Citation Nr: 1325637	
Decision Date: 08/13/13    Archive Date: 08/16/13

DOCKET NO.  09-23 022	)	DATE
	)
	)

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


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

B. D. C., Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from February 1951 to February 1954, and from May 1968 to May 1969 and in the United States Navy from January 1974 to November 1986.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which declined to increase the Veteran's disability rating above 20 percent for arthritis and declined to increase the Veteran's disability rating above 10 percent for eczema.

The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge in January 2011.  A transcript of the hearing is associated with the claims file.

In March 2011, the Board remanded the underlying issues for further development.  On remand, the RO changed the Veteran's disability rating for arthritis.  The Veteran's arthritis had previously been rated as 20 percent disabling under the diagnostic code applicable to degenerative arthritis. 

As of November 19, 2009, the RO discontinued that rating and assigned the Veteran separate disability ratings for arthritis of the cervical spine, lumbar spine, hands, and knees.  The Veteran's cervical spine was rated as 10 percent disabling from November 19, 2009, and 20 percent disabling from May 11, 2011 under the diagnostic code applicable to degenerative arthritis of the spine.  The Veteran's lumbar spine condition was rated as 10 percent disabling from November 19, 2009 under the same diagnostic code.  The Veteran's bilateral hand condition was rated as 10 percent disabling from November 19, 2009 under the diagnostic code applicable to degenerative arthritis.  The Veteran's left and right knees were each rated as 10 percent disabling from May 11, 2011 under the diagnostic code applicable to limitation of flexion of the leg.

While on remand, the rating for the Veteran's skin condition was increased from 10 percent to 60 percent effective March 15, 2007. 

In an August 2012 decision, the Board granted increased ratings for lumbar spine disability, cervical spine disability from June 17, 2009, right hand disability, and left hand disability.  This decision also denied increased ratings for arthritis of multiple joints prior to June 16, 2009, cervical spine disability as of May 1, 2011, right knee disability as of May 1, 2011, left knee disability as of May 1, 2011, and skin condition.  Additionally, the Board found that the issue of TDIU had been raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  This issue was remanded because it required further development prior to adjudication.  

This appeal was processed in part by using the Virtual VA paperless claims processing system.  The documents contained in this system, including the hearing transcript, were reviewed in conjunction with this appeal.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

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 meet the percentage requirements for the award of a schedular TDIU and his service-connected disabilities prevent him from securing and following a substantially gainful occupation.


CONCLUSION OF LAW

The criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board awards TDIU; which represents a complete grant of the issue on appeal.  As such, no further notice or assistance is required to assist the Veteran in substantiating this claim.

TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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 or more.  38 C.F.R. § 4.16(a).

The Veteran has been service connected for psoriasis, evaluated as 60 percent disabling, for the entirety of the appeals period.  Therefore he meets the threshold percentage requirements for TDIU as set forth under 38 C.F.R. § 4.16(a).  Additionally, the Veteran is service connected for arthritis of the cervical spine, lumbar spine, bilateral hands, and bilateral knees, and bilateral hearing loss.

The remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a).  In determining whether the Veteran is unemployable, consideration may be given to his education, training, and special work experience, but not to his age or to impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 1.419; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In adjudicating a claim for VA benefit, 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.  See generally 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The record shows that the Veteran is currently unemployed and has been retired for the entirety of the appeals period.  See e.g., June 2009 VA joint examination.  Recently, his disabilities have been found to prevent physical labor.  See February 2013 VA general medical examination.  At his May 2011 VA joints examination, the Veteran reported that he would be unable to return to his previous work due to his knees.  He further stated that he could not do moderate chores such as yard work and home maintenance, climb stairs or ladders, or stand on precarious places like scaffolding.

Taking the individual body parts in turn, the February 2013 VA examiner found that the Veteran's skin disability (psoriasis) would also interfere with jobs in which skin integrity of the hands was important, such as food handling and dishwashing.  The Veteran's low back disability was found to preclude physically strenuous, work such as heavy lifting and bending, and prolonged sitting (over one hour) would be difficult, but noted that this could be accommodated with typical periodic breaks.  The Veteran's bilateral knee disability precludes strenuous physical labor with running or frequent squatting.  The Veteran's cervical spine disability requires avoidance of physically strenuous jobs that require significant cervical stress like rapid deceleration in a plane or vehicle.  The Veteran's psoriatic arthritis also precluded strenuous physical labor with heavy lifting and frequent bending of back and knees.  His right hand limitation of motion precluded a tight full grip.  

The December 2012 audiologist found that the Veteran's hearing loss affected his ability to work, noting that he has worn hearing aids for eight years.  Specifically, the Veteran stated, "I don't have trouble hearing, I have trouble deciphering."  The February 2013 audiologist noted the Veteran's complaints that he could hardly hear anything without his hearing aids; however, the Veteran did communicate well at normal conversation levels when using his hearing aids.  This examiner opined that hearing loss did not render the average person unable to perform all types of sedentary and physical employment and, in this examiner's opinion, the Veteran's hearing loss did not prevent him from securing and following a gainful occupation.

In this way, the medical evidence of record shows that the Veteran is unable to perform physical labor.  The evidence is at least in equipoise as to whether his disabilities impair his ability to perform sedentary work due to service connected disability.  The general medical examiner notes that the Veteran's ability to perform sedentary work is only limited by his need to take regularly scheduled breaks.  The extent to which the Veteran's hearing loss further impairs his ability to perform sedentary work, the remaining work category, is not addressed in conjunction with his other disabilities.  The December 2012 audiology examination notes the Veteran's complaints that his hearing loss disability interferes with his ability to decipher what is being said and the audiologist notes that the Veteran's reliance on hearing aids affects his employability.  By contrast, the February 2013 audiologist has stated that the Veteran is capable of working, and noted that the Veteran is able to carry on normal conversations with the help of his hearing aid.  Thus, the evidence is at least in equipoise as to whether the Veteran's service connected disabilities (psoriasis, bilateral hearing loss, and arthritis) have rendered him unemployable.

Considering the pertinent evidence in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds, for reasons set forth below, that a TDIU is warranted.


ORDER

A total disability rating based on individual unemployability is granted.




____________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs