Citation Nr: 1335170 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 06-17 841A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to February 1970 and from March 1972 to May 1990. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a claim which arose from a rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). This issue was remanded by the Board in April 2012 for additional development. In October 2012, the Veteran raised the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus. This issue has not been developed for appellate review and is therefore referred to the RO for appropriate disposition. FINDING OF FACT The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013). VA has issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Without deciding whether the notice and development requirements of the VCAA have been satisfied in the present case, this law does not preclude the Board from adjudicating the issue involving the Veteran's claim for entitlement to TDIU as the Board is taking action favorable to the Veteran by granting entitlement to TDIU. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2013). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability 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. 38 C.F.R. § 4.16(a) (2013). If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). Individual unemployability must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Service connection is currently in effect for degenerative chances of the lumbar spine, rated 40 percent disabling; residuals of an injury of the right eye with cataracts, rated as 30 percent disabling; diabetes mellitus, type 2, rated as 20 percent disabling; hypertension, rated as 10 percent disabling; sensory radiculopathy of the left lower extremity, rated as 10 percent disabling; and bilateral hearing loss, rated noncompensable. The Veteran's combined disability rating is 70 percent. 38 C.F.R. § 4.25, Table I (2013). Therefore, the percentage criteria of 38 C.F.R. § 4.16(a) have been met. Accordingly, the Board must examine whether the Veteran's service-connected disabilities render him unemployable. The evidence of record demonstrates that the Veteran has been unemployed since May 14, 2011. A November 2011 Social Security Administration (SSA) disability determination report stated that the Veteran had been disabled for SSA purposes since May 14, 2011. The primary diagnosis associated with the disability was a disc/degenerative back disorder, while the secondary diagnosis associated with the disability was diabetes mellitus. Associated documentation listed the Veteran's educational and occupational history. The Veteran's highest level of attained education was 12th grade, which he had completed in June 1967. There is no evidence of record that the Veteran received any education since his graduation from high school in 1967. The Veteran's occupational history was listed as a boiler technician in the military from 1972 to 1990, followed by a machinist from 1991 to May 2011, with specific employment as a valve technician at a power plant from 1999 to 2005. Following a review of a private medical assessment, the SSA examiner concluded that the Veteran did not have the residual functional capacity to perform any past relevant work. The explanation for this finding was that his previous work was "heavy" in nature. In January 2013, the Veteran was provided with multiple VA medical examinations to determine whether he was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities alone. As part of these examinations, each of the Veteran's service-connected disabilities was fully evaluated and a medical opinion was provided regarding the extent to which it impacted his employability. Of particular note are the medical opinions provided with respect to his lumbar spine and right eye disabilities. The examiner who wrote the lumbar spine examination report opined that the "Veteran's degenerative changes [of the] lumbar spine with history of sensory radiculopathy [of the] left lower extremity precludes strenuous physical labor with heavy lifting, frequent bending, or prolonged (more than 15-20 minutes at a time) walking/standing. It does not preclude light duty or sedentary occupations." The examiner who wrote the eye examination report opined that the Veteran had "severe loss of vision in the right eye [which] would preclude employment requiring binocular vision such as a pilot or truck driver. Veteran can be employed for office work." The evidence of record demonstrates that the Veteran has been unemployed since May 14, 2011. In addition, the preponderance of the evidence of record shows that the Veteran is currently unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The most recent VA medical opinions found that the Veteran's service-connected disabilities preclude his employment in any field that requires strenuous physical labor or binocular vision. The Board notes that the January 2013 VA medical opinions stated that none the Veteran's service-connected disabilities prevented him from performing light duty or sedentary occupations, and office work was specifically cited as employment he could perform. However, the Board notes that entitlement to TDIU is warranted when the Veteran is unable to secure and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013); VAOPGCPREC 75-91 (1991); 57 Fed. Reg. 2317 (1992). The evidence of record shows that the Veteran has been employed as a machinist or technician involved in physical maintenance of machinery for nearly the entirety of his adult life. From 1972 until he left his final job in 2011, the Veteran was employed as a boiler technician, machinist, and a valve technician at a nuclear power plant. There is no evidence of record that indicates that the Veteran has any education or occupational experience that qualifies him for light or sedentary work, such as office work. Thus, while it may be possible for some people with the Veteran's level of disability to secure and follow substantially gainful employment, the Board finds that the Veteran's education and occupational experience make his own prospects significantly less likely. Such a finding is also consistent with the conclusion which was arrived at by the SSA examiner, who found that the Veteran did not have the residual functional capacity to perform any past relevant work. The Board notes that this finding by SSA was made based exclusively on the Veteran's lumbar spine disorder and his diabetes mellitus, both of which are service-connected. Therefore, the Board finds that the preponderance of the evidence of record supports a finding that it is at least as likely as not that the Veteran's service-connected disabilities preclude gainful employment consistent with his education and occupational experience. Accordingly, the Board finds that the preponderance of the evidence of record demonstrates that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. Therefore, a total disability rating for compensation purposes based on individual unemployability is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A total disability rating for compensation purposes based on individual unemployability is granted. ____________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs