Citation Nr: 1327207 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-32 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which increased the evaluation for bilateral hearing loss to 30 percent effective December 31, 2009; continued a 30 percent evaluation for posttraumatic stress disorder (PTSD), a 20 percent evaluation for diabetes mellitus, type II (DM), 10 percent evaluations for peripheral neuropathies of the bilateral upper and lower extremities, and 0 percent evaluations for residuals of a shrapnel wound of the right lower leg and erectile dysfunction (ED); and denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In July 2010, the Veteran submitted a notice of disagreement with the denial of TDIU. He subsequently perfected his appeal in November 2011. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran has been service connected for PTSD and bilateral hearing loss, each evaluated as 30 percent disabling; DM, evaluated as 20 percent disabling; bilateral tinnitus, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the right lower extremity, and peripheral neuropathy of the left lower extremity, each evaluated as 10 percent disabling; and ED and residuals of a shrapnel wound of the right lower leg, each evaluated as noncompensably disabling; the combined rating is 80 percent. 2. 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 FINDINGS 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 December 2009 Application for Increased Compensation Based on Unemployability indicated that he has not worked since December 31, 2009 due to his service-connected PTSD, DM, hearing loss, and peripheral neuropathies. He also reported having completed 4 years of high school education, no college or other education or training, and previous employment from 1972 to 2009 as an insurance agent. 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 PTSD and bilateral hearing loss, each evaluated as 30 percent disabling; DM, evaluated as 20 percent disabling; bilateral tinnitus, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the right lower extremity, and peripheral neuropathy of the left lower extremity, each evaluated as 10 percent disabling; and ED and residuals of a shrapnel wound of the right lower leg, each evaluated as noncompensably disabling. His combined rating is 80 percent with consideration of the bilateral factor 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, 4.26 (2012). Although none of his disabilities are individually rated as 40 percent disabling or more, his DM, peripheral neuropathies, and ED all result from a common etiology (that is, DM). Therefore, they count as one disability and have a combined rating of 50 percent with consideration of the bilateral factor. 38 C.F.R. §§ 4.16(a)(2), 4.25, 4.26 (2012). Further, his PTSD, hearing loss, tinnitus, and residuals of a shrapnel wound of the right lower leg are all injuries incurred in combat action. Therefore, they also count as one disability and have a combined rating of 60 percent. 38 C.F.R. §§ 4.16(a)(4), 4.25 (2012). 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 afforded VA psychiatric, audiological, and general medical examinations and opinions to address his service-connected disabilities and employability in February 2010. At that time, the PTSD examiner concluded that the Veteran's work stress and PTSD symptoms contributed to his decision to retire and that the Veteran reported missing 6 weeks of work in the last 10 months of his employment due to his PTSD. Although the examiner concluded that the Veteran's psychiatric symptoms appeared to be a minor factor in his decision to retire, the significant amount of work missed due to PTSD seems to contradict this conclusion. The audiological examiner concluded that the Veteran's bilateral moderate to profound sloping sensorineural hearing loss would cause difficulty hearing and understanding in the presence of background noise. She did not opine on whether it rendered the Veteran unemployable. Finally, the general medical examiner noted that the Veteran was limited in his physical activities, including walking, and experienced generalized fatigue and weakness due to his DM. In addition to the VA examinations, the medical evidence includes VA treatment records that support the Veteran's contentions of unemployability. Notably, a January 2012 VA psychiatric treatment record indicated that the Veteran's PTSD was clinically seen as getting worse over time and listed a psychosocial stressor as his inability to work. Although this treatment record does not specifically state that the Veteran is unemployable due to his service-connected disabilities, including PTSD, it seems to imply such. Affording the Veteran the full benefit-of-the-doubt, the Board finds that he is unemployable due solely to his service-connected physical and mental disabilities. Although the February 2010 VA examiners did not specifically conclude that the Veteran's disabilities would 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 Veteran's work history includes only work as an insurance agent, a job that presumably requires significant communication skills and, as reported by the Veteran, caused a great deal of stress. In light of the audiological examiner's concerns about the Veteran's ability to hear and understand people with background noise and his PTSD symptoms, which worsened with stress, the medical evidence seems to rule out employment in his past job. 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 for the 37 years prior to his retirement is reflective of work as an insurance agent. He has four years of high school education and no college or other education or training. The limitations placed on him by his audiological, physical, and psychiatric disabilities seem to prevent him from continuing his work as an insurance agent 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 new or different work setting is not a reasonable possibility for the Veteran. 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. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs