Citation Nr: 1324048 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 13-01 745 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to a total disability evaluation based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION 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). The Veteran served on active duty in the United States Army from August 1943 to January 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2012 rating decision of the RO. The Board has reviewed the Veteran's Virtual VA file and has considered the records contained therein. FINDING OF FACT The service-connected disabilities are shown as likely as not to preclude the Veteran from securing and following a substantially gainful occupation consistent with his educational background and his long-time work experience involving manual and physical labor. CONCLUSION OF LAW The criteria for the assignment of a total rating based on individual unemployability by reason of service-connected disability are met. 38 U.S.C.A. §§ 1151, 5107, 7103 (West Supp. 2002); 38 C.F.R. §§ 3.102, 4.16 (2002) REASONS AND BASES FOR THE FINDING AND CONCLUSION Under applicable law, VA has a 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). To the extent that action taken hereinbelow is fully favorable to the Veteran, further discussion of VCAA is not required. The Veteran asserts that he is prevented from working at time of employment by his service-connected disabilities. In connection with a VA examination of May 1998, the Veteran described having curtailed activity in cold weather because his feet became more tender and kept him from walking for any length of time. In a rating decision of July 1998, the RO assigned separate ratings of 30 percent for the service-connected residuals of frozen feet for each lower extremity, effective on January 12, 1998. The Veteran also has been granted service connection for the residuals of a gunshot wound of the gluteal region, rated as 20 percent disabling; for the residual right thigh scar, rated as 10 percent disabling; and for malaria, rated at a noncompensable level. The combined rating is 70 percent with consideration of the bilateral factor. In his application, the Veteran reported last working in January 1999 and being too disabled to work in February 1999. He noted that he had worked as a letter carrier for the Post Office and had completed two years of college. The Veteran was afforded a VA examination in December 2011 when the examiner opined that the service-connected cold injury and muscle injuries impacted his ability to work due to a decreased ability to stand or walk for prolonged periods of time. The Veteran was afforded another VA examination in January 2012. At the time, the examiner opined that the service-connected disabilities would prevent physical employment, but should not effect sedentary employment. He noted that the service-connected disabilities only limited prolonged standing or walking. The Veteran was noted to walk with the use of cane. The Veteran submitted an August 2012 VA outpatient treatment record that noted reports of worsening pain in his back and increased numbness in his feet. The treating physician stated at the time that it was clear that the Veteran's symptoms were worsening and that he was unemployable. To the extent that the Veteran is service connected for disabilities that are shown to involve his lower extremities, the evidence is clear in establishing that he would be prevented from working at any type manual or physical employment that would involve prolonged walking or standing. This would include working at his former occupation as a letter carrier. Moreover, in addition to the Veteran's occupational history, the lack of additional job experience or training would not support a finding that he would be able to obtain and perform some form of sedentary employment even though he has reported having two years of college education. His service-connected disabilities also are shown to keep him from leaving his home during cold weather because of increased symptoms involving his lower legs and feet. In considering the entire record, the Board finds that the evidence to be in relative equipoise in showing the Veteran as likely as not is precluded from obtaining and retaining substantially gainful employment that would be consistent with occupational and educational background. In resolving all reasonable doubt in the Veteran's favor, a total rating based on individual unemployability by reason of service-connected disability is warranted. ORDER Entitlement to a total rating based on individual unemployability by reason of a service-connected disability is granted. _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs