Citation Nr: 1416245 Decision Date: 04/11/14 Archive Date: 04/24/14 DOCKET NO. 12-11 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The Veteran had active service from October 1966 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Fort Harrison, Montana, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2013. A transcript of the proceeding is of record. FINDINGS OF FACT 1. The Veteran is service-connected for diabetes mellitus, rated 20 percent; residuals of a fracture of the right ankle, rated 20 percent; degenerative disc disease of the thoracolumbar spine, rated 20 percent; degenerative joint disease of the cervical spine, rated 20 percent; residuals of a fracture of the right radius, rated 10 percent; right lower extremity radiculopathy, rated 10 percent; left lower extremity radiculopathy, rated 10 percent; ischemic heart disease, rated 10 percent; and cholecystitis and erectile dysfunction, rated 0 percent. He has a combined 80 percent disability rating as of April 29, 2009. 2. The Veteran completed one year of college and his most recent occupation was as a manager with the United States Postal Service. 3. The clinical evidence pertaining to the Veteran's ability to secure and follow substantially gainful employment as a result of his service-connected disabilities is in equipoise. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION It is the established policy of 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 (2013). A finding of total disability is appropriate 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. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2013). A total disability rating based on individual unemployability due to service-connected disability 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Additionally, for the purpose of determining whether a Veteran meets the criteria for assigning a schedular total disability rating based on individual unemployability due to service-connected disability, disabilities resulting from a common etiology or disabilities affecting a single body system (for example, orthopedic, digestive, etc.) are considered to be one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2013). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2013). If all the evidence is in relative equipoise, reasonable doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In his application for benefits, the Veteran reported that he had completed one year of college and had worked as a manager with the United States Postal Service for more than 30 years. He also noted that his job required a lot of travel and he was on his feet, walking long distances, counting delivery points, and sitting for long periods completing paperwork. His service-connected disabilities include diabetes mellitus, rated 20 percent; residuals of a fracture of the right ankle, rated 20 percent; degenerative disc disease of the thoracolumbar spine, rated 20 percent; degenerative joint disease of the cervical spine, rated 20 percent; residuals of a fracture of the right radius, rated 10 percent; right lower extremity radiculopathy, rated 10 percent; left lower extremity radiculopathy, rated 10 percent; ischemic heart disease, rated 10 percent; and cholecystitis and erectile dysfunction, rated 0 percent. He has a combined service-connected disability rating of 80 percent rating as of April 29, 2009. Since his orthopedic disabilities are rated a combined 50 percent, and his total combined rating is 80 percent, he has met the schedular criteria listed in 38 C.F.R. § 4.16(a) for consideration for a total rating. In viewing the clinical reports, and considering the Veteran's education and work experience, the Board finds that the evidence pertaining to the Veteran's ability to secure and follow substantially gainful employment as a result of his service-connected disabilities is in relative equipoise. For example, in cardiac and diabetes mellitus VA examinations in April 2011 and November 2012, the clinicians stated that neither of those disabilities would limit his employability. In contrast, at an April 2011 VA general medical examination, the clinician stated that the Veteran had several conditions that would limit him physically but not mentally. He was limited in his ability to stand, sit, lift, bend, and possibly write or type. He could not sit or stand for more than 30 to 60 minutes and was not able to do much bending. Additionally, because the conditions could affect his sleep, concentration could be a problem. He could lift 5 to 8 pounds at one time, but not repetitively. Furthermore, in the November 2012 addendum, it was noted that the Veteran's peripheral neuropathy would affect his ability to work. He could drive in intervals of about an hour, but would need to get up and stretch, and would have to pace himself with weight-bearing activities. The Board has considered the evidence regarding the Veteran's employability and finds that the evidence is in equipoise as to whether his service-connected disabilities preclude him securing or following a substantially gainful occupation. Consequently, resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is warranted. 38 U.S.C.A. § 5107 (b) (West 2002); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs