Citation Nr: 1317478 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 05-35 881A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 3, 2009. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied entitlement to a TDIU. The Veteran perfected an appeal. He testified at a personal hearing before a Decision Review Officer in December 2006. A transcript is of record. The Board issued a decision in February 2008 denying the claim for entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2009 Order, the Court granted an April 2009 Joint Motion for Remand (Joint Motion), vacated the Board's February 2008 decision, and remanded the matter back to the Board. The issue was remanded by the Board in February 2010. In a March 2012 decision, the Board denied entitlement to a TDIU prior to March 3, 2009 but granted entitlement to a TDIU as of March 31, 2012 (with discussion as to how the award of a 100 percent rating for prostate cancer from March 3, 2009, to January 31, 2012, rendered the claim for TDIU moot during that period). The Veteran appealed that portion of the decision that denied a TDIU prior to March 3, 2009, to the Court. In an August 2012 Order, the Court granted an August 2012 Joint Motion and remanded the matter back to the Board. It has been returned for appellate review. In its March 2012 decision, the Board also remanded the issue of whether a reduction in the rating for prostate cancer from 100 percent to 40 percent, effective January 31, 2012, was proper. That issue remains pending and is not currently before the Board. The Veteran's attorney submitted additional evidence directly to the Board in February 2013, which was accompanied by a waiver of RO consideration. The evidence will therefore be considered in this decision. 38 C.F.R. § 20.1304 (2012). FINDING OF FACT The evidence of record demonstrates that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment prior to March 3, 2009. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met prior to March 3, 2009. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). 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). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person 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, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a). Prior to March 3, 2009, service connection was in effect for the following disabilities: coronary artery disease associated with type 2 diabetes mellitus with diabetic nephropathy, hypertension and erectile dysfunction, evaluated as 60 percent disabling; type 2 diabetes mellitus with diabetic nephropathy, hypertension and erectile dysfunction, evaluated as 20 percent disabling; and diabetic retinopathy associated with type 2 diabetes mellitus with diabetic nephropathy, hypertension and erectile dysfunction, evaluated as 10 percent disabling. The Veteran's combined rating was 70 percent. Therefore, the schedular requirements set forth in 38 C.F.R. § 4.16(a) for consideration of TDIU were met prior to March 3, 2009. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran asserts that he cannot work due to his service-connected heart disorder, diabetes mellitus, and diabetic retinopathy. On his VA Form 21-8940 received in December 2004, he reported that he had four years of high school education and that he had last worked in 2001, though it was also noted that he worked from November 1987 until "the present" and that he was self-employed in the plumbing and heating industry. The Veteran also reported that his disability affected his full time employment beginning in March 2002, which was when he last worked full time and became too disabled to work. He indicated that his total earned income for the past 12 months was $8,647, which included his spouse's earnings. During his December 2006 hearing, the Veteran testified that he had not worked since his heart attack in March 2002. Prior to that, he had worked as a sole proprietor of a plumbing and heating business. After the heart attack, he changed the form of business to a limited liability company (LLC), and under that form, he has to pay self-employment taxes. He indicated that he owned the LLC. The Veteran reported that any earnings after the heart attack were not due to his actual work in the field as plumber and that his son did 100 percent of the actual work in the field. The Veteran indicated that he continued to obtain necessary insurance and obtain permits for plumbing and heating projects, because only he had a state contractor's license. He noted that because his physician recommended against lifting over 25 pounds, he was unable to do much of the actual plumbing and heating field work. He indicated that the LLC earned $11,000 in the previous year, which went to him and his wife, and that his wife earned a salary for bookkeeping. In a January 2013 affidavit, the Veteran reported that he had a plumbing and hearing business from 1986 through 2007; that he had not had income from the company since he closed the business in 2007; that he was unable to physically work at his company from 2002, due to many health issues to include his heart condition, diabetes, and diabetic retinopathy; that his son continued to work for the company until February 2007; and that until February 2007, he took some income from the company. The Veteran also reported that he had some horses on his property but that when he spends time with them, it is a hobby, not a job. He further indicated that he is not able to do heavy physical work due to his service-connected disabilities and that other people come to care for the horses. Lastly, the Veteran indicated that he spends only a few hours per week with the horses and that his wife is the primary financial provider due to his inability to work. The evidence in this case includes VA and private medical records, including reports of VA examinations and medical records associated with a claim for Social Security Administration (SSA) disability benefits. These records include several opinions regarding the Veteran's employability. In a January 2005 vocational analysis conducted in conjunction with the Veteran's claim for SSA benefits, the examiner concluded that the Veteran could not be expected to return to his position as a plumber due to the exertion requirements of this position and because he cannot be expected to find other work. Although not specifically indicated in this report, the Board notes that the Veteran is entitled to benefits from the SSA based on his heart condition and diabetes mellitus. The Veteran underwent a VA general medical examination in July 2010. The VA examiner concluded that based on the review of records, history, and previous VA examinations, the Veteran had moderate to severe functional limitations due to the combination of his diabetes, hypertension, coronary artery disease, and proliferative diabetic retinopathy and retinal bleeding. The Board notes that the VA examiner also included prostate cancer, but that service connection for this disability was not in effect until March 3, 2009. The VA examiner also determined that due to urinary symptoms, poor vision, fatigue, dyspnea on exertion, and active prostate cancer, it was unlikely the Veteran will be able to work in his own trade as a plumber. In addition, based on his education and employment experience, it is more likely than not that his service-connected disabilities (to include prostate cancer), will greatly impact his ability to secure or maintain substantially gainful employment. Another VA general medical examination was conducted in June 2011. Following a detailed examination, the examiner concluded that it is likely the Veteran would be able to perform gainful sedentary employment with regard to his service-connected conditions, assuming accommodation for frequent urinary voiding. The examiner also determined that given his then-level of performance, it is as likely as not that the Veteran would be able to perform light physical employment. The Veteran submitted a January 2013 individual employability assessment conducted by C.E.B., a vocational consultant. The vocational consultant indicated that he had reviewed the Veteran's claims folder and directly assessed his vocational employability via a one hour telephone conference. In pertinent part, the vocational consultant determined that prior to the date on which the Veteran filed his claim for a TDIU, he was engaged in supported/sheltered employment and that by the end of 2004, he became totally unable to work due solely to the effects from his cardiac condition and diabetes. The vocational consultant indicated that if the Veteran's credibly disabling service-connected disabilities (as corroborated through the claims file, including the SSA determinations, are combined with the Veteran's reported limitations, it was his opinion that it is at least as likely as not that his service-connected disabilities alone prevent him from securing and following any substantially gainful occupation. The vocational consultant was of the opinion that the Veteran's "TDIU start date began in March 2002, which was the date of his cardiac event and the time he began to steadily and significantly reduce his work hours and business involvement due solely to his service-connected fatigue..." The record contains three opinions in favor of the claim. In summary, the January 2005 vocational analysis, which appears to be based with consideration of the Veteran's heart condition and diabetes mellitus, concluded that the Veteran could not be expected to return to his position as a plumber due to the exertion requirements of this position and because he cannot be expected to find other work; the July 2010 VA examiner concluded that the Veteran had moderate to severe functional limitations due to the combination of his diabetes, hypertension, coronary artery disease, and proliferative diabetic retinopathy and retinal bleeding, that it was unlikely the Veteran would be able to work in his own trade as a plumber as a result of urinary symptoms, poor vision, fatigue, dyspnea on exertion, and active prostate cancer, and that based on his education and employment experience, it is more likely than not that the Veteran's service-connected disabilities would greatly impact his ability to secure or maintain substantially gainful employment; and the January 2013 individual employability assessment, which, in essence, determined that the Veteran became totally unable to work due solely to the effects from his cardiac condition and diabetes by the end of 2004, and that it is at least as likely as not that the Veteran's service-connected disabilities alone prevent him from securing and following any substantially gainful occupation. The only opinion that does not support the claim is that provided by the June 2011 VA examiner. Given the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record demonstrates that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation prior to March 3, 2009. Accordingly, TDIU is warranted. The Board is granting entitlement to a TDIU prior to March 3, 2009, which represents a complete grant of the benefit sought on appeal. See Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Hart v. Mansfield, 21 Vet. App. 505 (2007). Any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. ORDER Entitlement to TDIU is granted prior to March 3, 2009. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs