Citation Nr: 1329988 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 09-11 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from May 1963 to September 1966 and from September 1971 to April 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at an April 2013 Travel Board hearing. A transcript of the hearing is in the claims file. At the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration of the evidence. The issues of entitlement to dependency allowance and entitlement to an increased rating for coronary artery disease have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are: posttraumatic stress disorder (PTSD), rated at 70 percent; bilateral aphakia, rated at 30 percent; shrapnel wound, right upper leg, rated at 30 percent; coronary artery disease (CAD), rated at 30 percent; residuals of right elbow gunshot wound, rated at 10 percent; tinnitus, rated at 10 percent; recurrent left ankle sprain, rated at 10 percent; residuals of right ankle shell fragment wound, rated at 10 percent; residuals of left thigh gunshot wound, rated as noncompensable; bilateral hearing loss, rated as noncompensable; and bilateral pes planus, rated as noncompensable. His combined disability evaluation is 90 percent. 2. Resolving all reasonable doubt in the favor of the Veteran, the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to a TDIU. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000 is necessary. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). LAW AND ANALYSIS Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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 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). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. 3.340, 3.341, 4.16. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Under section 4.16(b) of VA regulations, 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), the RO may submit such case to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) because the authority to grant such a rating is vested specifically in the Director, Compensation and Pension Service. Should the Board find that a case it is reviewing on appeal is worthy of consideration under section 4.16(b), the Board may remand the case to the RO for referral to the Director, Compensation and Pension Service, but the Board may not grant a total rating in the first instance. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Thus, the decision by the RO whether to refer a case to the Director for extra-schedular consideration is an adjudicative decision subject to review by the Board and the Court. For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran is service-connected for PTSD, rated at 70 percent; bilateral aphakia, rated at 30 percent; shrapnel wound, right upper leg, rated at 30 percent; CAD, rated at 30 percent; residuals of right elbow gunshot wound, rated at 10 percent; tinnitus, rated at 10 percent; recurrent left ankle sprain, rated at 10 percent; residuals of right ankle shell fragment wound, rated at 10 percent; residuals of left thigh gunshot wound, rated as noncompensable; bilateral hearing loss, rated as noncompensable; and bilateral pes planus, rated as noncompensable. The combined evaluation for these disabilities is 90 percent. As such, the minimum schedular criteria for TDIU are met. Thus, the question becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Social Security Administration (SSA) records indicate that the Veteran was granted SSA disability benefits for a primary diagnosis of PTSD since July 2004. The Veteran was evaluated in 2007 for VA purposes. An April 2007 VA eye examination report indicates that Veteran had no complaints regarding his vision and his ability to work. An April 2007 VA psychiatric examination report indicates that the Veteran displayed intermittent periods of inability to perform occupational tasks and that the examiner felt that his impairment in functioning appeared to be more related to his health problems. An April 2007 VA general medical examination report indicates that the examiner opined that the Veteran was not able to function in his previous occupation environment due to predominately to his non-service connected conditions. The Veteran was evaluated again in 2010 and 2011 for VA purposes. A November 2010 VA PTSD examination report indicates that the Veteran continued to relate his unemployment directly to his medical health conditions. An October 2010 VA general medical examination report indicates that the examiner concluded that the Veteran could perform light, sedentary work. An October 2010 VA eye examination report indicates that the examiner opined that there was no reason on the basis of his vision that the Veteran cannot work. A September 2011 VA heart examination report reveals that the examiner concluded that the Veteran's heart disorder did not impact his ability to work. The Veteran testified at an April 2013 Board hearing that he felt that his PTSD, heart condition, ankle and leg disabilities, and hearing disability render him unemployable. An April 2013 letter from the Veteran's private physician notes that due to multiple medical problems including, chronic obstructive pulmonary disease, CAD, hypertension, chronic back pain and anxiety, the Veteran is unable to compete in or prepare for work in a competitive work force. The private physician opined that the Veteran is "totally and permanently" disabled. In considering all the evidence, the Board finds that the Veteran is, for all practical purposes, precluded from substantially gainful employment. While several VA examination reports are of record, there is no combined opinion addressing the cumulative effect of the Veteran's service-connected disabilities. On the other hand, the statement from the private physician along with the disability determination from the SSA indicates that the Veteran's service-connected disabilities of coronary artery disease and PTSD are of such severity as to preclude employment. Moreover, when the Board looks at the totality of the circumstances, including the combined 90 percent rating, it is apparent that the usual amount of success in the Veteran overcoming the handicap of disabilities would be prevented by the combination and severity of his service-connected disabilities. See 38 C.F.R. § 4.15. Based upon the foregoing, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran's service-connected disabilities render him unemployable. Therefore, the benefit of the doubt should be given to the Veteran, and TDIU should be granted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to a TDIU is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs