Citation Nr: 1323938	
Decision Date: 07/26/13    Archive Date: 08/06/13

DOCKET NO.  09-49 015	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to total disability rating based upon individual unemployability (TDIU).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from December 1944 to September 1945.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the claim on appeal.  Jurisdiction of the Veteran's claims file is currently at the St. Louis, Missouri RO.  

The Board remanded the Veteran's claim in February 2013.  The requested action was taken and the case has since been returned to the Board for further appellate action.  See Stegall v. West, 11 Vet. App. 268 (1998). 

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).


FINDINGS OF FACT

1.  The Veteran is service-connected for residuals of a right eye injury with detached retina and left eye visual impairment with age-related macular degeneration and senile nuclear cataract, 90 percent, and residuals of a right eye injury with detached retina, 40 percent.  His combined evaluation is 90 percent.  

2.  Due to his service-connected disabilities, the Veteran was unable to obtain or retain substantially gainful employment.  


CONCLUSION OF LAW

The criteria for entitlement to TDIU are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran.  

Legal Criteria

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (2012).  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements.  If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  38 C.F.R. § 4.16(a) (2012).

To meet the requirement of "one 60 percent disability" or "one 40 percent disability," 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 one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war.  Id.  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).

Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history.  38 C.F.R. §4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012).

Factual Background and Analysis

The Veteran contends that he is unemployable due to his service-connected eye disabilities.  

He is currently in receipt of service connection for residuals of a right eye injury with detached retina and left eye visual impairment with age-related macular degeneration and senile nuclear cataract, 90 percent, and residuals of a right eye injury with detached retina, 40 percent.  His combined evaluation is 90 percent.  He is also in receipt of special monthly compensation for loss of use of one eye and benefits for automobile and adaptive equipment.  Therefore, the Veteran's service-connected disabilities meet the percentage rating standards for a TDIU.  38 C.F.R. § 4.16(a).  The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities rendered him unemployable

In his TDIU application, the Veteran indicated that he last worked in 1983.  Prior to that, he was self employed in a small business.  He stated that he had 2 years of college education, but has not had any subsequent training or schooling.  The Veteran contends that his service-connected vision problems prevent him from gaining or maintaining employment as he cannot see to perform any type of work.  

In a February 2010 report of contact, the Veteran had reported that he was legally blind, and needs the aid and assistance of another to perform his activities of daily living.  He further indicated that he can no longer drive.  

In April 2013, the Veteran was afforded a VA examination to determine whether his service-connected eye disabilities rendered him unemployable.  The examiner diagnosed the Veteran as having total retinal detachment of the right eye and primary open angle glaucoma of the left eye.  He described the Veteran's functional impact as including being legally blind and it would make it difficult, if not impossible, to perform visually related work tasks.  

The examiner further noted that "[i]gnoring the fact that the Veteran is 93 years old and has not actively sought work for 30+ years, his eye conditions alone would not limit his employability to occupations that do not require good binocular vision as an essential requirement for employment.  Though a legally blind person's employment opportunities are more limited, there are extensive examples of the legally blind and the totally blind maintaining gainfull [sic] employment and leading productive lives."  

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  In the present case, the Board concludes that entitlement to TDIU is warranted.  

Based upon review of the evidence as a whole, the Board finds that the Veteran is unable to secure or maintain any substantially gainful employment due to his service-connected vision disabilities.  Indeed the April 2013 VA examiner indicated that his service-connected eye disability would make it difficult, if not impossible, to perform visually related work tasks.  Although the examiner indicated that many blind people maintain gainful employment, he opined that the Veteran's eye conditions alone would prevent him from obtaining an occupation that requires good binocular vision.  The Board notes, however, that the realistic chances of him obtaining and retaining employment must also be considered in light of his vision capabilities.  Although there are perhaps some occupations that would not require binocular vision, the Board finds that the evidence of record does not show that the Veteran has any practical or job skills which could be transferred to any form of employment that does not require vision.  

Ultimately, the Board finds that preponderance of the evidence establishes that this Veteran, given his occupational history and educational level, is unable to obtain or retain substantially gainful employment due to his physically limiting service-connected disabilities.



ORDER

TDIU is granted


____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs