Citation Nr: 1318397 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-32 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from July 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. In February 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. At the hearing, the Veteran submitted additional written evidence with a waiver of RO consideration. In April 2013, the Veteran again submitted written evidence; he did not submit a waiver of RO adjudication of that evidence. The Board finds that a remand for the RO to consider the April 2013 evidence is not necessary as the Board, in the decision below, grants the Veteran's claim. Therefore, he is not prejudiced by the lack of RO consideration of the evidence. FINDINGS OF FACT 1. The Veteran is service connected for coronary artery disease, evaluated as 60 percent disabling from January 9, 2006; diabetes mellitus, evaluated as 20 percent disabling from November 8, 2005; peripheral neuropathy of the left foot, evaluated as 10 percent disabling from April 4, 2006; peripheral neuropathy of the right foot, evaluated as 10 percent disabling from April 4, 2006; a skin disability, evaluated as noncompensable; and cortical cataracts with dry eyes evaluated as noncompensable; for a combined evaluation of 20 percent from November 8, 2005 and a combined evaluation of 70 percent from January 9, 2006. 2. The Veteran's most recent occupation was as the owner of a printing business from 1985 to 2007. 3. Clinical evidence received in 2013 demonstrates that Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Given the favorable decision, any deficiencies with respect to notice or assistance to the claimant are considered non prejudicial. Legal criteria Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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 a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, including the bilateral factor, will be considered as one disability, as will disabilities of common etiology. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the current claim. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran is service connected for coronary artery disease (CAD), evaluated as 60 percent disabling from January 9, 2006; diabetes mellitus, evaluated as 20 percent disabling from November 8, 2005; peripheral neuropathy of the left foot, evaluated as 10 percent disabling from April 4, 2006; peripheral neuropathy of the right foot, evaluated as 10 percent disabling from April 4, 2006; a skin disability, evaluated as noncompensable; and cortical cataracts with dry eyes, evaluated as noncompensable; for a combined evaluation of 20 percent from November 8, 2005 and a combined evaluation of 70 percent from January 9, 2006. The Veteran also has the following disabilities for which he is not service connected: joint, bone, back, right foot, left foot, hearing loss, hypertension, sexual dysfunction, nicotine dependence, and a chronic disability, other than noted above, due to herbicide exposure. The Veteran is eligible for TDIU provided that the competent credible evidence reflects that he has a service-connected disability or disabilities which prevent him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran filed a claim for TDIU in November 2007. At that time, he stated that due to his diabetes, neuropathy, and CAD, it was impossible for him to carry on his daily function as a business owner, and he was forced to sell his business. He further stated that he had been self-employed for the past 20 years in the printing field as a working owner. A January 2008 VA examination report reflects the opinion of the examiner that the Veteran can perform sedentary employment, "should he have the skills to do so." It was noted that his CAD and peripheral neuropathy precluded physical labor as a viable employment. A January 2008 statement by the Veteran reflects that he had owned and operated a printing business since 1985. He reported that his duties included computer pricing of jobs, and running the printing presses, folding machines, and the power paper cutter. He reported that he supervised as many as 10 employees. He further stated that after being diagnosed with diabetes and CAD, he was no longer able to function physically or mentally at the job. He stated that he had to hire a working manager to take his place. He further stated that he then developed peripheral neuropathy and is not able to stand on his feet for any length of time. He also opined that his medication for his peripheral neuropathy affects his mental abilities. The Veteran stated that he sold his business in August 2007 due to his inability to work. A September 2008 handwritten note, on a prescription form, is associated with the claims file. The signature is illegible; however, the Veteran avers that it is by Dr. M.G. The note states as follows: [Patient] with known CAD [and] multiple interventions to coronary arteries. Most recent event 6/29/08 - acute inferior wall [myocardial infarction] - unable to place stent in RCA. To be managed medically at present. Please excuse from employment. In an October 2008 statement the Veteran reported that he felt that he had an inability to sit still for more than 30 minutes primarily due to his medications. He reported that hydrochlorothiazide causes him to urinate every 15 minutes. He also stated that the only job which he ever had in civilian life was as a printer. A May 2009 VA optometry examination report is of record. The examiner noted that the Veteran reported that he cannot see well when running the printer and has to use his glasses and be in close proximity to the printer. The examiner opined that the Veteran's mild dry eyes would not preclude him from any type of employment. He also noted that the cortical cataracts should not hamper his ability to perform most jobs, including as a printer, as his visual acuity is at least 20/25 with glasses. The examiner also stated that, excluding night driving, the Veteran should be eligible for most sedentary forms of employment. A June 2009 VA examination report is of record. It reflects that the Veteran reported that his peripheral neuropathy makes his feet feel like he is walking on "a bed of needles." He reported that he had to stop walking at the mall for exercise due to his feet, which have a burning sensation which increases with walking. The Veteran reported that he believed that his use of the medication gabapentin was causing memory problems. The examiner stated, in pertinent part, as follows: This examiner did not get a history that the veteran is actually not able to function because of his heart condition but the veteran stated that it was his feet and that he has problems walking. This is his main complaint as to why he would be unemployable. Review of the last compensation exam indicated that the examiner thought that he would be able to have a sedentary type of employment and this examiner agrees with that. The only possible way that the service-connection could be making him unemployable is if the gabapentin were causing his current memory problems and this examiner does not feel that the current memory problems are solely the responsibility of the gabapentin and therefore would find it difficult to say for this reason he is unemployable. This examiner feels that with a sedentary job he would be able to be employed although this can be a function of both his age and his background experience as to whether he actually would be able to be gainfully employed. As noted above this examiner feels that a sedentary occupation if he has the background training would be a possibility. As noted above, the cardiologist felt he was unemployable for cardiac and this examiner did not find any significant disabling symptoms from his cardiac condition. In a September 2009 statement, the Veteran stated that he is unable to do sedentary work because his medication affects his "train of thought" and his hands fall asleep often. The Veteran is not service connected for a hand disability; thus, it is not relevant to the issue of entitlement to TDIU. In a September 2009 statement the Veteran's spouse, P.B. , stated that the Veteran is unable to stand for long periods of time, has memory problems, and is unable to sit for long periods of time because his hands fall asleep and he has to shake them to get the feeling back. The Veteran testified at a February 2013 Travel Board hearing that he cannot stand for long periods of time, has fatigue due to his heart condition, and goes to the bathroom "quite often" due to hydrochlorothiazide. Correspondence by Dr. S.P, received by VA in April 2013 is also of record. It states, in pertinent part, as follows: His recent nuclear stress test revealed nonperfusing inferolateral wall consistent with previous myocardial infarctions. His current symptoms include fatigue and tiredness, chronic pain secondary to peripheral neuropathy and limitation of activities because of PVD. In short, considering his severity of CAD and multiple comorbid conditions, he is not physically fit to be employed for any gainful employment. His condition is progressive and I doubt it would change significantly to the point that he would be able to work in future. The Board has considered that the Veteran is precluded from physical labor due to his CAD, that he has peripheral neuropathy of the bilateral feet, has complaints of fatigue due to his CAD, has reported frequent urination as a side effect of his medication, and may have some memory problems due, in part, to his medication. (The VA examiner stated that gabapentin was not solely responsible for the Veteran's memory problems; however, this opinion indicates that it could be responsible for a portion of his memory problems.) The Board has considered the education and work history of the Veteran. The record reflects that he had been employed in the printing business for more than 20 years until 2007. The record also reflects that the Veteran has taken college courses in basic refrigeration and solar energy systems and at one time was studying to obtain an Associate of Applied Science Degree in General Technology; however this was more than 20 years ago. The Board has also considered the clinical evidence of record, as well as the lay statements. A lay statement is competent to establish the presence of observable symptomatology. Thus, the Veteran is competent to describe the observable symptomatology that is caused by his service-connected disabilities and to attest to the severity of such, to include feelings of fatigue, tingling, and numbness. He is also competent to describe his difficulty in maintaining his business. The medical evidence of record also supports the Veteran's contention that he is unable to maintain substantial gainful employment, consistent with his experience and education, on account of his service connected disabilities. In this regard, the Veteran's occupational history involved physical labor (i.e. manning machines), and the most recent clinical opinion is that he is precluded from employment. The Veteran's physician, S.P. stated that the Veteran had fatigue, tiredness, and chronic pain secondary to peripheral neuropathy. Such symptoms would reasonably have an adverse affect on obtaining employment consistent with the Veteran's employment experience. Based on the Veteran's physical limitations, the most recent clinical opinion, and the Veteran's job experience, and in giving the benefit of the doubt to the Veteran, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. ORDER Entitlement to a TDIU is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs