Citation Nr: 1324072	
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO.  10-03 700	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Petersburg, Florida


THE ISSUE

Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU).



REPRESENTATION

Veteran represented by:	Christopher Loiacono, Agent



WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

M. Donohue, Counsel


INTRODUCTION

The Veteran had active service from December 1961 to November 1964 and from June 1967 to July 1984. 

This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the RO. 

In April 2011, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by a Veterans Law Judge (VLJ).  A transcript of this hearing has been associated with the Veteran's VA claims file.

In January 2012, the Board remanded the Veteran's claim for additional development of the record.  

The Veteran was afforded an additional hearing with the undersigned VLJ in February 2013.  A transcript of this hearing has been associated with the Veteran's VA claims file. 

Based on his testimony before two separate VLJs, the Veteran is entitled to a panel decision.  See 38 U.S.C.A. § 7102(a); 38 C.F.R. § 19.3 (Generally providing that a proceeding before the Board may be assigned either to an individual VLJ 'or to a panel of not less than three members of the Board.') However, as the appeal is being granted in full, the Veteran is not prejudiced by a single judge decision.

The Veteran, through his representative, has raised the issue of service connection for radiculopathy of the left lower extremity as secondary to the service-connected lumbosacral strain. See the February 2013 hearing transcript, page 41.  

The issues of an increased rating for the service-connected heart disability, right great toe disability, lumbosacral strain, tinnitus and hearing loss have also been raised.  See a February 2013 statement. 

These issues have not yet been addressed by the RO and are referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet.App. 398 (1995) (the Board does not have jurisdiction of issues not yet adjudicated by the RO).


FINDING OF FACT

The service-connected disabilities are shown as likely as not to preclude the Veteran from securing and following substantially gainful employment consistent with his educational and occupational background.  


CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, the criteria for the assignment of a TDIU rating have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.321, 4.16, 4.19 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

After the evidence has been assembled, the Board is responsible for evaluating the entire record.  38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).  

Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet.App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54.

Furthermore, the Board notes that it has reviewed all of the evidence in the claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  

Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000).  


II. Duties to notify and assist

The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012).  

VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

VCAA also requires VA notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion of the evidence is to be provided by the claimant and which part VA will attempt to obtain on behalf of the claimant. 

The Board need not, however, discuss the sufficiency of the notification letter sent to the Veteran during the current appeal - or VA's development of his claim - in light of the fact that a TDIU rating is being granted.  

Thus, any potential deficiency on the part of VA in complying with the provisions of VCAA has essentially been rendered moot by the Board's complete grant of the benefit sought on appeal.


II. Law and Regulations 

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).


III.  Analysis 

The Veteran has been granted service connection for supraventricular tachycardia and mitral valve regurgitation (rated as 60 percent disabling); traumatic arthritis of the right great toe with hallux rigidus, status-post failed arthroplasty and bunionectomy (rated as 30 percent disabling); lumbosacral strain (rated as 10 percent disabling); tinnitus (rating 10 percent disabling); and bilateral hearing loss (rated as no percent disabling). The combined evaluation for his service-connected disabilities is 80 percent. Hence, the Veteran has satisfied the schedular criteria for TDIU rating.

In his January 2009 VA-Form 21-8940 (Application for Increased Compensation Based on Unemployability), the Veteran reported that he had completed one year of college. 

The Veteran reported that he last worked for an amusement park until he became too disabled to work in February 2007.  See the January 2009 VA Form 21-8940.  A July 2009 statement from his former employer indicates that the Veteran was involuntary terminated because there was "no position available." 

A VA treatment record from September 2007 reported that the Veteran continued to experience heart palpations which lasted for 5 minutes and cause dizziness and lightheadedness.  It was noted that he would occasionally have to stop driving until his symptoms subsided. 

The Veteran was afforded a VA examination in February 2012.  After a clinical examination and a review of the claims file, the VA examiner stated that the  service-connected heart disability would not prevent him from engaging in sedentary employment because his heart symptoms were infrequent and did not last long.  

The examiner stated that the service-connected back disability caused the Veteran discomfort, but did not prevent him from engaging in sedentary work.  With respect to the Veteran's right great toe disability, the examiner stated that this disability did not result in problems "with sitting or standing" and, therefore, would not impair him from engaging in sedentary employment.  

Finally, the VA examiner noted that the Veteran showed no problems engaging in normal conversation and his service-connected hearing loss and tinnitus would therefore not prevent him from engaging in employment. 

Upon review, the February 2012 VA examiner did not take into consideration all of the Veteran's service-connected disabilities, but instead provided an opinion with regards to each individual service-connected disability. Accordingly, the examiner's opinion is entitled to limited probative value. 

In support of his claim, the Veteran submitted a Lumbar Spine Impairment Questionnaire that was completed by his private physician.  

In this report, I.H., M.D., stated that the Veteran's spine disability prevented him from sitting for more than 3 hours a day or standing/walking for more than 2 hours a day.  Dr. I.H. also reported that it was "necessary or medically recommended" that the Veteran not sit continuously in a work setting or stand/walk continuously in a work setting.  He ultimately opined that the Veteran was not capable of performing gainful employment due to the symptoms and limitations stemming from his spinal impairment. 

During the April 2011 hearing, the Veteran testified that he had searched for employment without success.  Specifically, the Veteran reported having told that, based on the severity of his service-connected disabilities, there would be no point in applying for employment.  See the hearing transcript, page 10.  

The Veteran has also testified that his service-connected back disability prevents him from lifting objects and his service-connected foot disability prevents him from walking.  Id.  

The Veteran argued that he would be unable to maintain sedentary employment because the stress that is experienced during routine office work would trigger his service-connected heart disability and cause extreme fatigue. Id at 16; see also the February 2013 hearing transcript, page 6.  

During the February 2013 hearing, the undersigned VLJ found the Veteran credible.  See the February 2013 hearing transcript, page 42.

Based on the foregoing, there appears to be presented a reasonable doubt as to whether the Veteran is prevented from securing and following any form of substantially gainful employment due to his service-connected disabilities given his educational and work experience.  

To the extent that there is a reasonable doubt, it will be resolved in the Veteran's favor. Therefore, on this record, the Board finds that a TDIU rating is warranted. 



ORDER

Entitlement to a TDIU rating is granted, subject to the regulations governing the award of VA monetary benefits.


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals


Department of Veterans Affairs