Citation Nr: 1329834 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-21 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office, located in Nashville, Tennessee (RO). In June 2011, the Veteran and his wife testified during a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims folder. A review of the records contained in the Veteran's VA Virtual claims folder has been considered in this case. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are the following: posttraumatic stress disorder (PTSD), rated as 50 percent disabling; diabetes mellitus with bilateral cataracts, rated as 40 percent disabling; esthetic defect, left side of face, rated as 10 percent disabling; residuals of fractured maxilla, rated as 10 percent disabling; peripheral neuropathy in the right lower extremity, rated as 10 percent disabling; peripheral neuropathy in the left lower extremity, rated as 10 percent disabling; peripheral neuropathy in the right upper extremity, rated as 10 percent disabling; and peripheral neuropathy in the left upper extremity, rated as 10 percent disabling. The Veteran has a combined rating of 90 percent. 2. After considering impairment from the service-connected disabilities and his occupational experience, and resolving any doubt in his favor, the Veteran's service-connected disabilities do preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disabilities are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). VCAA notice letters were sent to the Veteran regarding his TDIU claim in May 2009. These letters appear to be adequate. The Board need not discuss in detail the sufficiency of the VCAA notice letter in light of the fact that the Board is granting the claim for TDIU. Therefore, because the Board is granting the Veteran's claim, any deficiencies of VCAA notice or assistance are rendered moot. The Board further notes that the Veteran received proper notice as to degree of disability and effective date in the March 2009 VCAA letter, as required by the decision of the United States Court of Appeals for Veterans Claims (the Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As discussed below, the Board is granting the Veteran's TDIU claim. It is not the Board's responsibility to assign a disability rating or an effective date in the first instance. The RO will be responsible for addressing any notice defect with respect to the assignment of an initial disability rating and/or effective date when effectuating the award, and the Board is confident that the Veteran will be afforded appropriate notice under Dingess. Accordingly, the Board will proceed to a decision as to the issue of entitlement to TDIU. 2. TDIU It is the established policy of 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a). The Court noted the following standard announced by the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. See Moore, 1 Vet. App. at 359. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). A total disability rating for compensation 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment cause by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As was discussed above, TDIU may be awarded on a schedular or extraschedular basis. In this case, only the schedular basis need be considered. The Veteran's service-connected disabilities are: PTSD, rated as 50 percent disabling; diabetes mellitus with bilateral cataracts, rated as 40 percent disabling; esthetic defect, left side of face, rated as 10 percent disabling; residuals of fractured maxilla, rated as 10 percent disabling; peripheral neuropathy in the right lower extremity, rated as 10 percent disabling; peripheral neuropathy in the left lower extremity, rated as 10 percent disabling; peripheral neuropathy in the right upper extremity, rated as 10 percent disabling; and peripheral neuropathy in the left upper extremity, rated as 10 percent disabling. The Veteran's combined disability rating is 90 percent; therefore, he meets the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). The question thus becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a). For reasons stated immediately below, the Board finds that the evidence of record demonstrates that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. On his April 2009 application for Increased Compensation Based on Unemployability, VA Form 21-8940, and the Veteran indicated that he last worked on September 28, 2007 as a shipping clerk for Hoover Precision, which has since gone out of business. He had worked as a shipping clerk for approximately 39 years. The Veteran reported that he had received at least three years of college education, but he failed to complete his studies for a degree. The Veteran claims that he is no longer employable because of the severity of his service-connected disabilities, and in particular, because of his PTSD symptomatology. The Board finds that the when viewed in the light most favorable to the Veteran, the evidence is at least in equipoise that he is unable to obtain or maintain substantially gainful employment because of totality of his occupational impairment due to service-connected disabilities. In this regard, the Board acknowledges that a review of the Veteran's VA medical records show that since he last worked in September 2007, the Veteran has continued to participate in recreational activities such as hunting, fishing, camping, as well as effectively participate in household work and outdoor yard work. He also continues to socialize with friends. These VA records also show that the Veteran has been assessed as able to adequately maintain a level of functional capacity and he continues to meet his obligations and responsibilities. In the report of a July 2009 VA psychiatric examination, the VA examiner found that the Veteran was able to maintain a marginally acceptable degree of functioning in retirement similar to the degree of functioning during his working years. Such reported activities and functional assessment suggests that the Veteran would be able to participate in some degree of occupational setting, despite the severity of his service-connected disabilities. However, the Board cannot ignore that in the report of a July 2006 VA psychiatric examination, the VA examiner noted that although the Veteran was currently employed as shipping clerk (prior to his retirement in September 2007), he had limited occupational functioning due to his PTSD symptoms of avoidance behaviors and numbing. The examiner concluded that the Veteran was only able to maintain in employment for the past 30 years because his position involved "unique isolative types of jobs" where he did not need to interact with others. Essentially, it was isolated nature of the Veteran's employment as a shipping clerk that greatly accommodated his ability to maintain his employment for over 30 years with the same company. It suggests that without a similar work environment, the Veteran's PTSD disability would drastically impact his employment prospects. The Board finds it pertinent that it is unlikely that the Veteran will find a similar situated position now that his former plant has shut down. Moreover, in the report of a June 2009 VA general medical examination report, the VA examiner opined that because of his insulin-dependence and hypoglycemic reactions due to his diabetes mellitus disability, the Veteran could not be employed in any strenuous physical labor, such as labor that would involve heavy and repetitive lifting, pushing, pulling, and carrying, and he should avoid climbing ladders or work in high place. The VA examiner also opined that the Veteran's disability due to the peripheral neurology in his lower extremities also impaired his ability to engage in physical labor. The VA examiner further opined that the peripheral neurology his upper extremities impacted the Veteran's ability to engage in sedentary employment because of his difficulty with fine motor movements in his hands. While the June 2009 VA examiner did opine that the Veteran could still preform sedentary work with his diabetes mellitus disability, this medical opinion did not account for any of his other service-connected disabilities. In addition, the evidence of record does not demonstrate that the Veteran has experience with less rigorous or sedentary employment. Although he attended up to three year of college education, he has worked in physical labor for the past 39 years. Moreover, given the constraints of his PTSD symptomatology that would require an isolated work environment as well as his inability to perform fine motor movements in his hands because of his peripheral neuropathy, it is not clear what, if any, sedentary employment the Veteran would have the capacity to perform in order to earn substantially gainful employment. As such, the evidence is at least in equipoise. Resolving all doubt in the Veteran's favor, entitlement to an award of TDIU is warranted, under 38 C.F.R. § 4.16(a). The benefit sought on appeal is accordingly granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to TDIU is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs