Citation Nr: 1328311 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 11-31 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: John Dorrity, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from September 1951 to June 1953. This appeal comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Newark, New Jersey, regional office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The Veteran appeared at a hearing before the undersigned at the RO in July 2013. A transcript of this hearing is in the electronic record. The issues of entitlement to increased ratings for cold injury residuals and special monthly compensation based on the need for aid and attendance or being housebound has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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. The Veteran's service connected disabilities combine to an 80 percent rating, with disabilities of the upper and lower extremities that combine to at least 60 percent and arise from the common etiology of a cold injury. 2. The Veteran's service connected disabilities combine to render him unemployable. 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 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Given the Board's favorable decision, no further notice or assistance is required to aid the Veteran in substantiating his claim. A total rating for compensation may be assigned where the schedular rating is less than total, when it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided 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. For the purpose of determining one 60 percent disability or one 40 percent disability, disabilities of one or both upper extremities including the bilateral factor, may be considered together, and disabilities resulting from a common etiology or a single accident may be considered together. 38 C.F.R. §§ 3.340, 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran is service connected for the residuals of a cold injury to the left lower extremity, evaluated as 20 percent disabling; the residuals of a cold injury to the left upper extremity, evaluated as 20 percent disabling; the residuals of a cold injury to the right lower extremity, evaluated as 20 percent disabling; the residuals of a cold injury to the right upper extremity, evaluated as 20 percent disabling; peripheral neuropathy of the right lower extremity, evaluated as 20 percent disabling; and peripheral neuropathy of the left lower extremity, evaluated as 20 percent disabling. He is also in receipt of a noncompensable rating for residuals of a perianal fistula. He has a combined evaluation of 80 percent. The residuals of cold injuries to the left lower extremity, right lower extremity, left upper extremity, and right upper extremity are each the result of a common etiology, and are each evaluated as 20 percent disabling. When combined under the provisions of 38 C.F.R. § 4.25, they are evaluated as 60 percent disabling prior to consideration of the bilateral factor. They are considered a single disability for purposes of 38 C.F.R. § 4.16(a). The question is whether the service connected disabilities render him unemployable. In a February 2012 opinion the Veteran's private doctor stated that the Veteran had significant peripheral vascular disease, significant coronary artery disease, and significant chronic obstructive pulmonary disease. He added that the Veteran was evaluated for leg pain and foot pain secondary to neuropathy. The doctor noted that the Veteran served in Korea during the war, where he suffered severe frost bite. This was a major contributor to his current neuropathy and extremity pain. The Veteran was under treatment without any relief. He experienced constant pain in his legs and feet. This resulted in difficulty ambulating, and he required assistance with his daily skills to safely live at home. The Veteran was currently assisted by family members. The doctor opined that the Veteran was completely unable to perform any type of employment. The doctor added that this was a permanent, life-long condition, and that the Veteran was 100 percent disabled. The Veteran was also afforded a VA examination for cold injuries in July 2012. After completion of the examination and reported record review, the examiner opined that the Veteran's cold injuries did not impact his ability to work. The examiner stated that the Veteran was ambulatory without assistance. He said that the Veteran's cold injury residuals alone did not preclude gainful employment, and added that the Veteran was currently doing odd jobs such as carpentry. At his hearing, the Veteran stated that the VA examiner did not appear to be paying attention to him during the examination and was using a cell phone during much of the examination. The Veteran denied telling the examiner that he worked part time. He testified that he had not worked part time since the 1990's, and currently could not mow a lawn or drive. The February 2012 private opinion discussed disabilities for which the Veteran is not service connected, and which may not be considered in determining whether or not the Veteran is entitled to TDIU. However, this letter also makes it clear that it is the Veteran's service connected disabilities were the primary reason the Veteran is unemployable. In fact, the doctor added that this pain caused the Veteran to require assistance to complete activities of daily living, much less hold gainful employment. While the July 2012 examiner considered only the Veteran's service connected disabilities, he supported his negative opinion by saying that the Veteran did odd jobs such as carpentry. This is contrary to the Veteran's testimony and his August 2012 letter stating that he had not done any such work in six years. The evidence is in at least equipoise. Resolving reasonable doubt in favor of the Veteran, the claim for TDIU is granted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to a total rating based on individual unemployability due to service connected disabilities is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs