Citation Nr: 1322316 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 09-00 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1961, from August 1961 to August 1970, and from November 1970 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The record reflects that, at the time of the filing of his claim, the Veteran was represented by The American Legion. (A VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, dated in October 2006 appears in the claims file.) As noted in an April 2013 letter from the American Legion, the record suggests that the Veteran may have changed his representation to Disabled American Veterans. There is, however, no new VA Form 21-22 appointing Disabled American Veterans as his new representative. In May 2013, the Veteran was sent a letter notifying him of this situation and offering him the opportunity to represent himself, fill out the appropriate form to designate a Veterans Service Organization to represent him, or fill out a VA Form 21-22a, Appointment of Individual as Claimant's Representative, if he wished to designate an attorney or an accredited agent to represent him. He was notified that, if he did not respond to this letter within 30 days, it would be assumed that he wished to represent himself. Because the Veteran did not respond to this letter, the Board will assume that the Veteran is representing himself in this matter. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. This evidence has been considered in the following decision. The record reflects that, since the most recent supplemental statement of the case, the Veteran has submitted additional evidence to the Board that has not been accompanied by a waiver of initial review by the agency of original jurisdiction. See 38 C.F.R. § 20.1304. Because the outcome of the Veteran's claim is fully favorable, the Board finds no prejudice to the Veteran in issuing a decision at this time. FINDING OF FACT The Veteran's service-connected disabilities have been shown to prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). In light of the favorable decision as it relates to the issue of entitlement to a TDIU, any error by VA in complying with the requirements of VCAA is moot. II. TDIU A total disability rating based upon individual unemployability due to service-connected disabilities is assigned when service-connected disabilities result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15 (2012). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). A claim for a total compensation 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 to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extra-schedular consideration. In the case at hand, the Veteran is service connected for: (1) posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling effective July 6, 2010; (2) coronary artery disease status post coronary artery bypass graft, evaluated as 10 percent disabling effective October 30, 2006, and as 60 percent disabling effective December 15, 2009; (3) diabetes mellitus, type II, evaluated as 20 percent disabling effective October 30, 2006; (4) peripheral neuropathy of the left upper extremity, evaluated as 20 percent disabling effective July 18, 2007; (5) peripheral neuropathy of the right upper extremity, evaluated as 20 percent disabling effective July 18, 2007; (6) hiatal hernia with gastroesophageal reflux disease (GERD) and duodenal ulcer, evaluated as 10 percent disabling effective January 1, 1980; (7) postoperative injury to the left ring finger, evaluated as 10 percent disabling from February 3, 1998; (8) peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling effective July 18, 2007; (9) peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling effective July 18, 2007; (10) tinnitus, evaluated as 10 percent disabling effective July 11, 2011; (11) bilateral high frequency hearing loss, evaluated as 0 percent disabling effective January 1, 1980; (12) postoperative asymptomatic right inguinal hernia, with scar, evaluated as 0 percent disabling effective January 1, 1980; and (13) midsternotomy scar, evaluated as 0 percent disabling effective October 30, 2006. The claim in the case at hand arises from a February 2008 claim. Combining the above ratings effective from February 2008 under 38 C.F.R. §§ 4.25 and 4.26 results in a 70 percent rating effective July 18, 2007; a 90 percent rating effective December 15, 2009; and a 100 percent rating effective July 6, 2010. These ratings satisfy the schedular TDIU criteria of 38 C.F.R. § 4.16(a). The Board must now consider whether the Veteran has, in fact, been unemployable due to his service-connected disabilities. The Veteran's February 2008 TDIU application indicates that he was born in November 1940 and that he last worked full time as a clerk with the United States Post Office from 1980 to 2000. He reported that he is prevented from securing or following any substantially gainful occupation due to his service-connected diabetes and peripheral neuropathy of the upper and lower extremities. He reported that he did not leave his last job because of his disability, indicating elsewhere that he left due to a back disability, and that he receives disability retirements. He does not receive workers compensation benefits. He has not tried to obtain employment since he became too disabled to work. He reported that he has a high school education, and he had no other education or training before he became too disabled to work. The Veteran underwent a diabetes mellitus examination in June 2008. The examiner noted that, according to a September 2007 VA examination report, the Veteran gave a history of having bilateral numbness of both feet over the past two years. It was noted to involve both the plantar and dorsal aspects of both feet extending to knee level. The Veteran was noted to have painful paresthesias of both feet. It was noted that the Veteran has constant numbness of both hands, involving both the dorsal and palmar aspects of both hands and extending to the level just below the elbows. He complained of burning pain and pins and needles of both feet. The pain in the feet and hands was constant at a severity of 8 out of 10 and sometimes reached 9/10 daily. He reported decreased sensation to touch in the hands and feet. He complained of weakness in the hands and possible weakness of the feet with tripping. He reported no flare-ups. He takes 600 milligrams of Neurontin three times a day, which helps a little. He takes a pain medication one or two times a week at night, which helps. He wears special diabetic shoes, uses a cane, and soaks his feet. The Veteran was in the Army over 20 years as a tank commander/platoon sergeant and infantry. He got out of the Army and worked as a police officer for a few years. He worked at the post office from 1980 until 2000. He reported that he was medically retired for a back condition. There was no effect on usual occupation, except he avoids standing for more than ten minutes. He avoids walking more than 50 yards with a cane. He cannot hold things over one or two pounds. He has sleep disturbance due to pain and flashbacks. He is right-hand dominant for writing, but he can use his left hand, too. On physical examination, the examiner noted that the peripheral nerves of the distal arms and distal legs, bilaterally, are affected. He was absent sensation to light touch on all fingers to half way up to the forearm, bilaterally. He was absent sensation to light touch on all of the toes to just below the knees, bilaterally. There was no increased sensitivity to touch on the arms, hands, feet, or knees. Muscle strength was full on both sides. There was no muscle wasting or atrophy of the arms or legs from diabetes. He has a smaller right forearm and right hand related to an injury after the service. He has some bony deformity of the left upper arm from a fracture. There was slowed coordination with rapid alternating movement of the hands and rapidly touching fingers to thumb with the right and left hands, and with heel to shin of the right and left feet. No joint was affected by the peripheral nerve condition. With respect to peripheral neuropathy, the examiner opined that the Veteran would still be able to work a sedentary position with the service-connected medical conditions. The examiner noted that the Veteran would need to find a job with the limitations that were described above. The examiner also described a September 2007 VA examination report noting that there are no restricted activities related to diabetes. There was no evidence of cardiovascular, renal, skin, bladder, or bowel complications, and daily activities were not affected. The examiner noted that there is no effect on diabetes control on the Veteran's occupation and his activities of daily living, except that he has to take breaks to get something to drink and go to the bathroom. There has been no effect from hypoglycemic reactions of weakness and tired feeling in the past 12 months. A January 2007 VA examination report notes that the Veteran is not restricted in his ability to perform strenuous activities. Following examination, the examiner opined that the Veteran would still be able to work a sedentary position with diabetes mellitus, type II. The examiner opined that he would be hindered in that he would need to find a job that would allow him to take breaks to get something to drink and go to the bathroom related to the diabetes. In addition to the above impairments, the September 2007 VA examination report notes that the Veteran has pain in both hands when attempting to pick up objects. The Veteran's last two decades of work were as a clerk at the post office. Essentially, the medical evidence indicates that the Veteran is unable to engage in active employment, but he could engage in sedentary employment that does not require him to stand for more than ten minutes, walk more than 50 yards, or hold things over one to two pounds. (Such employment would also be required to allow the Veteran to take breaks to get something to drink and go to the bathroom.) Given the Veteran's educational and occupational history and the constraints noted above, in particular the Veteran's inability to lift more than one or two pounds and the absence of light touch sensation in his fingers to half way up his forearms, the weight of the competent, probative evidence indicates that the Veteran as likely as not has been prevented from obtaining and retaining substantially gainful employment as a result of his service-connected disabilities. In summary, the Veteran has met the criteria for a TDIU, and the Board finds the Veteran's service connected disabilities, considered together, render him unemployable for sedentary and manual positions. Accordingly, entitlement to a TDIU is granted. ORDER Entitlement to a TDIU is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs