Citation Nr: 1340967	
Decision Date: 12/12/13    Archive Date: 12/20/13

DOCKET NO.  10-36 249	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU). 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Nobrega, Associate Counsel 






INTRODUCTION

The Veteran has active service in the United States Navy from May 1968 to January 1972.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, has been reviewed in this case.  


FINDING OF FACT

The evidence of record indicates that the Veteran is unable to find substantially gainful employment as a result of his service-connected disabilities at this time.


CONCLUSION OF LAW

The criteria for total disability based on individual unemployability (TDIU) have been met at this time. 38 U.S.C.A. §§ 1155, 5107 (West 2013); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.25 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.

If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent.  38 C.F.R. § 4.16(a).  For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b).

The Board notes that the Veteran meets the scheduler criteria for TDIU.  The Veteran's service-connected posttraumatic stress disorder (PTSD) is evaluated at 50 percent, diabetes mellitus - type II at 20 percent, tinnitus at 10 percent, peripheral neuropathy - of the left upper extremity at 10 percent,  peripheral neuropathy - of  the right upper extremity at 10 percent, peripheral neuropathy - of  the left lower extremity at 10 percent, and peripheral neuropathy - of  the right lower extremity at 10 percent.  The Veteran is also service-connected for bilateral hearing loss and erectile dysfunction, both are evaluated at non-compensable levels.  

The combined disabilities are evaluated as 80 percent disabling. The 80 percent combined evaluation surpasses the minimum schedular requirement for TDIU.  See 38 C.F.R. § 4.16(a).  

Additionally, in an April 2013 submission from a VA psychiatrist at the Kansas City, Missouri VA Medical Center (VAMC), who has treated the Veteran since September 2009, the VA psychiatrist deemed the Veteran to be unemployable. The psychiatrist stated, "[d]ue to the severity of Mr. [the Veteran] [sic] PTSD symptoms and his multiple medical problems, in my opinion, he would be unemployable in any capacity.  There is also greater chance than not, that Mr. [the Veteran] would ever be employable again in the future."

Accordingly, the Board concedes that the Veteran's combined service-connected disabilities, evaluated as 80 percent disabling, prevents the Veteran from engaging in substantially gainful employment.  TDIU is granted

ORDER

Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU) is granted. 


____________________________________________
JOHN J. CROWLEY 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs