Citation Nr: 1331229	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  13-05 638	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant; D.M.


ATTORNEY FOR THE BOARD

N. Holtz, Associate Counsel

INTRODUCTION

The Veteran had active duty service from January 1951 to December 1952.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

The Veteran testified at a July 2013 videoconference hearing before the undersigned; a transcript of those proceedings is associated with the Virtual VA paperless record. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's service-connected bilateral foot disabilities preclude him from obtaining or maintaining substantially gainful employment.


CONCLUSION OF LAW

The criteria for a TDIU have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.16, 4.26 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  With regard to the issue being adjudicated, the Board is granting the claim for TDIU.  Thus the claim is substantiated, and there are no further VCAA duties.  

Applicable Legal Principles

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more and if there are two or more 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).  For determining whether a 60 percent disabilities is in effect, disabilities of both lower extremities will be considered together.  Id.

The Veteran is service-connected bilateral residuals of cold injuries of the feet, with residual painful neuropathy, onychomycosis, and cold sensitivity; he is assigned a 30 percent rating for each foot, which combined, including the bilateral factor of 5.1 percent (38 C.F.R. § 4.26), provide the Veteran with a 60 percent disability rating.  As such, he meets the minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for entitlement to a total disability evaluation based on individual unemployability due to service connected disorders.

In determining whether a Veteran is entitled to TDIU, consideration is given to his level of education, special training, and previous work experience, but not to his age or impairment caused by disabilities that are not service connected.  See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2013).  For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation.  VAOPGPREC 75-91, 57 Fed. Reg. 2317 (1992).

To be awarded TDIU, the Veteran's service-connected disabilities, standing alone, must be sufficiently severe to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating itself is recognition that industrial capabilities are impaired.  Indeed, according to 38 C.F.R. § 4.1 (2013), generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  Therefore, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail.  As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment.

Evidence

The Veteran asserts that his service-connected foot disabilities prevent him from being able to secure and maintain substantially gainful employment.  He claimed in his August 2010 application that he last worked full time in 1983, in car assembly, and that he worked approximately 16 hours per week from 1990 to 1994 performing yard maintenance.  He claims that he originally retired in part due to his service-connected disabilities, that those disabilities prevented him from continuing his work in yard maintenance in 1994.  

The Veteran's educational background consists of a high school education.  Regarding his work history, he worked for approximately 23 years in car assembly, and performed four years of yard maintenance.  

Throughout the period on appeal, the Veteran has received regular treatment for foot pain and onychomycosis from a private treatment provider.

He underwent a VA examination in November 2010, at which time he informed the examiner that he quit his yard maintenance job due to his feet.  He stated that he could not work because his feet would get sore, and his toes would "fall asleep."  He spent his days doing home projects and yard work.  The examiner noted that his toes would become numb, and that the numbness sensation would travel up his feet; as a result, the Veteran wore large shoes.  Notably, the examiner incorrectly stated that the Veteran was not receiving treatment for his feet.  

The Veteran's non service-connected disabilities included atrial fibrillation, coronary artery disease, memory loss, hypertension, benign prostatic hypertrophy, and lumbar degenerative joint disease.  His lumbar disability prevented heavy lifting or repetitive bending, and his coronary artery disease resulted in shortness of breath when climbing a flight of stairs.  

The examiner opined that the residuals of cold injury to the Veteran's feet did not make him unemployable.  Although he would not be able to work outdoors in cold weather, and would need to sit and rest his feet for approximately 10 minutes if he was standing for more than two or three hours, the examiner suggested it was his non-service-connected disabilities, including the limits on physical activity due to his heart condition, his limits on repetitive bending or lifting due to his spine condition, and the impact on mental functioning caused by his memory loss, that would prevent employment.  The examiner further noted that the Veteran was probably restricted in finding employment since he had not had regular employment for 26 years.  

The Veteran testified at his July 2013 videoconference hearing that his disability was actually worse than described by the VA examiner.  He described a disability that had significantly worsened since his retirement, and now impacted both his mobility and his ability to perform sedentary tasks.  Whenever he sat for ten or fifteen minutes, he would have to get up and move around because his feet would begin to burn and tingle.  His walking ability was limited due to pain and numbness, and the fact that the numbness made him unsteady on his feet.  Also, he said that his sleep was impaired due to foot pain at night, and the lack of sleep further encumbered his abilities and concentration during daytime hours.

D.M. testified at the hearing that she had witnessed him at church at times when he was unsteady on his feet and had to support himself in door jams for balance.

Analysis

The above evidence reflects that the Veteran is significantly impaired in his ability to perform sedentary duties.  In addition to the fact that he has no education, training, or work experience that might qualify him for a sedentary position, he is unable to stay seated for any length of time.  Every few minutes he has to get up and walk around to prevent his feet from becoming numb and painful.

While the evidence is less clear as to ability to perform physical labor (irrespective of his age or the effects of non-service-connected disabilities), the Veteran has offered competent, credible testimony that he cannot stay on his feet for long periods of time because of how painful his feet become.  Even when considering the November 2010 examiner's findings that the Veteran would have to rest for approximately ten minutes every two or three hours of standing, it is evident that such requirements would significantly impair his ability to perform the physical requirements for many types of employment.

The evidence therefore reflects that the Veteran must perform a regular rotation of sitting and standing, and that neither activity prevents his feet from becoming painful, thus impairing his ability to perform both sedentary and physical labor.

There is thus evidence that the Veteran's bilateral foot disabilities significantly impair his ability to obtain or maintain both sedentary and physical employment.  There is also evidence that, as indicated by the November 2010 VA examiner, that the Veteran's non service-connected disabilities significantly impair his ability to obtain or maintain substantially gainful employment.  It is the Board, however, that must make the legal determination as to the effect of the Veteran's service-connected disabilities on his employability.  See Moore v. Nicholson, 21 Vet. App. 211, 218-19 (2007), rev'd on other grounds, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. Feb 10, 2009) (discussing allocation of responsibilities between a medical examiner and a rating specialist); 38 C.F.R. § 3.100(a) (2013) (delegating the Secretary's authority "to make findings and decisions ... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); VA Adjudication Procedures Manual Rewrite, pt. III, subpt. iv, ch. 3, § A-9(j) ("Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity").  The above discussion reflects that the evidence is approximately evenly balanced as to whether it is the Veteran's service-connected or non service-connected disabilities that preclude him from obtaining or maintaining substantially gainful employment.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran's service-connected foot disabilities preclude him from obtaining or maintaining substantially gainful employment.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).  Entitlement to a TDIU is therefore warranted.


ORDER

Entitlement to a TDIU is granted, subject to controlling regulations governing the payment of monetary awards.



____________________________________________
J. HAGER
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs