Citation Nr: 1318802 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-39 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran had active service from February 1957 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. Jurisdiction over the case was subsequently transferred to the RO in Winston-Salem, North Carolina. When this case was before the Board in December 2011, it was remanded for further development. In November 2012, after the case was returned to the Board, the Veteran submitted additional evidence in support the claim on appeal along with a waiver of his right to have the evidence initially considered by the originating agency. Thus, the Board may properly consider the newly received evidence. 38 C.F.R. § 20.1304 (2012). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The record before the Board consists of the Veteran's paper claims file as well as an electronic file known as Virtual VA. FINDING OF FACT The Veteran's service-connected disabilities are assigned a combined rating of 80 percent and are sufficient by themselves to render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational background. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the effective-date element of this claim. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria 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. A finding of total disability is appropriate, "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." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). A TDIU may be assigned if 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 a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.41, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disability of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In addition, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Factual Background and Analysis The Veteran claims that he is unable to maintain and secure substantially gainful employment due to the pain he experiences from his service-connected right leg and ankle disorders. The Veteran's combined rating for his service-connected disabilities, to include the bilateral factor, is 80 percent and he is service-connected for the following disabilities: fracture of the right talus with shortening of the right leg and degenerative joint disease (30 percent disabling); arthritis of the right knee (20 percent disabling); fracture of the left zygomatic-maxillary complex (20 percent disabling); post-traumatic deviated nasal septum (10 percent disabling); scar on the right leg (10 percent disabling); diabetes mellitus, type II (10 percent disabling); healed fracture of the left ramus (10 percent disabling); healed fracture of the right acetabulum (10 percent disabling); tinnitus (10 percent disabling); bilateral hearing loss (noncompensable); healed fracture of the right fibula (noncompensable); and a scar on the lower lip and bilateral nares (noncompensable). On his initial claim for TDIU benefits submitted in July 2007, the Veteran reported that he last worked on a full time basis as a logistic technician from November 1996 to June 2004. He indicated that the pain in his hands and legs began to affect his employment in April 2004, and that he was unable to continue his employment due to pain in his hips and legs. Regarding his educational history, the Veteran relayed that he has completed two years of college. In a statement received in July 2007, the Veteran reported experiencing pain and "catching" of his hip, which he stated caused swelling in his legs. He stated that the increased severity of his pain with daily movement affected his ability to walk, stand, bend, or kneel, and that he has to rest after ten to fifteen minutes of any vigorous activity due to pain. Reportedly, he required the support of another person or a cane for walking due to his left hip pain. He also described the need to stop and massage his leg while driving home from work due to leg cramps. Additional symptoms included pain from poor circulation, cramps, swelling, and numbness. The Veteran reported experiencing a loss of balance and falls due to his leg pain. A Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192) submitted in August 2007 by the Department of the Army, the Veteran's former employer, relays that the Veteran worked full time from October 1982 until June 2004 as a supply technician. The reason for his employment termination was listed as voluntary retirement. Following an October 2007 VA bones and joints examination, the VA examiner rendered a diagnosis of traumatic arthritis of the right knee and status post fracture of the right tibial plateau. The examiner identified "no kind of physical exertion" as the impact of the conditions on the Veteran's physical and sedentary employment. The examiner stated, "n do sedentary job, which requires less walking and standing". On his December 2008 VA Form 9, the Veteran reiterated his assertion that he is unable to work due to his service-connected disabilities, to include any sedentary work. He relayed that he was trained as a helicopter and automobile mechanic. In addition to his report of having pain in his hands (for which he is not service-connected), the Veteran reported experiencing pain in his hip and legs when working. The Veteran underwent a VA general medical examination in January 2012 to determine the impact of his service-connected disabilities on his ability to maintain substantially gainful employment. The Veteran reported that he retired from his employment as a logistics tech in 2004, which involved moving equipment, picking up equipment, ordering medical equipment, and lifting and carrying medical supplies. Following a clinical examination and review of the record, the examiner opined that the Veteran's right talus fracture, right knee arthritis, right acetabulum fracture, and right fibula fracture prevented him from working in a job such as the job he had prior to retirement. The examiner explained that the Veteran is unable to lift, carry, and ride for distances. Regarding the Veteran's remaining service-connected disabilities (bilateral hearing loss, tinnitus, deviated septum, right leg scar, fracture of the ramus, diabetes mellitus, and dental disability), January 2012 and August 2012 VA examination reports include medical opinions that these disabilities would not prevent the Veteran from working. In a January 2012 statement, the Veteran reported experiencing constant pain in his hips, lower back, and right knee, ankle, and heel. He reported that his legs cramped up at any time, to include while sitting, walking, standing, or driving. The Veteran stated that he had muscle cramps in his legs and feet while sleeping and that he often had to massage and elevate his feet. On a Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) submitted in January 2012, the Veteran reiterated his report that he last worked full time in June 2004. He also reported that he was self-employed from 2004 to 2010 in a craft business, from which he earned a gross total of $300 per month; he also reported that he earned a total of $300 in the previous twelve months. In November 2012, the Veteran reported that he previously miscalculated his monthly income reported on the January 2012 VA Form 21-8940, and clarified that his monthly income from his self-owned business was $25. Based on the foregoing evidence and with resolution of reasonable doubt in the Veteran's favor, the Board finds that the Veteran is unemployable as a result of his service-connected right talus fracture, right knee, right acetabulum fracture, and right fibula fracture disabilities. Specifically, the symptoms and manifestations of the Veteran's multiple disabilities affecting his right lower extremity identified in VA treatment records and the Veteran's lay statements, as well as the January 2012 VA examiner's opinion that the Veteran would be unable to perform any job similar to his previous occupation, support the Board's conclusion that the Veteran is unemployable due to his service-connected disabilities. Accordingly, a total disability rating based on individual unemployability due to the service-connected disabilities is warranted. ORDER Entitlement to a TDIU is granted, subject to the criteria governing the award of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs