Citation Nr: 1323856 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 12-33 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from February 1949 to June 1952. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran was scheduled for a hearing before the Board in June 2013; however in a May 2013 letter submitted to the Board the Veteran indicated he would not attend the scheduled hearing. VA regulations provide that if the Veteran fails to appear for a scheduled hearing then the case will proceed as though the request for hearing had been withdrawn. 38 C.F.R. § 20.704(d). As such, appellate review may proceed. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. 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). FINDING OF FACT The Veteran's service-connected disabilities, including cold injury to both lower extremities, post-traumatic stress disorder, bilateral hearing loss, and tinnitus, render him unable to follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a), 4.25 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In February 2010 the Veteran filed a claim seeking TDIU. VA regulations provide a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. In this case, the Veteran is currently rated with a 30 percent impairment based on cold injury for each of his lower extremities, a 30 percent impairment for post-traumatic stress disorder (PTSD), 10 percent impairment for bilateral hearing loss, and a 10 percent impairment for tinnitus. Therefore the Veteran has a combined rating of 80 percent, in excess of the required 70 percent total rating. When determining if the schedular criteria of a single disability in excess of 40 percent for TDIU has been met the bilateral factor must be applied. See 38 C.F.R. § 4.26. The bilateral factor provides that when a partial disability results from injury of both legs the ratings for the disabilities of the right and left sides will be combined as usual, and an additional 10 percent of this combined value will be added, not combined. Id. Applied in this case, the Veteran has a combined rating for 51 percent for his 30 percent rating for cold injury to each lower extremity. Additional 10 percent of this rating added to the total results in combined rating of 56.1 percent. 38 C.F.R. § 4.25 provides the combined rating value shall be converted to the nearest number divisible by 10, yielding a combined rating of 60 percent for cold injury to both lower extremities. Therefore the Veteran has a single disability rated in excess of 40 percent and a combined disability rating in excess of 70 percent, meeting the threshold criteria for TDIU under 38 C.F.R. § 4.16(a). As such, the Veteran may be eligible for total disability rating if the VA determines that he is unable to secure or follow substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). The evidence reflects that after his military service the Veteran worked as a welder until 1992, when his employer went out of business. The Veteran has not worked since 1992. The Veteran's DD 214 and application of TDIU indicates that the Veteran obtained education through the eighth grade and has not received any high school education. Throughout the period on appeal the Veteran has consistently stated that his pain from his bilateral lower extremity condition, as well as his PTSD, have prevented him from working. In an April 2010 written statement the Veteran asserted his PTSD and bilateral foot condition has prevented him from working since 2009. The Veteran's lay assertions are supported by the medical evidence of record. In February 2010 the Veteran's private physician opined the Veteran had not been able to work since 1992 due to injuries he sustained in the military service. Additionally the VA examiner in July 2012 opined the Veteran's cold injury to his legs bilaterally impacted his ability to work by making ambulating difficult even with use of a cane. Similarly that same month the psychiatric VA examiner opined the Veteran's PTSD resulted in occupational impairment with occasional decrease in work efficiency. Therefore the Board finds the medical evidence provides support for the Veteran's claim. The medical evidence of record and the Veteran's statements are evidence that the Veteran is unable to follow a substantially gainful occupation due to his service-connected conditions. As discussed above, the Veteran is currently rated with an 80 percent combined impairment for his service-connected cold injury to both lower extremities, PTSD, bilateral hearing loss, and tinnitus. In this regard, the Board notes that entitlement to TDIU does not require total occupational impairment but rather requires that the individual is unable to secure and follow a substantially gainful occupation. In view of the Veteran's work history as a welder and limited education, sedentary employment appears not to be a vocational option for the Veteran. The severity of the Veteran's service-connected conditions (as described above) are therefore such that he is unable to secure and follow a substantially gainful occupation for which he has experience and training. Continued employment in physical labor considering the severity of his leg disabilities would not appear to be attainable. Based on the record and for the reasons just discussed, the Board finds that the preponderance of evidence shows that the Veteran's service-connected conditions, including bilateral cold injury to his lower extremities, PTSD, bilateral hearing loss, and tinnitus, render him unable to follow a substantially gainful occupation. As he cannot secure and follow a substantially gainful occupation due to service-connected disabilities the remaining criterion for TDIU are met and his appeal must be granted. Duties to Notify and Assist The Veteran's claim for TDIU is granted. This is a full grant of all benefits sought on appeal. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER TDIU is granted subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs