Citation Nr: 1326159 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 07-28 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to December 1976. He has received a Purple Heart medal for his combat service injuries. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which increased the evaluation for degenerative disc disease of L4-L5 and L5-S1 with stenosis at L4-L5 to 20 percent effective October 12, 2006, and continued a 10 percent evaluation for radiculopathy of the left lower extremity. In February 2007, the Veteran submitted a notice of disagreement with the evaluation assigned for his low back disability, indicating that it prevented him from working. He subsequently perfected his appeal in September 2007. In June 2012, the Board denied the Veteran's increased rating claim and remanded a claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), to the Appeals Management Center (AMC) for further evidentiary development, including providing the Veteran with information regarding what is required to substantiate a TDIU claim and affording him new VA examinations and opinions to address his employability. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC provided the Veteran with the required TDIU notice in a June 2012 letter. Additionally, the Veteran was afforded new VA examinations to address each of his service-connected disabilities and their effect on his employability in July 2012. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. FINDING OF FACT The evidence of record demonstrates that the Veteran is unemployable based solely on his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claim of entitlement to TDIU is being granted herein, as discussed below. As such, the Board finds that any error related to the VCAA is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran claims that he is unemployable due solely to his service-connected disabilities. Specifically, the Veteran's September 2007 Application for Increased Compensation Based on Unemployability indicated that he has not worked since January 2007 due to his service-connected low back disability. He also reported having completed 4 years of high school education, no college or other education or training, and previous employment as a mechanic. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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) (2012). Disabilities resulting from a common etiology or a single accident and multiple injuries incurred in action are considered one disability for the purpose of reaching the 60 percent single disability or 40 percent disability in combination with others. 38 C.F.R. § 4.16(a)(2), (4) (2012). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b) (2012). 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. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, any special training, and previous work experience, but 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). The Veteran is service connected for shell fragment wounds (SFWs) of the right hip and thigh and posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling each; degenerative disc disease of L4-L5 and L5-S1 with stenosis at L4-L5 and diabetes mellitus, type II (DM), evaluated as 20 percent disabling each; shrapnel wounds of the right elbow and arm (major), evaluated as 10 percent disabling; and a scar from a SFW of the right shoulder (major), radiculopathy of the left lower extremity, a right elbow scar, and a right lateral thigh scar, each evaluated as noncompensably disabling. His combined rating is 70 percent according to Table 1 of 38 C.F.R. § 4.25. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.25 (2012). Although none of his disabilities are individually rated as 40 percent disabling or more, his SFWs of the right hip and thigh, PTSD, shrapnel wounds of the right elbow and arm, and three scars are all injuries incurred in combat action. Therefore, they count as one disability and have a combined rating of 60 percent. Accordingly, the Veteran's service-connected disabilities meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a) (2012). The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities render the Veteran unemployable. The Veteran was most recently afforded VA medical and psychiatric examinations and opinions regarding the effect of his service-connected disabilities on his employability in July 2012. The medical examiner concluded that his scars and DM had no effect on his employability, but that his low back and right elbow/arm disabilities would limit him to sedentary or light duty jobs, including desk jobs where he could answer phones, take messages, and do light computer or calculator work. The examiner added the caveat that the Veteran would need rest/stretching breaks every 30 minutes for his low back and rest breaks every one to two hours for his right elbow/arm. The psychiatric examiner noted that the Veteran's PTSD would negatively impact his functioning in a work setting, specifically due to his inability to tolerate others and irritability which have led to intermittent periods of the inability to perform his work in the past, but that it would not preclude employment. The Veteran was previously afforded VA examinations and opinions to address his employability in January 2008. At that time, the examiners concluded that his PTSD had moderate effects on his employability, but that his physical health seemed to be the primary impediment, and that he could do sedentary or light physical work as he was able to work on cars for four to five hours per day at that time. Affording the Veteran the full benefit-of-the-doubt, the Board finds that he is unemployable due solely to his service-connected orthopedic and psychiatric disabilities. Although the January 2008 and July 2012 VA examiners concluded that the Veteran's disabilities would not individually render him unemployable, the Board finds that the combined effects of all of his service-connected disabilities, in light of his education and work experience, do render him unemployable. The July 2012 medical examiner suggested that the Veteran could work at a desk job, interacting with people by taking messages and answering phones. However, this suggestion seems to contradict the July 2012 psychiatric examiner's opinion that the Veteran would be limited by his inability to tolerate other people and irritability. Further, his only work experience is as a mechanic and there is no indication that he is qualified by education or otherwise to perform light computer or calculator work, as suggested by the July 2012 medical examiner. As referenced above, the regulations regarding TDIU require consideration of the Veteran's employment and educational history. In this case, the Veteran's employment history from his separation from service to 2007 is reflective of work as a mechanic. He has four years of high school education and no college or other education or training. The limitations placed on him by his orthopedic disabilities prevent him from continuing his work as a mechanic and there is no indication that he has experience in any other field or setting or that he has received any training or education relating to or in furtherance of another occupation. In consideration of this previous work experience and education level, the Board finds that employment in a work setting other than those found unfeasible by the July 2012 VA medical examiner is not a reasonable possibility for the Veteran. Further, to the extent that the January 2008 VA examiner found the Veteran could engage in sedentary or light physical work because he could work four to five hours per day on cars, the Board notes that such a schedule does not constitute full-time or gainful employment. Accordingly, the Board finds that the evidence demonstrates that the Veteran is unemployable as a result of his service-connected disabilities. The criteria for TDIU have been met. ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs