Citation Nr: 1321934 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 08-06 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for hypertension. 2. Whether new and material evidence has been received to reopen a claim of service connection for a heart disorder. 3. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from May 1966 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2007, December 2011 and December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. A Board decision in May 2009 denied the issue of entitlement to a TDIU. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in December 2010, the Court vacates the Board's denial and remanded the case for readjudication in accordance with the decision. The issue of entitlement to a TDIU was remanded in October 2011 to provide the Veteran with an application for TDIU detailing his employment history and to afford him VA examinations. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. By an October 2007 decision, the Board denied service connection for hypertension and a heart disorder. 2. Evidence received after the October 2007 denial does not relate to unestablished facts necessary to substantiate the claims and does not raise a reasonable possibility of substantiating those underlying claims. 3. The Veteran is service-connected for spinal stenosis at L3-4 and L4-5 with degenerative facet disease at L4-5 and L5-S1, evaluated as 40 percent disabling; right lower extremity radiculopathy, evaluated as 40 percent disabling; depression and mood disorder, evaluated as 30 percent disabling; left lower extremity radiculopathy, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as zero percent or noncompensably disabling. The Veteran's combined service-connected disability rating is 80 percent. 4. The Veteran is marginally employed as a farmer. 5. The Veteran's service-connected disabilities preclude his substantially gainful employment. CONCLUSIONS OF LAW 1. The Board's October 2007 denial of service connection for hypertension and a heart disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. Evidence received since the final October 2007 decision is not new and material. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 3. The criteria for an award of a TDIU have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Regarding the issue of entitlement to a TDIU, the Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to this issue, no further discussion of these VCAA requirements is required with respect to this claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). As for the remaining issues on appeal, letters dated in October 2011 (hypertension) and October 2012 (heart disorder) complied with VA's duty to notify the Veteran. These letters apprised the Veteran of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the appellant, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letters also notified the Veteran of the manner in which disability ratings and effective dates are assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The correspondences also informed the Veteran of the basis of the prior final denials of his claims for service connection for hypertension and a heart disorder in October 2007. The Board observes that the last final decisions identified in the October 2011 and October 2012 correspondences were the RO rating decisions denying the Veteran's claims for hypertension in January 2005 and for a heart disorder in February 2006. However, although the date of the last final decisions were incorrectly identified, the October 2011 letter notified the Veteran that his hypertension claim was previously denied because there was no evidence of a nexus to his military service condition and that evidence submitted must relate to that fact; the October 2012 letter notified the Veteran that his heart disorder claim was previously denied because there was no medical evidence showing that he had that condition and that evidence submitted must relate to that fact. Accordingly, the Board concludes that VA has met its duty to notify the Veteran in this appeal. Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs) and post-service medical records in furtherance of his claims. VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. The Board recognizes that the Veteran has not been afforded a VA examination in connection with his petitions to reopen; the Board observes that an examination is not necessary if no new and material evidence has been received (as is the case in the instant appeal). 38 C.F.R. § 3.159(c)(4)(iii). II. Analysis A. New and Material Evidence Service connection for hypertension was denied in October 2007 because the evidence did not show that the Veteran's hypertension was related to his military service. In other words, evidence of record did not reveal a nexus between the Veteran's hypertension and his military service. Service connection for a heart disorder was also denied in October 2007 because the evidence did not show a current heart disorder. In other words, evidence of record did not reveal that the Veteran had a disability for which service connection could be granted. After receiving notice of the October 2007 decision, the Veteran did not initiate an appeal of the denial of those issues. Later, in August 2011 and August 2012, however, he applied to have his claims for hypertension and a heart disorder, respectively, reopened. A decision of the Board is a final decision, effective as of the date stamped on the face of the decision. 38 C.F.R. § 20.1100 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, relevant evidence of record at the time of the October 2007 decision consisted of the Veteran's STRs, an August 2004 private treatment record, VA treatment records dated from July 2003 to June 2007, VA examinations in April 2007, and the Veteran's contentions. His STRs showed no treatment for, or diagnosis of, hypertension or a cardiac disorder. Although he had blood pressure of 140/90 on his enlistment examination in February 1966, there is no indication that hypertension was diagnosed or treated in service. The August 2004 treatment record shows that the Veteran reported having blood pressure of 140/90 in service in May 1966. Since that time, he had been on intermittent blood pressure agents. The Veteran's VA treatment records showed a diagnosis of hypertension, but contained no opinion regarding the etiology. His treatment records did not show the diagnosis of a heart disorder. In this regard, a cardiolite study in January 2004 was normal. The April 2007 VA heart examiner found no current evidence of any coronary disease. The examiner explained that the Veteran did not have any specific coronary complaints; a review of his medical records had not shown any specific evidence of cardiac disease; a cardiolite study a few years ago was normal; he took no medication for a specific heart problem; and he had no complaints. The April 2007 VA hypertension examiner opined that the Veteran's hypertension did not appear to be related to military service. The examiner noted that they could find no documentation at all or any reason that the Veteran's current hypertension was related to service. The Veteran's discharge examination showed normal blood pressure, but the Veteran stated that he did see a private physician about one year after discharge and stated he was taking medication for his blood pressure since then. The examiner did not have access to that information; there was no documentation going that far back in his claims file, so that would be based on his comments. The examiner opined that the likely cause of the Veteran's hypertension was essential in nature. Therefore, they could not find any medical probability that the Veteran had hypertension or any other cardiac disease that was related to his service. Accordingly, at the time of the denial of the claims for service connection for hypertension and a heart disorder, in October 2007, the claims folder contained no competent evidence of nexus between his hypertension and his military service, or competent evidence of a heart disability. Thus, the Board, in October 2007, denied the claims for service connection for hypertension and a heart disorder. The Veteran did not appeal the Board's decision and that denial became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1100 (2012). In reaching the conclusion that the October 2007 decision is final, the Board is cognizant of the recent holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362 (2011). However, 38 C.F.R. § 3.156(b) refers to evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed. 38 C.F.R. § 3.156(b) (2012). Here, the October 2007 Board decision was the appellate decision for the Veteran's initial claims filed in September 2004 and January 2005 for hypertension and a heart disorder, respectively. As such, the Board concludes that the October 2007 Board decision is final. The relevant evidence received since the October 2007 denial consists of VA treatment records dated through March 2013, private treatment records dated from January 1988 to December 2002, a VA general medical examination in September 2012, and the Veteran's contentions. The Veteran's VA treatment records continue to show hypertension but contain no opinion regarding the etiology. The private treatment records show that he had elevated blood pressure as far back as January 1988, but also do not contain any opinion regarding the etiology. None of his treatment records pertaining to hypertension provide any indication that his hypertension was manifest to a degree of 10 percent or more within one year of discharge from service. None of his treatment records show any diagnosis of a heart disorder. At the September 2012 VA examination for his TDIU claim, the Veteran reported hypertension, but did not report any heart disorder. Thus, this newly received evidence does not relate to unestablished facts necessary to reopen the previously denied claims of service connection for hypertension and a heart disorder, because it does not tend to show a nexus between the Veteran's hypertension and his military service, neither does it tend to show that the Veteran has any heart disability. Although additional treatment records dated from 1988 through 2013 are new, they are not material since they fail to show that the Veteran's hypertension is related to his military service, nor do they show any current diagnosis of a heart disorder. The 1988 treatment records also do not indicate that the Veteran's hypertension was manifest to a degree of 10 percent or more within one year of his discharge from service in 1966. No medical professional has provided any opinion showing that the Veteran's hypertension is related to his service, nor has any medical professional diagnosed the Veteran with a heart disorder. In reaching this determination, the Board is cognizant of the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a claimant's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a claimant's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. Id. See also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) & Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Here, the Veteran has not provided any statements indicating that he has a heart disorder or symptoms of a heart disorder or that a medical professional has indicated that his hypertension is related to his military service. Additionally, the statements at the time of the October 2007 decision indicate that the Veteran reported hypertension within one year of discharge from service. He has provided no new statements relevant to a nexus between his hypertension and his military service. Thus, the Veteran has not provided any statements that are new and material. Accordingly, and based on this evidentiary posture, the Board must deny the Veteran's applications to reopen these previously denied issues. B. TDIU The Veteran contends that he is unemployable due to his service-connected disabilities. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2012). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341(a). See also 38 C.F.R. § 4.19 (2012) (age may not be a factor in evaluating service-connected disability or unemployability) & Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the current appeal, service connection has been granted for spinal stenosis at L3-4 and L4-5 with degenerative facet disease at L4-5 and L5-S1, evaluated as 40 percent disabling; right lower extremity radiculopathy, evaluated as 40 percent disabling; depression and mood disorder, evaluated as 30 percent disabling; left lower extremity radiculopathy, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as zero percent or noncompensably disabling. The Veteran's combined service-connected disability rating is 80 percent. As such, the Veteran does meet the preliminary criteria for consideration for entitlement to TDIU on a schedular basis because, his combined rating is 80 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent. Consequently, the Board must now determine whether these service-connected disabilities preclude the Veteran from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of a service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he/she can find employment. Van Hoose, 4 Vet. App. at 363. Moreover, as already noted, an inability to work due to nonservice-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. Initially, the Board observes that the Veteran has not submitted a VA Form 21-8940, "Veterans Application for Increased Compensation Based on Unemployability" despite being provided with such application on three separate occasions in May 2007, February 2008 and June 2012. Consequently, details of the Veteran's educational and training history are not of record. Regarding his employment, throughout this appeal, the Veteran has reported working as a farmer. The Veteran's service treatment records show that he received a hardship discharge after his father passed away and he had to return home to run the family farm. As the Veteran has not reported any other employment, the evidence shows that he has been farming since discharge from service. In a May 2005 psychological evaluation, the Veteran reported farming with one of his sons. As the evaluator understood it, the amount of farming the Veteran did was in direct oppositional proportion to the amount of pain he had been experiencing, but he was extremely vague in telling the evaluator just when the pain became pervasive enough for him to actually stop farming. All the evaluator knew was that at the present time, the Veteran did "very limited farm work" and whatever he did must be done sitting down. A July 2005 VA treatment record indicates that the Veteran still farmed with the help of his son. In an April 2007 VA examination for his lumbar spine disability, the Veteran reported being retired due to physical problems. However, in June 2007, he reported being busy working on his farm. The Veteran reported having problems with back and knee pain, but stated "I just do what I can and try not to overdo it." A December 2007 VA treatment record reveals that the Veteran's son helped with the farm, "doing all the hard work." The Veteran reported that he might have to keep working another two years since it did not seem like disability was going to work out. He indicated that he kept trying to work despite his back and knee pain. None of the Veteran's treatment records detail how much work he did or the type of farming work that he performed. There is also no indication how much income he generated from farming. Additionally, none of the Veteran's treatment records indicate his education background, to include any special training he may have had. Regarding the effect of the Veteran's service-connected disabilities on his employability, the private May 2005 psychological evaluator doubted that the Veteran could function in gainful employment based first of all on his extremely poor motivational skills and secondly with respect to his refusal to encounter other people. VA examinations pertaining to his service-connected disabilities were obtained in September 2012. In this examination for his lumbar spine, the Veteran reported working as a farmer, self-employed in corn, cattle etc. He reported being unable to lift anything. He reported that if he lifted something, his back would flare. He reported difficulty sitting. The Veteran also reported that up until a few weeks ago he could not sleep for one hour due to back pain. He reported that he still farmed. The Veteran reported that he might drive a tractor for a few hours, then he needed to get out of the tractor. He reported running errands to the field. He reported special steps were made to get into the tractor. The Veteran reported that five minutes on his feet caused his back to hurt; he used a cane regularly and occasionally used a walker at home, especially if he had a spell where the right leg hurt. The Veteran reported that he was at risk of falling. The examiner observed that records noted right leg numbness and that he tripped. The examiner opined that the Veteran's back condition impacted his ability to work. The Veteran was unable to stand for greater than five to ten minutes. He walked with a cane, but reported a risk of falls. He reported some use of a walker with increased pain symptoms in his back. He reported ability to drive a car (as he drove to the evaluation) and tractor for two hours continuously. He reported special steps to get him into a tractor. It was the examiner's opinion that his service-connected disabilities were less likely than not precluding his ability to obtain or maintain substantially gainful employment. The rationale was that the Veteran farmed most all his life with help. He still drove the tractor on the farm and ran errands with the pick-up. He ambulated with a cane and climbed a special ladder to get into the tractor. He drove himself to the evaluation. Ambulation with cane was observed. There were no upper extremity service-connected disabilities. Thus, the evidence did not support individual employability at that time. The examiner noted that functional impairment included no lifting while standing as he was likely to fall. Standing with cane limitation of five to ten minutes due to back pain threshold. Limited to sitting continuously for two hours and approximately six hours total per day due to back pain. He was able to drive a car continuously for one to two hours; he still drove the tractor at the farm for approximately two hours continuously and several hours per day. He also drove the truck to run errands. The VA audiological examiner opined that the Veteran's hearing loss impacted his ordinary conditions of daily life, including ability to work. The Veteran reported that he was lost when in a crowd; he could not hear anything. The examiner opined that the Veteran could be expected to encounter significant difficulty involving speech and communicating effectively by oral means in situations involving moderate to intense levels of noise. He should be able to communicate on a telephone with his right ear; use of such device on the left ear would be difficult. However, he could work effectively in small groups in quiet areas or alone in a quiet area. His hearing loss alone should not render him incapable of maintaining gainful employment. The Americans with Disabilities Act mandated that employers provide assistance to employees to enable them to perform assigned tasks. The examiner also opined that the Veteran's tinnitus did not impact ordinary conditions of daily life, including ability to work. At the VA psychiatric examination, the Veteran reported that his son did the majority of the work and he helped his son with some responsibilities or duties on the farm. He might ride in the tractor for an hour or two. The examiner opined that the Veteran's psychiatric disorder in and of itself would not render him totally incapable of obtaining or maintain physical or sedentary employment. The examiner also opined that the Veteran's psychiatric disability in combination with all service related medical issues would less likely than not render the Veteran totally incapable of obtaining or maintaining sedentary gainful employment. Based on a review of the evidence, the Board concludes that an award of TDIU is warranted. As was discussed in the law and regulations section above, the appropriate TDIU standard is not whether a veteran is able to obtain any employment, or to maintain marginal employment. See Moore, 1 Vet. App. at 358. Rather, the standard is a subjective one and is whether a veteran can obtain and maintain substantially gainful employment. In affording the Veteran the benefit-of-the-doubt, the Board finds that the evidence supports a grant of a TDIU. In this case, although the Veteran has remained employed throughout this appeal, there is nothing in the record to indicate that such employment is more than marginal. As discussed above, the Veteran has continuously asserted that he farms with his son. The Veteran reported to the September 2012 VA examiner that he drove the tractor on the farm and ran errands with the pick-up. However, other work on the farm has not been shown. Indeed, the Veteran reported in December 2007 that his son did all of the hard work. The totality of the evidence suggests that if not for the Veteran's son to assist with the farming, the Veteran himself would not be able to do all of the work entailed with farming. Therefore, the Board concludes that the Veteran's employment is not substantial. The evidence also shows that it is the Veteran's service-connected disabilities that prevent him from engaging in more than marginal employment. In this case, the severity of the Veteran's service-connected lumbar spine disability is reflected in the 40 percent rating assigned for his spine, in addition to the separate 40 percent and 20 percent ratings for right lower extremity and left lower extremity radiculopathy, respectively. The Board observes that the ratings for the Veteran's lumbar spine and bilateral lower extremity radiculopathy alone combine to 70 percent disabling. Considering the severity of these disabilities, in addition to the functional limitations shown at the September 2012 VA examination, the Board concludes that the Veteran's service-connected disabilities preclude his substantially gainful employment. In reaching this conclusion, the Board acknowledges the VA examiner's opinion that the Veteran's service-connected disabilities were less likely than not precluding his ability to obtain or maintain substantially gainful employment. However, this opinion took into account that the Veteran farmed most all his life with help. As already discussed above, the evidence does not suggest that the Veteran is able to farm without help. The fact that the Veteran requires help to farm has already led the Board to conclude that such employment is marginal. There has been no evidence presented to suggest that the Veteran has the education or training experience necessary to work in office environments such that his lumbar spine and bilateral lower extremity disabilities would not be affected. In this case, there is no evidence to suggest that the Veteran is able to obtain and maintain other forms of employment besides farming. The evidence shows that the Veteran has been farming since he was discharged from service in 1966. Considering that the Veteran's sole employment background as a farmer is obviously labor intensive, the Board concludes that his service-connected lumbar spine and bilateral lower extremity disabilities preclude him for engaging in substantially gainful employment. The Board's finding is further supported by the September 2012 VA psychiatric examiner's opinion. As noted above, that examiner opined that the Veteran's psychiatric disability in combination with all service related medical issues would less likely than not render the Veteran totally incapable of obtaining or maintaining sedentary gainful employment (emphasis added). This opinion suggests that the Veteran is able to engage in sedentary employment; however, farming is not sedentary employment. Absent an employment background, education or training necessary to engage in sedentary employment, the Board reiterates its conclusion that the Veteran's service-connected disabilities preclude him for engaging in substantially gainful employment. Therefore, when taking into account the Veteran's employment background, in addition to the severity of his service-connected disabilities, the Board finds that the evidence supports the conclusion that the Veteran is incapable of performing the physical and mental acts required by employment. Accordingly, the Board finds that the evidence of record is sufficient to show that the Veteran's service-connected disabilities of spinal stenosis at L3-4 and L4-5 with degenerative facet disease at L4-5 and L5-S1; right lower extremity radiculopathy; depression and mood disorder; left lower extremity radiculopathy; tinnitus; and bilateral hearing loss, when taking into account his employment and educational history, preclude him from securing or following a substantially gainful occupation. As discussed above, the Veteran's occupation consists of marginal employment working as a farmer with assistance from his son. In this case, there is nothing in the record to indicate that the Veteran is able to work without any assistance from his son. Accordingly, in considering the severity of the Veteran's service-connected disabilities, his competent and credible lay statements, as well as his employment and education history, and in affording him the benefit-of-the-doubt, the Board finds that he is unemployable due to his service-connected disabilities. The evidence is in favor of the grant of a TDIU. Entitlement to a TDIU is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER New and material evidence sufficient to reopen the previously denied claim of service connection for hypertension having not been received, the application to reopen this issue is denied. New and material evidence sufficient to reopen the previously denied claim of service connection for a heart disorder having not been received, the application to reopen this issue is denied. Entitlement to a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs