Citation Nr: 1333195 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-14 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1962 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2009 by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, a September 2006 rating action denied entitlement to a TDIU. The Veteran did not file a notice of disagreement with the September 2006 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the September 2006 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2013). In May 2013, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing. FINDINGS OF FACT 1. The combined disability evaluation for the Veteran's service-connected disabilities is currently 80 percent. 2. The Veteran works on a part-time basis; the earnings from this position do not represent substantially gainful employment. 3. The medical evidence of record indicates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 is necessary. A TDIU may be assigned where the schedular rating is less than total if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); Faust v. West, 13 Vet. App. 342, 356 (2000). The Veteran is service connected for healed fracture of the right tibia and fibula with right total knee replacement, rated as 60 percent disabling; ankylosis of the subtalar joint fibrous fusion of right oscalcis and talas, rated as 20 percent disabling; lumbar disc disease, rated 20 percent disabling; neuropathy of right saphaneous nerve with numbness/right lumbar radiculopathy, rated 20 percent disabling; and degenerative joint disease of the right knee, rated 10 percent disabling. Under 38 C.F.R. § 4.25, his combined disability evaluation is 80 percent. Therefore, his disabilities satisfy the criteria set forth in 38 C.F.R. § 4.16(a) (2013). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). After his military service, the Veteran worked full time as a postal carrier for many decades. After about 20 years of employment with the post office, he obtained a bachelor's degree in accounting and finance at night school. However, he stayed with the post office and never used that degree. Thus, he has always worked in jobs that required physical labor, or as a window clerk, taking packages and selling stamps. When his service-connected disabilities eventually restricted him from standing, walking, and carrying things, the post office could not accommodate the disability and he retired in June 2002. Throughout the appeal period, the Veteran has worked part time (averaging 15 hours per week) at the Registry of Deeds, performing sedentary work. There is a considerable difference in his income from when he was employed full time; he makes roughly a fourth of what he made at the post office. In the September 2012 supplemental statement of the case, the RO acknowledged that the Veteran's wage records show his earnings for 2008 to 2010 were below the poverty threshold. In May 2013, the Veteran testified that he continues to perform the same work and earn the same wages, and a June 2013 VA treatment record confirms he is still employed in this capacity. Therefore, throughout the appeal period, the Veteran's employment has not been substantially gainful employment. Faust. The Veteran's private treating orthopedic surgeon stated in a February 2008 letter that the Veteran is "100 percent disabled from really any gainful employment because of the sever[ity] of his current problems with his knee and ankle that are causally linked to his [service]." An August 2006 VA examiner opined that the Veteran was no longer able to do his former work as a postal worker due to his service-connected disabilities, "but his disabilities do not preclude sedentary employment." Similarly, the June 2012 VA examiner opined that the Veteran's overall disability does not preclude him from minimal physical and sedentary employment. The April 2009 VA orthopedic examiner opined that he was able to do mild sedentary employment; "however, on reviewing the comorbidities and also the description of ongoing pain, I believe that it adds another factor that would contribute to his unemployability." In summary, all of the VA examiners found that the Veteran's service-connected disabilities precluded him from anything but mild and minimal sedentary employment. Throughout the appeal period, the Veteran has been engaged in mild, minimal sedentary employment. However, such employment is not substantially gainful. This is consistent with the 2008 medical opinion of the private orthopedist. Based on the lay and medical evidence, and resolving any reasonable doubt in the Veteran's favor, the Board finds that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. ORDER Subject to the law and regulations governing payment of monetary benefits, a total disability rating based on individual unemployability due to service-connected disabilities is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs