Citation Nr: 1338057 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 13-12 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from November 1969 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied the Veteran's claim for TDIU. The Board notes that, in additional to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claim. A review of the Virtual VA claims processing system reveals VA treatment records dated through December 2012; such records were considered by the RO in the March 2013 supplemental statement of the case (SSOC). FINDINGS OF FACT 1. The Veteran's current service-connected disabilities include coronary artery disease, diabetes mellitus with retinopathy and erectile dysfunction, right and left upper extremity neuropathy, right and left lower extremity neuropathy, tinnitus and bilateral hearing loss. His combined rating was 70 percent prior to February 29, 2012 and 90 percent thereafter. 2. The competent evidence on the question of whether the Veteran is unable to secure and maintain substantially gainful employment as a result of his various service-connected disabilities, including his coronary artery disease and diabetes mellitus is, at least, in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.341, 4.1, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant entitlement to TDIU is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. The Veteran contends that he is unable to work due to his various service-connected disabilities, including the symptomatology associated with his service-connected coronary artery disease, diabetes mellitus and extremity neuropathy. The Board finds that the preponderance of the evidence favors that position and hence TDIU is warranted. A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether a veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether a veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Veteran's current service-connected disabilities include coronary artery disease, rated as 60 percent disabling; diabetes mellitus with retinopathy and erectile dysfunction, rated as 20 percent disabling; right and left upper extremity neuropathy, each rated as 20 percent disabling; right and left lower extremity neuropathy, each rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensably disabling. His combined rating was 70 percent prior to August 31, 2010 and 90 percent thereafter. See 38 C.F.R. § 4.25. This combined rating satisfies the statutory requirements for TDIU. See 38 C.F.R. § 4.16(a). In his Applications for Increased Compensation Based on Unemployability (VA Form 21-8940) submitted in May 2011 and February 2013, the Veteran stated that he had a high school education. He further indicated that he had worked full-time as factory laborer from 1972 to 2005. In a March 2008 Disability Report completed in conjunction with his Social Security Administration benefit application, the Veteran detailed his job duties while working as a factory laborer. He indicated that he was responsible for picking up large rolls of paper that weighed 100 pounds and carrying them 10 to 100 feet. The Board notes that although the Veteran reported in a November 2007 VA treatment note that he was attending classes for computer repair, there is no indication in the record that he completed any such course work. Turning to the question of whether the Veteran is unable to secure or follow any form of substantially gainful occupation due to his service-connected disabilities, the Board notes that the record contains several opinion which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The first set of such opinions are reflected in VA opinions dated in August 2011 and January 2012. The August 2011 VA examiner opined that it was as likely as not that the Veteran was not able to engage in sustained physical labor, which was his previous occupation, due to his ischemic heart disease, diabetes mellitus and obesity. The examiner further noted that the Veteran would be able to hold employment that was mostly sedentary in nature or one which required moderate physical activity. In addition, a January 2012 VA diabetes mellitus Disability Benefits Questionnaire (DBQ) examiner noted that the Veteran's diabetes mellitus and peripheral neuropathy would impact his ability to work as his diabetes control required meals at a set time as well as blood sugar monitoring. The January 2012 examiner further noted that the Veteran was unable to walk more than 100 feet before experiencing lower extremity weakness and that he was unable to grasp or lift objects that weighed over five pounds. The second of these opinions is reflected in a March 2011 ischemic heart disease (IHD) DBQ examination report. The VA examiner opined that the Veteran's IHD did not impact his ability to work. However, the physician did not provide a rationale for this opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). This opinion is therefore being afforded little, if any, probative weight. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for TDIU are met. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs