Citation Nr: 1341063 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 08-14 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from January 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2012 when it was remanded for additional development. The Board notes that in its May 2012 remand, the matters of entitlement to service connection for a bilateral knee disability, a bilateral shoulder disability, a respiratory disorder, anemia, and edema of the lower extremities were remanded as inextricably intertwined with the Veteran's claim for TDIU based on March 2012 correspondence from the Veteran's representative. However, in September 2012 correspondence, the Veteran stated that he was not seeking service connection for those disabilities. Accordingly, they are not addressed herein and are not on appeal. In September 2012 correspondence, the Veteran raised the matter of service connection for sleep apnea, claimed as secondary to his service-connected posttraumatic stress disorder (PTSD) with depressive disorder, not otherwise specified. This matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT It is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a grant of TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to a TDIU rating, which constitutes a complete grant of the benefits sought on appeal as to that claim. Therefore, a discussion of VA's duties to notify and assist is unnecessary regarding the claim. The Board has reviewed all of the evidence in the claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence as appropriate, and the analysis will focus on what the evidence shows, or fails to show, as to the claim. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). The Veteran's service-connected disabilities consist of the following: diabetes mellitus type 2 with erectile impotence, rated 20 percent disabling, effective July 9, 2001; diabetic nephropathy with chronic kidney failure and hypertension, rated 60 percent disabling, effective September 1, 2004; diabetic retinopathy, rated noncompensable, effective September 1, 2004; coronary artery disease with stent placement, rated 30 percent disabling, effective September 1, 2004, and rated 60 percent disabling, effective February 1, 2006; left upper extremity peripheral neuropathy, rated 10 percent disabling, effective February 1, 2006; right upper extremity peripheral neuropathy, rated 10 percent disabling, effective February 1, 2006; left lower extremity peripheral neuropathy, rated 10 percent disabling, effective February 1, 2006; right lower extremity peripheral neuropathy, rated 10 percent disabling, effective February 1, 2006; and PTSD with depressive disorder, not otherwise specified, rated 30 percent disabling, effective May 21, 2012. Thus, the Veteran met the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). What remains to be determined is whether the functional impairment associated with these disabilities is of such nature and severity as to preclude substantially gainful employment. The instant claim for TDIU was raised on February 1, 2006. He indicated he most recently worked from January 2001 to January 2006 for Long Lewis Ford, and that he had 2 years of college education. In an April 2006 MDSI physician services private medical report, it was noted that the Veteran stopped working in January 2006 secondary to fatiguing easily and joint complaints, primarily at the shoulders and knees. The Veteran reported he was unable to perform overhead activities due to decreased ability to raise his shoulders. He also complained of an increase in his back pain for the past 6 to 8 months, relating that any type of activity involving carrying heavy objects or walking for prolonged distances exacerbates his pain. He reported he could not mow his grass or go shopping because he was unable to stand for more than 30 minutes. In an April 2006 Alabama Disability Determination Vocational Rationale Form, it was noted that the Veteran had a high school education. It was found that his maximum work capacity was less than a full sedentary work range. His past work was ruled out due to his limitations. It was also noted that he had not acquired any skills from his past work activity. On July 2006 VA general examination, it was found that the Veteran's diabetes, diabetic nephropathy, hypertension, and diabetic neuropathy would have a mild effect on his employment/functional impairment. His coronary artery disease was found to have a moderate effect on his employment/functional impairment. And his nonservice-connected right knee arthritis was found to have a moderate effect on his employment/functional impairment. The examiner opined that the Veteran's diabetes, diabetic nephropathy, hypertension, and coronary artery disease with stent placement may interfere with strenuous work but that they should not interfere with him being gainfully employed with sedentary work. In his May 2007 notice of disagreement, the Veteran reported that he was offered another job at Long Lewis Ford but that he was unable to perform the job due to the severity of his service-connected disabilities. In a May 2008 VA 28-1902b Form, Counseling Record, Narrative Report, it was found that achievement of the Veteran's vocational goal was not feasible, and that his service-connected disabilities materially contribute to his employability impairment. In addition, it was noted that the Veteran lacks transferable skills that would be compatible with the disabilities/limitations and that are consistent with demonstrated and/or measured interest, aptitudes and abilities. In a June 2008 M. Howell Independent Living Assessment report, it was noted that the Veteran worked for 35 years with US Steele as a laborer and a supervisor, and worked for 5 years at Long Lewis Ford in the service department negotiating labor contracts. A November 2008 VA treatment record noted the Veteran's educational history included an Associate's degree in industrial management. On July 2012 VA general examination, it was noted that the Veteran's diabetes and diabetic nephropathy would have no impact on his ability to work. His coronary artery disease would prevent heavy lifting, and his diabetic neuropathy would limit walking. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), that the evidence supports the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The evidence shows that the Veteran has been retired since January 2006. In addition, his education includes a high school degree and an Associate's degree in industrial management. His post-service work experience shows that he largely worked as a laborer and supervisor for a steel mill, and that he has also worked negotiating labor contracts for an automobile company. Based on the evidence presented in this case, the Board finds the evidence is at least in equipoise regarding whether the functional impairment associated with the Veteran's disabilities is of such nature and severity as to preclude substantially gainful employment. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail). The Board finds significant that VA Vocational Rehabilitation records support the Veteran's claim, finding that his service-connected disabilities materially contribute to his employability impairment. The Board also finds significant private treatment records that found the Veteran's maximum work capacity was less than a full sedentary work range, and that his past work was ruled out due to his limitations. The Board also notes that the Veteran has been recently service-connected for PTSD and depressive disorder, and that the evidence shows that such has effected his energy level and motivation. Thus, given the evidence regarding the severity of the Veteran's service-connected disabilities, and the opinions of record, and the other evidence of record indicating the Veteran's functional limitations due to his service-connected disabilities, the Board finds that the evidence shows he is entitled to an award of a TDIU rating. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Accordingly, the Veteran's appeal of this issue is granted. ORDER Subject to the applicable laws and regulations governing the payment of monetary benefits, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs