Citation Nr: 1318158 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 04-33 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from October 1950 to August 1954, with prior active duty training and inactive duty training in the Marine Corps Reserve. This matter initially came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In that decision, the RO, among other things, denied entitlement to a TDIU. In August 2010, the Veteran testified during a hearing at the Board before the undersigned; a transcript of that hearing is of record. The Board remanded the claim in October 2010 and denied it in April 2011. In a September 2011 Order, the United States Court of Appeals for Veterans Claims (the Court) granted a Joint Motion by counsel for the Veteran and VA to vacate the Board decision and remand the claim to the Board. The Board remanded the claim in April 2012 to the RO, via the Appeals Management Center (AMC). 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). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's service connected disabilities, as opposed to his non-service connected disabilities, render him unemployable in light of his educational and occupational history. Recent records reveal appellant is at risk for falls and has difficulty with transfers. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is, however, granting the only claim on appeal, for entitlement to a TDIU, further discussion of the VCAA is unnecessary. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disability from obtaining and maintaining any form of substantially gainful employment consistent with his education and occupational experience. 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, but not age and the impairment caused by non-service connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran meets the schedular standards and is unemployable under the applicable definition. The dispositive question is whether his unemployability is due to his service connected, as opposed to his non-service connected, disabilities. The Veteran is in receipt of service connection for below the knee amputation due to peripheral vascular disease of the right lower extremity, evaluated as 40 percent disabling, and osteoarthritis of the left knee associated with below the knee amputation, evaluated as 30 percent disabling. The combined disability rating is 60 percent, and the involvement of both lower extremities warrants consideration of the disabilities as a single disability. 38 C.F.R. § 4.16(a)(1). This single disability rated 60 percent qualifies the Veteran for consideration of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). As noted by the parties to the Joint Motion and conceded by the Board in its April 2011 decision, the Veteran is currently unemployed and significantly disabled due to his service connected disabilities. The Veteran is also significantly disabled from non-service connected diabetes, hypertension, diabetic neuropathy, chronic kidney disease, erectile dysfunction, diabetic retinopathy, peripheral vascular disease with subsequent below the knee amputation and transmetatarsal amputation of the left foot with multiple ulcers, transient ischema attack with no residuals, viral verruca of the left heel with ulcers, spinal stenosis, degenerative disk disease, arthritis of the right shoulder, arthritis of the left ankle, ruptured left Achilles tendon, advanced degenerative arthritis of the right hand and arthritis of the bilateral knees, as diagnosed on the March 2008 VA examination. Any analysis of the current degree of unemployability attributable to the service-connected condition as compared to the degree of unemployability attributable to the non-service-connected conditions is required in the analysis of the claim. Cathell v. Brown, 8 Vet. App. 539, 544-45 (1996). In its April 2012 remand, the Board instructed that the Veteran be afforded a new VA examination to address whether his service connected disabilities render him unemployable in light of his educational and occupational experience. The RO/AMC repeatedly attempted to afford the Veteran a VA examination but was informed that, because the Veteran was in the acute care unit of the VA medical Center, VA physicians would not perform such an examination. Thus, through the fault of neither the RO/AMC nor the Veteran, the Board must decide the claim based on the evidence of record, without benefit of an additional examination. Cf. 38 C.F.R. § 3.655(a),(b). In this case, the evidence does include records in Virtual VA documenting some current treatment. Those records, in pertinent part reveal that he has trouble with transfers necessitated by his bilateral lower extremity impairment. He also is noted to now be at risk for falls. The Board has before it multiple opinions indicating that the Veteran is unemployable without a clear explanation of whether the unemployability is due to both his service connected and his non-service connected disabilities. In a March 2008 treatment note, Dr. Pendergast indicated that the Veteran had a right below the knee amputation and was on dialysis. He was "indeed unemployable sight unseen." In another March 2008 treatment note, Dr. Pendergast indicated that he had not seen the Veteran for several months, but that the Veteran was unable to work even before that time due to his multiple medical issues and inability to ambulate on his own. He opined that the Veteran working in the future was not a reasonable goal. As noted above, the Veteran underwent a VA examination in March 2008. The March 2008 VA examiner rendered two conclusions. First, the examiner concluded that the Veteran would not be able to engage in any type of industrial employment due to the pain and instability from the right below the knee amputation and left foot amputation. Second, the examiner concluded that the Veteran would not be able to engage in any type of industrial or sedentary employment due to his bilateral hand pain, right arm pain, right shoulder pain, bilateral knee pain and neck and back pain due to his inability to sit, stand or walk for any prolonged period of time. The Board is thus faced with two opinions that are ambiguous as to whether the Veteran's service-connected disabilities alone render him unemployable. It is not, however, the ultimate opinion of the physicians that is dispositive; rather, the Board must render its opinion on this question based on the findings of the physicians. Cf. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) ("The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability"). In his November 2008 formal TDIU claim, the Veteran indicated that he had a high school education and worked for Westinghouse as a supervisor for more than 30 years, including as a plant supervisor with significant additional training, before taking early retirement in 1988. He is now 83 years old. However, prior employment or unemployment status and age are immaterial if in the judgment of the Board the Veteran's service connected disabilities render him unemployable. The above evidence reflects that the Veteran's right and left leg disabilities are significantly disabling and would make it extremely difficult, if not impossible, for a person with his educational and occupational experience to obtain and maintain substantially gainful employment. This is especially true as a risk for falls and in an individual with difficulty transferring. Given the severity of the non-service connected disabilities, it is impossible to say precisely what the Veteran's abilities would be if he only had the service connected disabilities or the precise degree of impairment caused by the service connected disabilities. When it is not possible to separate the effects of the service connected and non-service connected disabilities, the benefit of the doubt doctrine dictates that such signs and symptoms be attributed to the service-connected disability or disabilities. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)). By similar reasoning, where, as here, it is not possible to identify the precise degree of impairment caused by service connected as opposed to non-service connected disabilities and the Veteran is unemployable, and the service-connected disabilities significantly impair the Veteran, the Board will apply the benefit of the doubt doctrine to find that the service connected disabilities render him unemployable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Entitlement to a TDIU is therefore warranted. ORDER Entitlement to a TDIU is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs