Citation Nr: 1324653	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  13-15 872	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel






INTRODUCTION

The Veteran had active military service from August 1943 to March 1946.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

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.  Service connection is currently in effect for residuals of cold injury, frostbite with residuals of degenerative joint disease and dysesthesias of the right and left lower extremities, each evaluated as 30 percent disabling, effective from March 24, 2011; residuals of cold injury of the right and left hands, each evaluated as 20 percent disabling; and residuals of cold injury to the right and left ears, and nose, all assigned 10 percent disability evaluations and all effective from September 28, 2011.  The Veteran's combined disability evaluation is 60 percent from March 24, 2011 and 80 percent from September 28, 2011.

2.  Resolving all doubt in the Veteran's favor, the evidence of record reflects that he is unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities. 


CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for assignment of a TDIU are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.3.340, 4.3, 4.7, 4.16 (2012). 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

For the reasons detailed below, the Board finds that the Veteran is entitled to assignment of a TDIU; i.e., the benefit sought on appeal is granted.  Therefore, no further discussion of the VCAA is warranted in this case as any deficiency has been rendered moot.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 

It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  A total disability may or may not be permanent.  Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.  38 C.F.R. § 3.340(a). 

A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 4.16(a).  

Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as cardio-vascular-renal disabilities, will be considered as one disability for TDIU purposes.  38 C.F.R. § 4.16(a).  

Under 38 C.F.R. § 4.26 (2012), when a partial disability results from a disease or injury of both arms or legs, the ratings for the disabilities of the right and left sides will be combined as usual under 38 C.F.R. § 4.25 (2012), and 10 percent of this value will be added (i.e. not combined) before proceeding with further combinations, or converting to degree of disability.  This is known as the bilateral factor.

Here, service connection is currently in effect for residuals of cold injury, frostbite with residuals of degenerative joint disease and dysesthesias of the right and left lower extremities, each evaluated as 30 percent disabling from March 24, 2011; residuals of cold injury of the right and left hands, each evaluated as 20 percent disabling, effective from September 28, 2011; and residuals of cold injury to the right and left ears, and nose, each assigned 10 percent disability evaluations, effective from September 28, 2011.  

The Board finds that the Veteran's service-connected cold injury residuals have met the schedular criteria throughout the pendency of this appeal.  Specifically, the Veteran's disabilities of the bilateral upper and lower extremities, hands, ears, and nose are all cardiovascular disabilities.  As such, they are considered one disability for TDIU purposes.  See 38 C.F.R. § 4.16(a).  Using the combined ratings table in section 4.25, the Veteran's disabilities of the bilateral lower extremities have a combined rating of 51 percent.  Applying the bilateral factor, 5.1 percent is added to this value, resulting in a combined rating of 56.1 percent.  See 38 C.F.R. § 4.26.  This results in a combined rating of 60 percent, rounding to the nearest 10 percent, effective from March 24, 2011.  See 38 C.F.R. § 4.25.  Thus, the schedular criteria for consideration of entitlement to TDIU were met as of that date.  

The Veteran's disabilities of the bilateral upper extremities have a combined rating of 36 percent.  Applying the bilateral factor, 3.6 percent is added to this value, resulting in a combined rating of 39.6 percent.  The Veteran's disabilities of the ears have a combined rating of 19.  Applying the bilateral factor, 1.9 percent is added to this value, resulting in a combined rating of 20.9.  When these ratings are combined with the 10 percent rating assigned the Veteran's nose disability, it results in a combined rating of 80 percent, rounding to the nearest 10 percent, as of September 28, 2011.  See 38 C.F.R. §§ 4.16(a), 4.25.

The Board also notes that the Veteran's disabilities of the bilateral lower extremities, hands, ears, and nose, share a common etiology, as they stem directly or indirectly from injuries he sustained while exposed to cold weather in the European theater during World War II.  Therefore, because all of these disabilities stem directly or indirectly from the Veteran's in-service cold weather exposure, they are considered one disability under 38 C.F.R. § 4.16(a) for the purposes of considering entitlement to a TDIU.  

Using the bilateral factor, the Veteran's disabilities result in a combined disability rating of 60 percent under section 4.25 as of March 24, 2011, the effective date of the 30 percent ratings assigned the Veteran's bilateral lower extremity disabilities.  Thus, the schedular criteria for the disabilities resulting from the cold weather injuries have been met since March 24, 2011.  As such, the schedular criteria were met throughout the pendency of this appeal.  See 38 C.F.R. §§ 3.340, 4.16(a).

Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice- connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). 

The Board finds that the evidence is at least in equipoise as to whether the Veteran is unable to engage in substantially gainful employment as a result of his service-connected disabilities.  According to his formal claim for a TDIU (VA Form 21-8940) received in October 2011, the Veteran said that his service-connected disabilities affected his ability to work full time in 1981 that was the date he last worked full time and he became too disabled to work.  He reported that he last worked in 1981 as a laborer, had a 7th grade education, and had no other special training.  Records obtained from the Social Security Administration (SSA) indicate that he received age-related SSA benefits.

In August 2011, a VA examiner reported that the Veteran, who was 86 years old, used a wheelchair and cane and was not ambulating.  The Veteran ambulated with assistance from his wife.

According to a May 2012 VA cold injury residuals examination report, the Veteran had cold injury (frostbite) residuals to his feet, hands, ears, and nose.  The examiner noted that the Veteran was a frail 86 year old male with multiple (non-service-connected) medical problems, including diabetes, hypertension, Alzheimer's, and general wasting consistent with age that constituted the need for assistive devices.  The VA examiner opined that the degree of arthritis of the Veteran's hands and feet would not be limiting, per se.  The examiner stated that the Veteran's cold sensitivity of the hands, feet, ears, and nose, would preclude prolonged cold exposure, such as working outdoors in winter.

But, in a December 2012 signed statement, the VA Chief of Primary Care at a VA medical facility at which the Veteran was treated opined that the Veteran was unemployable due to residuals of his cold injuries that were service-connected disabilities.  The VA physician reported that the Veteran had difficulty with gripping, driving, standing, and walking for long periods of time due to his cold injuries. 

The current schedular ratings of 30 percent for the Veteran's cold injury, frostbite residuals of degenerative joint disease and dysesthesias of the right and left lower extremities are reflective of arthralgia or other pain,  numbness or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities.  See 38 C.F.R. § 4.114, Diagnostic Code 7122 (2012).  As such, it further supports a finding of severe, or at least very significant, occupational impairment due to degenerative joint disease and dysesthesias of the lower extremities.

The current schedular ratings of 20 percent for the Veteran's cold injury residuals of the left and right hands are reflective of arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities.  Id.  This further supports a finding of moderate to severe occupational impairment due to cold injury residuals of the left and right hands.

The current schedular ratings of 10 percent for cold injury residuals of the Veteran's left and right ears and his nose are reflective of arthalgia or other pain, numbness, or cold sensitivity.  Id.  This further supports a finding of at least some occupational impairment due to cold injury residuals of the ears and nose.

Here, the probative evidence of record demonstrates that the Veteran is significantly disabled by service-connected residuals of cold injury to his bilateral upper and lower extremities, ears, and nose.  Moreover, medical professionals have considered the Veteran's ability to work.  In May 2012, a VA examiner concluded that the degree of arthritis of the Veteran's hands and feet would not be limiting, per se.  However, a December 2012 opinion from a VA physician found that the Veteran was not employable due to his service-connected disabilities and noted his difficulty with gripping, driving, standing, and walking for long periods due to his cold injuries.  Thus, the Board concludes that the evidence is deemed to be at least in equipoise on the essential question at issue, whether the Veteran is precluded from employment due to his service-connected disabilities.

When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  In Gilbert, supra, the United States Court of Appeals for Veterans Claims (court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  In Gilbert, the court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. 

Resolving all doubt in favor of the Veteran, the Board finds that he is entitled to a grant of a TDIU. As such, the benefit sought on appeal is allowed. 


ORDER

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

____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals