Citation Nr: 1343013 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 11-02 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a total disability evaluation based upon individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to June 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. FINDING OF FACT The evidence of record indicates that the Veteran is likely unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for the assignment of TDIU due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for entitlement to a TDIU. Legal Criteria The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2013) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Analysis The Veteran is currently service-connected for the following disabilities: radiculopathy of the right lower extremity (sciatic nerve) associated with diffuse bone arthropathy and focal disc protrusion L4-S1, currently evaluated as 40 percent disabling; post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling; and diffuse bone arthropathy and focal disc protrusion l4-S1, currently evaluated as 20 percent disabling. The combined disability rating of all the service-connected disabilities is 70 percent, and at least one of his disabilities is rated as 40 percent disabling. Therefore, he meets the schedular criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a). The record reflects that the shows that the Veteran is currently approximately 32 years old, and that he completed high school (twelfth grade). He has not had any formal education past high school. The Veteran reported that he is a certified hydraulic specialist and a certified diesel mechanic. He also reported that he used to build equipment for the mines and used to work as a welder. He reported on examination in 2010 that he was working part-time at Lowe's, about 20 hours per week. The only other work experience he has reported is in fast food. See April 2011 VA Form 9. There is no indication in the record as to whether the Veteran is currently employed. There are several statements of record from the Veteran, his family members, and former co-workers of his, indicating that the Veteran's service-connected disabilities have made it very difficult for him to work. The Veteran was afforded a VA examination in October 2010, to evaluate his service-connected PTSD. The examiner noted that the Veteran's symptoms included daily intrusive thoughts, nightmares, thoughts of hurting his wife, hypervigilance from loud sounds, anxiety, nervousness, depression, and problems with his mood due to chronic pain from his orthopedic disabilities, which the Board notes are also service-connected. Based on his evaluation of the Veteran, the examiner opined that the impairment from the Veteran's PTSD had a moderate to severe impact on physical and sedentary employment. The Veteran was afforded a VA examination to determine the extent of functional impairment from the Veteran's service-connected disabilities and their impact on physical and sedentary employment. The examiner concluded that the Veteran's disabilities had a definite impact on his ability to continue his employment in general labor, due to chronic pain, neuropathy, and limitation of movement, and that he was able to sit, stand and walk with limitation for periods of time less than 1/2 hour. The examiner also concluded that the Veteran could be employed in a sedentary job, but only if he was allowed to take stretch breaks and standing breaks for 5 minutes at a time, approximately every half an hour to an hour. Based on the foregoing, and affording the Veteran the benefit of the doubt, the Board finds that the competent medical evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. The evidence of record indicates that the Veteran previously worked as a welder, but he has not worked in that profession since 2008 or 2009, due to limitations imposed on him as a result of his service-connected disabilities. Furthermore, he has several service-connected disabilities, which together, give him a combined rating of 70 percent, which is indicative of significant impairment of health. In reaching this determination, the Board acknowledges the November 2010's examiner's opinion that the Veteran's service-connected disabilities would not be a barrier to sedentary employment so long as certain accommodations were made on the Veteran's behalf. In this regard, the Board notes that while the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). There is no indication in the evidence of record that the Veteran has any experience or training to perform sedentary work. The Veteran only has a high school education and was training in hydraulics and diesel mechanics, and has only worked in maintenance fields (welder, builder, fast food). There is no indication in the record that he has worked or received training in any other field. Furthermore, as he has reported, impairment from his PTSD, including concentration difficulties, make it highly unlikely that he would be able to learn new job skills that would enable him to transition into a different career at this time in his life. 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 critical issue is whether the 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 this case, the evidence reflects that the Veteran's service-connected disabilities, including his PTSD, present significant obstacles with respect to the Veteran's employability, essentially rendering him unemployable as defined for VA purposes. There can be no doubt that further inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In summary, as it appears that the Veteran's service-connected PTSD, radiculopathy of the right lower extremity, and diffuse bone arthropathy and focal disc protrusion L4-S1, preclude him from securing or maintaining substantially gainful employment, the criteria for entitlement to a TDIU have been met. Accordingly, the TDIU claim is granted. ORDER The claim for a TDIU is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs