Citation Nr: 1334775 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-01 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability evaluation for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970 and on active duty for training from November 1964 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in June 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, denying the Veteran's September 2007 claim for a TDIU. Jurisdiction of the Veteran's claims folder was later transferred to the RO in Jackson, Mississippi. Pursuant to his request, the Veteran was afforded a hearing before the Board, sitting at the RO, in April 2013. A transcript of that proceeding is of record. FINDINGS OF FACT 1. Service connection has been established for posttraumatic stress disorder, coronary artery disease, diabetes mellitus with diabetic nephropathy, bilateral hearing loss, and peripheral neuropathy of both upper and lower extremities, for which a combined schedular disability evaluation of 90 percent was in effect from April 2006 to July 2010 and 80 percent from July 2010. 2. The Veteran has an eighth grade education and past work experience as a truck driver, with all full-time work reportedly ceasing in or about September 2004. 3. The Veteran's service-connected disabilities, alone, render him unable to engage in or retain substantially gainful employment, consistent with his education and work history. CONCLUSION OF LAW The criteria for assignment of a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). However, as the Board herein grants the benefit sought in its entirety, the need to discuss VA's efforts to comply with the duties to notify and assist is obviated. By this appeal, the Veteran seeks entitlement to a TDIU, citing the severity of his multiple service-connected disabilities and their functional limitations. In his written statements and hearing testimony, he credibly and persuasively describes significant impairments resulting from his diabetes mellitus and secondary disease processes, as well as his hearing loss. Use of a walker to assist the Veteran in walking and maintaining his balance is indicated. While there is evidence supportive and contraindicating entitlement to the benefits, the depth and breadth of the Veteran's multiple service-connected disorders are such that, on balance, TDIU entitlement is warranted. 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 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 purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. 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. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, are for consideration. 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 an intent to impart flexibility into a determination of 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). During the relevant time period, service connection was in effect for PTSD, evaluated as 30 percent disabling; coronary artery disease, evaluated as 60 percent disabling from September 2002 and 30 percent disabling from July 2010; diabetes mellitus with diabetic nephropathy, evaluated as 20 percent disabling; bilateral hearing loss, evaluated as 0 percent disabling from June 1970 and 20 percent disabling from March 2012; and peripheral neuropathy of each upper and lower extremity, each evaluated as 10 percent disabling since April 2006. A combined disability evaluation of 90 percent was in effect from April 28, 2006, and an 80 percent evaluation was made effective from July 21, 2010, and following. Hence, since entry of the Veteran's TDIU claim in September 2007 and prior thereto, the schedular requirements of 38 C.F.R. § 4.16(a) were met. The question thus presented by this appeal is whether the Veteran in connection with his TDIU claim of September 2007 is shown to have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. And, as indicated above, the Board so finds. Information now of record is to the effect that the Veteran has a eighth grade education and prior work experience as a truck driver, with all full-time employment reportedly ceasing in or about September 2004. The fact that the Veteran's service-connected disabilities have been evaluated in combination as 80 to 90 percent disabling throughout the period signifies recognition by VA that there was then present resulting disability and a corresponding industrial impairment. See 38 C.F.R. § 4.1 (2013). Such ratings, however, are not dispositive of the question of whether service-connected disabilities preclude the Veteran from securing and following a substantially gainful occupation during the period in question. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "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." 38 C.F.R. § 4.16(a). In Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), the following was noted: 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. There is evidence both for and against TDIU entitlement. At the time of a Department of Transportation medical examination in November 2007, the Veteran exhibited decreased sensorimotor function, including limitation of the muscles of his leg. In addition, side effects of medications and altered periods of consciousness or loss of bodily control were chronicled, in addition to his insulin-dependent diabetes, the sum of which were determined to preclude the Veteran from driving commercially. When evaluated from a mental standpoint in April 2008, a Global Assessment of Functioning (GAF) Scale score of 45-47 was assigned on the basis of his posttraumatic stress disorder, depression, and associated adjustment disorder. Further evaluations disclosed poor balance requiring use of a walker and an inability to stand or sit for prolonged periods, and yet VA examinations in August and September 2009 were productive of opinions that only mild functional limitations resulted from individual service-connected disabilities and that the Veteran's PTSD did not render him unemployable. VA examination in July 2010 likewise identified but mild functional limitations from coronary artery disease. In September 2011, a VA examiner could not ascertain the level of impairment resulting from each neurological disorder, but opined that the bulk of the Veteran's motor and gait problems were likely the result of nonservice-connected disability. The Veteran's PTSD was found to warrant a GAF scale score of 60 in March 2012 and it alone, in the opinion of the VA examiner, did not completely prevent him from working. Another VA examiner in 2012 noted the same when examining separately the individual effects of the Veteran's diabetes mellitus and coronary artery disease. However, when combining the effects of each, along with the impact of the Veteran's peripheral neuropathy, that same examiner was of the opinion, as set forth on the final page of his report, that the combination of impairments effectively hindered the Veteran's ability to seek and maintain employment, even at a sedentary position. While there is evidence that one or more individual disabilities of the Veteran do render him unemployable, the Board is charged with the responsibility of evaluating the collective effect of his service-connected disabilities based on the evidence presented. The resulting impairments are wide ranging and they affect multiple body systems and capabilities, not the least of which encompasses a severe hearing loss. In combination, the disabilities in question are such as to limit fully the Veteran's ability to obtain and maintain gainful employment. Based thereon, and in view of the Veteran's limited educational background and vocational experience as a truck driver, it is concluded that he is rendered unemployable based solely on multiple service-connected disabilities in connection with his September 2007 application for TDIU entitlement. To that extent, TDIU entitlement is granted. ORDER A TDIU is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs