not appear that these issues have been adjudicated (although they are listed as nonservice-connected disabilities on recent rating decisions). They are therefore referred to the Agency of Original Jurisdiction for clarification and any appropriate action. FINDING OF FACT It is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a grant of TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to a TDIU rating, which constitutes a complete grant of the benefits sought on appeal as to that claim. Therefore, a discussion of VA's duties to notify and assist is unnecessary regarding the claim. The Veteran contends that he is entitled to TDIU benefits. Based on the evidence of record, the Board finds that entitlement to a TDIU based on his service-connected disabilities is warranted. A total disability rating 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 as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). The Veteran's service connected disabilities include a psychiatric disorder; a lumbar spine disorder; left lower extremity neuropathy; right lower extremity neuropathy; and hypothyroidism. His combined schedular disability evaluations were 70 percent effective from June 2008, and 90 percent effective from September 2011. His schedular evaluation is currently 100 percent effective from February 2013. Thus, the Veteran met the threshold schedular requirements for an award of TDIU benefits under 38 C.F.R. § 4.16(a) as early as June 2, 2008. Vocational Rehabilitation records show that the Veteran's educational history included completing high school and three years of college before serving in active duty. In May 2008, he was entered into the Vocational Rehabilitation program and began studying at a university to obtain a bachelors degree in business management. On July 2008 VA psychiatric examination, it was noted that the Veteran's usual occupation is as a storage manager, and that he has been unemployed since December 2006 due to an argument with his boss. A June 2009 VA physical medicine rehabilitation report noted the Veteran was currently studying through Vocational Rehabilitation in management, but that he was going to discontinue his studies in August 2009 due to psychiatric illness. A July 2009 VA physical therapy report found that due to the Veteran's low back and left leg pain, there was impaired activity tolerance in standing, sitting, and with ambulation. There was also limited participation in activities that challenge balance. A November 2009 memorandum by the Veteran's Vocational Rehabilitation counseling psychologist, revealed that in a June 2009 meeting, the Veteran expressed his inability to continue in training toward employment due to the deterioration of his physical and mental conditions, although he requested the opportunity to complete his term of college. In an October 2009 counseling session, it was found that the Veteran's physical condition had visibly deteriorated. His grades had also significantly worsened due to his lack of concentration and ability to attend to academic matters given his physical and emotional limitations. It was therefore found that "[g]iven his expressed deterioration of functional abilities in the social and occupational arenas, we have determined that the possibility of achieving an occupational goal is currently not feasible." A November 2010 VA psychiatric progress report noted the Veteran was using knee and back braces for ambulation. On March 2012 VA psychiatric examination, the Veteran was diagnosed with a mood disorder due to his low back disability. The Veteran's level of occupational and social impairment due to his mood disorder was found to be reduced reliability and productivity. It was noted that his symptoms include a depressed mood, anxiety, suspiciousness, mild memory loss, flattened affect, disturbances of motivation and mood, and the inability to establish and maintain effective relationships. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. Significantly, the evidence of record reflects that the Veteran's employment history involves at least some physical labor, the Veteran uses back and knee braces for ambulation, there is impaired activity tolerance in standing, sitting, and with ambulation, and the Veteran's Vocational Rehabilitation counseling psychologist, opined in November 2009 that due to physical and emotional disabilities, it was no longer feasible to achieve an occupational goal. He has been unemployed since approximately December 2006. In these circumstances, the Board finds that the evidence shows that the Veteran's service-connected disabilities effectively render him unable to secure or follow a substantially gainful occupation. Accordingly, the Veteran's appeal of this issue is granted. ORDER TDIU is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs