Citation Nr: 1318257 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 11-33 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to January 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied entitlement to TDIU. 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). FINDINGS OF FACT 1. The Veteran's service-connected disabilities have a combined evaluation for compensation of 80 percent. 2. The Veteran's service-connected disabilities preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for an award of a TDIU due to service-connected disabilities have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that an award of TDIU is warranted as he is unemployable due to service-connected disabilities including posttraumatic stress disorder (PTSD), cold weather injuries of both lower extremities, and arthritis. VA will grant a TDIU when the evidence shows that the veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012); VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry in a claim for TDIU 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board finds that the Veteran meets the minimum schedular criteria for a grant of TDIU. Under 38 C.F.R. § 4.16(a) (2012), if a Veteran is service-connected for two or more disabilities, there shall be at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. The Veteran is currently service-connected for PTSD, rated as 30 percent disabling, residuals of cold weather injuries to both lower extremities, each extremity rated as 30 percent disabling, hearing loss, rated as 20 percent disabling, tinnitus, rated as 10 percent disabling, a scar of the anterior chest wall, rated as 10 percent disabling, osteoarthritis of the right hip and right knee, rated as 10 percent disabling, and scars of the right lower extremity, rated as noncompensably disabling. The combined evaluation for compensation is 80 percent. For the purposes of determining whether the Veteran meets the schedular criteria for an award of TDIU, his residuals of cold weather injuries to the right and left lower extremities are considered one disability. 38 C.F.R. § 4.16(a) (disabilities of one or both lower extremities, including the bilateral factor, are considered one disability). Under the combined ratings table and with application of the bilateral factor, the Veteran's cold weather injuries to the lower extremities combine to a single rating of 60 percent. See 38 C.F.R. § 4.25 (combined ratings table) and 4.26 (bilateral factor). He therefore meets the minimum schedular requirements contained in 38 U.S.C.A. § 4.16(a). The record establishes that the Veteran was last employed in 2006 as a crop adjuster for an insurance company. He worked full-time, but only seasonally, and held the position for 11 years. The Veteran also owned an automobile repair shop for 40 years. The May 2010 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, indicates that he completed high school, but has no other education or training. After review of the evidence of record, the Board finds that the Veteran is unemployable due to his service-connected disabilities as he is precluded from performing gainful employment for which his education and occupational experience would otherwise qualify him. He is service-connected for several disabilities affecting numerous areas of the body, including psychological, orthopedic, and neurological conditions. In January 2012, his primary care physician at the Columbia VA Medical Center (VAMC) provided an opinion in support of the claim, finding that the Veteran was totally unemployable due to his service-connected cold weather injuries and arthritis. The VA physician noted that the Veteran was unable to perform the tasks associated with his previous employment as an auto mechanic and laborer (such as lifting heavy items) and was unsafe in a work environment due to decreased sensation in his legs. The Veteran had also developed hypoxemia with any exertion and required the use of oxygen. The doctor concluded that it was impossible for the Veteran to work in any of his previous professions. Although an October 2011 VA audiologist provided an opinion against the claim for TDIU, the Board finds that it is outweighed by the other evidence of record. The October 2011 VA opinion was limited to consideration of whether the Veteran's service-connected hearing loss and tinnitus alone resulted in unemployability. The VA examiner did not address the severity or effect on employability of any of the Veteran's other service-connected disabilities and the probative value of the medical opinion is therefore reduced. The record also contains other evidence in favor of the claim for TDIU. Several VA examiners who examined the Veteran's PTSD, scars, arthritis, and cold weather injuries in July 2010, May 2011, and October 2011 examinations, identified occupational effects from the service-connected conditions. The Veteran's past work experience is also limited and he has no education or training beyond the high school level. The Board finds that the evidence of record establishes that the Veteran's service-connected disabilities have rendered him unemployable. In reaching this conclusion, the Board has considered the Veteran's educational and industrial background and the opinion of the January 2012 VA primary care provider. The Board finds that the Veteran is unable to follow a substantially gainful occupation due to his service-connected disabilities and should be rated as totally disabled. The Board also finds that VA has substantially satisfied the duties to notify and assist. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claim. ORDER Entitlement to TDIU is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs