Citation Nr: 1338212 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-18 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, denied a TDIU rating. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issues of entitlement to service connection for depression and entitlement to a rating in excess of 10 percent for service-connected peripheral neuropathy have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action (if needed). In light of the decision below, the AOJ may wish to inquire as to whether these issues are being withdrawn. The Veteran, in consultation with his representative, may do so at any time in writing. FINDING OF FACT The Veteran's service-connected disabilities have rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION TDIU may be assigned 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. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Id. The central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. § 4.1, 4.15 (2013); Van Hoose, 4 Vet. App. at 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). Here, the Veteran is service connected for coronary artery disease, evaluated at 70 percent disabling, effective September 7, 2006; type II diabetes mellitus, evaluated as 20 percent disabling, effective July 11, 2003; peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling, effective July 11, 2003; and peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling, effective July 11, 2003. Therefore, the Veteran's service-connected disabilities have a combined rating of 70 percent from September 7, 2006, and 40 percent from July 11, 2003. As such, the Veteran meets the threshold for a schedular TDIU rating as of September 7, 2006. See 38 C.F.R. § 4.16(a). The Veteran has asserted that his last full-time job ended in 2003. In his VA Form 21-8940, he indicated that he completed four years of high school with no other training or education. The Veteran indicated previous employment working on HVAC systems and working as a janitor. During his June 2008 VA examination, the Veteran also reported that he worked as a mechanic in a coal mine until 1993, followed by a variety of jobs, including bus driving and bus maintenance. The Veteran reported difficulty maintaining employment particularly due to his neuropathy, stating the pain in his legs interfered with his driving and prevented him from climbing stairs. As an initial matter, the Board notes that the Social Security Administration (SSA) found the Veteran to be unemployable as of September 1, 2005. Although SSA decisions are not controlling for VA determinations, they may be pertinent to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). In the present case, the Veteran was found to be disabled by SSA based on his degenerative disc disease, which is not service-connected. However, the October 2006 SSA decision also found that the Veteran's peripheral neuropathy, which is service-connected, caused pain and numbness in his feet that would limit his ability to manipulate foot controls. SSA records also indicated that the Veteran's peripheral neuropathy prevented him from completing the strenuous physical demands of his previous occupations. In the June 2008 VA examination, the Veteran reported an inability to climb up two flights of stairs without experiencing chest pain or shortness of breath. He also reported he could not walk fifty feet without shortness of breath. Regarding his neuropathy, the Veteran reported numbness, tingling, weakness, fatigue and pain in his feet bilaterally. Ultimately, the examiner confirmed that the Veteran demonstrated symptoms of peripheral neuropathy and dyspnea due to his coronary artery disease. He opined that the Veteran would not be able to obtain any gainful employment at a physically exertional job (jobs the Board notes he has done in the past), but that he would be more suited for sedentary work (jobs the Board notes the Veteran has not done much of in the past). The VA examiner based the aforementioned conclusion on a thorough review of the Veteran's reported history and the objective results of a physical examination. The examiner provided a conclusion with a supportive rationale, and the June 2008 VA medical opinion is therefore probative. See Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). In March 2009, the Veteran's treating physician, "Dr. J.S." affirmed that he had treated the Veteran for several years. Dr. J.S. stated that as a result of his peripheral neuropathy and diabetes, the Veteran was unable to "work at any physically demanding job or a sedentary type job." Dr. J.S. explained that the Veteran had to stand up and walk around often due to neuropathy in his feet and that he had trouble touching and manipulating items, making it difficult for him to use a keyboard. In May 2010, the Veteran submitted another, more detailed VA Form 21-8940 describing his work history, listing work experience from 2003 to include maintenance work, custodial positions, bus driving, and HVAC services. The Veteran also submitted November 2010 correspondence from a VA Rehabilitation Counselor in which the Veteran was denied participation in a return-to-work program. The Rehabilitation Counselor advised the Veteran that it was "not feasible for you to benefit from a program designed to return you to gainful employment." Giving the Veteran the benefit of the doubt, the Board finds that a TIDU is warranted due to the Veteran's service-connected disabilities. The Board recognizes that the Veteran has non-service connected disabilities, particularly degenerative disc disease, which contributed to SSA's finding that the Veteran was permanently disabled as of September 2005. However, taking into account the Veteran's high school level of education and limited training for industrial and physically demanding occupations, the Board finds that the evidence of record shows that the Veteran's service-connected disabilities have made him unable to secure or follow a substantially gainful occupation. Thus, the Board grants a TDIU. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, the Board is granting the benefit sought by the Veteran. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify, the duty to assist, or the duties under 38 C.F.R. 3.103(c)(2), such error was harmless and will not be further discussed. ORDER Entitlement to a TDIU is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs