Citation Nr: 1330282 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-34 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1999 to September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in June 2010. A copy of the transcript of that hearing has been associated with the claims file. The issue was remanded for further development by the Board in August 2012 to obtain the Veteran's vocational rehabilitation records and to afford the Veteran with a VA examination regarding his ability to maintain gainful employment. The records were obtained and the Veteran was afforded VA examinations in August, September, and October 2012. The examiners provided the requested opinion and a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to an increased rating for major depressive disorder 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. FINDING OF FACT The Veteran's service-connected disabilities render him unable to maintain substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C.A. §§ 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to TDIU, which constitutes a complete grant of the appeal. Because the full benefit sought on appeal is being granted and the Veteran is not prejudiced by the Board's rendering of this decision, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). TDIU 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. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any non-service connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, should be considered. Id. For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word substantially suggests intent to impart flexibility into a determination of a veteran's overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In this case, the Veteran contends that he is unable to secure employment due to his multiple service-connected disabilities, namely his major depressive disorder, rated at 50 percent; left knee retropatellar pain syndrome, rated at 20 percent; right knee retropatellar pain syndrome, rated at 20 percent; low back muscle strain with mild degenerative changes, rated at 20 percent; left shoulder strain, rated at 10 percent; and tinnitus, rated at 10 percent. He states that his service-connected disabilities prevent him from securing substantially gainful employment. The Veteran is service connected at 50 percent for his major depressive disorder and at 80 percent overall. The percentage criteria for TDIU are met. 38 C.F.R. § 4.16(a). Additionally, when resolving doubt in the Veteran's favor, the record establishes that the Veteran is unable to obtain or sustain substantially gainful employment. The Veteran struggles to maintain employment. The Board acknowledges the VA examiners' opinions in August 2012, September 2012, and October 2012 finding no basis of TDIU; however, these statements are isolated opinions related to the Veteran's ability to work. The three examinations considered the Veteran's ability to obtain and maintain substantial employment for each individual disability, rather than the Veteran's overall disability picture. When considering only the psychiatric or the physical, or the auditory disabilities, the examiners found the Veteran to be able to maintain some type of employment. The examiners never considered the Veteran's disability picture as a whole. When considering the Veteran's vocational rehabilitation records, the reports show that the Veteran previously maintained employment requiring prolonged standing and walking. Specifically, an October 2011 vocational rehabilitation record shows that the Veteran's knee and back disabilities limit his ability to perform work-related tasks. Additionally, the record shows that the Veteran has not overcome his vocational impairment and that the Veteran appears to lack transferable skills to qualify for suitable employment. The Veteran had difficulty with heavy lifting, carrying, stooping, kneeling, crawling, climbing, prolonged sitting, and prolonged standing. The counselor found that a review of the Veteran's personal and vocational history reveals that he is in possession of a serious employment handicap. In addition to his physical disabilities, the Veteran has depressed mood, near-continuous panic or depression, chronic sleep impairment, disturbances of motivation and mood, and suicidal ideation. The report also noted that the Veteran lacked education and experience for suitable employment. The Board acknowledges the Veteran's assertions that he is interested in employment as a Gunsmith. At times however, the counselors noted that this is not a viable option. Moreover, that same above-referenced October 2011 report shows that the Veteran was initially trained toward nursing and secondary school teacher, but because of an increase in his disabilities, achievement of his vocational goals in these areas was not feasible. It was also reported that he worked as a bartender, but was fired because he was unable to perform at a fast pace due to his knee disorders. Of note, the Veteran's service-connected back disability is also rated as 20 percent disabling. Again, the Board notes that the word substantially suggests intent to impart flexibility into a determination of a veteran's overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). When combining the physical and psychiatric symptoms, the Board finds that the Veteran is unable to obtain and maintain substantially gainful employment. After resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for TDIU have been met. 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to a TDIU is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs