Citation Nr: 1340324 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-27 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to a TDIU. In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. FINDINGS OF FACT 1. The Veteran's service-connected disabilities include bilateral hearing loss, rated at 50 percent; tinnitus, rated at 10 percent; diabetes mellitus, type II, rated at 20 percent; peripheral neuropathy in both right and left upper extremities each rated at 20 percent; peripheral neuropathy in both right and left lower extremities each rated at 10 percent. The combined evaluation for these disabilities, including the bilateral factor, is 80 percent. As such, the minimum schedular criteria for a TDIU are met. 2. Resolving all reasonable doubt in the favor of the Veteran, the Veteran's service-connected disabilities preclude him from maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and need not be discussed further. II. Entitlement to a TDIU The Veteran contends that his service-connected hearing loss, diabetes mellitus and diabetic complications, including peripheral neuropathy of both upper and lower extremities, prevent him from "continuing gainful employment." See February 2009 Claim. It is the established policy of the 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). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran also does not have to prove that he or she is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a). Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In addition, the law recognizes that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity. See 38 C.F.R. § 4.10. 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 at 60 percent or more, and that, if there are two or more such 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). Here, the Veteran is service-connected for bilateral hearing loss, rated at 50 percent; tinnitus, rated at 10 percent; diabetes mellitus, type II, rated at 20 percent; peripheral neuropathy in both right and left upper extremities each rated at 20 percent; peripheral neuropathy in both right and left lower extremities each rated at 10 percent. The combined evaluation for these disabilities, including the bilateral factor, is 80 percent from September 23, 2008. As such, the minimum schedular criteria for a TDIU have been met. Thus, the question becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The record reflects that the Veteran was employed as a supervisor from May 1972 until his retirement in July 2007. Thereafter, the Veteran took a part-time job as a Sales Associate from March 2008 to February 2009. His part-time employer stated that the Veteran left the job due to "Disability". See April 2009 response to Request for Employment Information in Connection with Claim for Disability Benefits. In September 2007, the Veteran underwent a VA examination in connection with his claim for service connection for bilateral peripheral neuropathy of his lower extremities. At that time, his gait was normal, but he was experiencing pain and numbness in both feet. The examiner noted that the Veteran was retired and reported that the cause of retirement was "Medical (physical problem)" specifically "Pain/numbness both feet." In December 2008, the Veteran underwent a VA audiological examination in connection with his claim for an increased rating for his bilateral hearing loss. The examiner noted that his hearing loss had "significant effects" on his occupation and explained that the Veteran "reports his daily and employment functional difficulties as an inability to hear people talk . . ." In July 2009, the Veteran underwent a VA examination in connection with his TDIU claim. The examiner reviewed the Veteran's medical records, but not the rest of the claims file. The examiner noted the Veteran's peripheral neuropathy and that the Veteran was experiencing a gradual increase of pain and numbness in both feet that was becoming "progressively worse." He noted that the Veteran's gait was not normal but instead antalgic, indicating pain with weight-bearing. The examiner reported that the Veteran's response to treatment for peripheral neuropathy was "fair". He stated the same regarding the Veteran's diabetes mellitus. As to the Veteran's employment history, the examiner noted he was currently retired and that the cause of retirement was that he was "eligible by age or duration of work". In a "Summary of Problems", the examiner noted that peripheral neuropathy had a severe effect on nearly all daily activities: chores, shopping, exercise, traveling, feeding, bathing, dressing, toileting, grooming and driving. The examiner noted the Veteran did not participate in sports and his neuropathy prevented recreation. Following a review of the medical evidence, the examiner opined: [A]fter retirement worked part time as a clerk which required being on his feet all day and had to stop due to pain and numbness in the feet and difficulty with hearing while working with the public. He could[,] however, work if it were a sit down job with appropriate times for meals due to diabetes. The Board notes that the examiner did not specifically address the peripheral neuropathy in the Veteran's upper extremities and what impact that might have on his employment. In his December 2009 Notice of Disagreement (NOD), the Veteran requested another, more comprehensive examination that would take into account all of his service-connected disabilities. However, based on the evidence of record, the Board finds that a remand is not necessary. This is because the available evidence is sufficient for the Board to resolve any doubt in the Veteran's favor. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). The Veteran contends that neuropathy of the upper extremities prevents him from typing on a computer keyboard or doing any sort of assembly line or clerical work that would require repetitive movement of the hands or arms. See December 2009 NOD, April 2012 Statement of Accredited Representative. He also states that even with amplification devices, he experiences difficulty hearing conversations on the telephone. Id. This evidence supports the conclusion that the Veteran's service-connected disabilities do preclude him from "gaining or maintaining meaningful employment." See June 2010 Form 9. The Board acknowledges that the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Also notable is that marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. As mentioned, between March 2008 and February 2009, the Veteran worked part-time as a Sales Associate. His income, as stated on a Request for Employment Information in Connection with Claim for Disability Benefits, was $11,333.81. This amount is very close to the 2008/2009 poverty threshold as reported by the U.S. Department of Commerce, United States Census Bureau. The record reflects that that Veteran has not held more than marginal employment since 2007. In addition, he has not sought treatment for any nonservice-connected disabilities. In light of the above, the Board finds that the evidence supports a finding that the Veteran's service-connected disabilities render him unable to maintain substantially gainful employment. Therefore, the benefit of the doubt should be given to the Veteran, and a TDIU should be granted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to a total disability rating based on individual unemployability is granted, subject to regulations governing the award of monetary benefits. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs