Citation Nr: 1337209 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 12-07 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada 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 WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to December 1971. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied entitlement to a TDIU. Jurisdiction was later transferred to the RO located in Reno, Nevada. A hearing was held in May 2013 at the RO before the undersigned Veterans Law Judge of the Board ("Travel Board" hearing), a transcript of which is of record. FINDING OF FACT The Veteran is incapable of securing and maintaining substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria are met for a TDIU. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.3, 4.15, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA's Duty to Notify and Assist the Veteran The Veterans Claims Assistance Act (VCAA) provides that 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Because the claim is being granted, any error related to the VCAA is rendered moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). Governing Law, Regulations and Analysis Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a) (2013). Disabilities resulting from common etiology or single accident or affecting both upper and lower extremities are considered as one collective disability for the purpose of determining whether these threshold minimum rating requirements are met. Provided a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of his service-connected disabilities. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extra-schedular consideration. While the procedures for assignment of a total disability rating on an extraschedular basis would require referral to the RO for further disposition, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extra-schedular evaluation in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); see also Floyd, supra. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. See also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or his advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In addition, "marginal employment" shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Rather, the Court has accepted the definition of substantially gainful employment as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), citing to VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (December 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). See also Ferraro, 1 Vet. App. at 332 (determining that substantially gainful employment suggests "a living wage"). The Veteran submitted formal claim for a TDIU (VA Form 21-8940) in October 2007. Based on a combination of service-connected impairment from PTSD and diabetes mellitus, the schedular criteria have been met. The Veteran has a 70 percent rating for PTSD since June 7, 2002. He is also service connected for diabetes mellitus, rated as 20 percent disabling; and peripheral neuropathy of the right upper and right lower extremities, each rated as 10 percent disabiling. On a January 2009 VA examination, the opinion given was that "[i]t is very likely that [the Veteran's] PTSD impacts his ability to obtain/maintain gainful employment in a conventional workplace with coworkers and supervisors. He is frequently irritable, guarded and avoidant in interpersonal situations. However, his two-year history of being an independent business owner shows that he is capable of working alone. He reports through his business he researches, finds, repairs and sells antiques, collectibles and memorabilia. Further, he notes the work to be calming and therapeutic. It is my clinical opinion, given the Veteran's current self-employment status, that he is gainfully employable as an independent businessman." However, on a May 2012 VA examination for PTSD the examiner, a psychiatrist, concluded that the Veteran was "not employable because of his anger, inability to get along with others, avoidance behavior and isolation." Moreover, a May 2012 VA general medical examination concluded that "[the Veteran's] sedentary and physical unemployabilities are mainly affected by his PTSD. Per [the Veteran], [he] could not hold a job due to PTSD since his last job as a furnace technician about 10 years ago... [The Veteran] has no medical (as opposed to psychiatric) conditions affecting physical or sedentary employability." Given these findings, unemployability due to service-connected disability is sufficiently shown throughout the entire appellate period, when resolving reasonable doubt in the Veteran's favor as VA is to do under the benefit-of-the-doubt doctrine. See 38 C.F.R. § 4.3. The Board is also mindful of the somewhat conflicting opinion of the January 2009 VA examiner that the Veteran retained employability by reason of maintaining his own business. To this effect, the Veteran and his representative have stated to the contrary that this business venture brought in very limited income, to the point that it would be best characterized as "marginal employment." There is no immediate reason to question the veracity of these assertions. There is also indication from contemporaneous VA clinical findings that according to the Veteran, this storefront business operated only in the warmer months, as he could not afford to maintain heat and lighting bills for it in the winter. Hence, a TDIU is granted for the entire appellate period. ORDER A TDIU is granted, subject to the laws and regulations governing the payment of VA compensation benefits. __________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs