Citation Nr: 1509147	
Decision Date: 03/03/15    Archive Date: 03/17/15

DOCKET NO.  13-03 246	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a total disability rating for individual unemployability (TDIU). 


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active duty from August 1970 to August 1973. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In January 2012, the RO denied the claim for a TDIU. 

The issue of entitlement to service connection for diabetes mellitus has been raised a February 2015 fully developed claim uploaded to VBMS, but 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. 38 C.F.R. § 19.9(b) (2014). 


FINDING OF FACT

The evidence is at least in equipoise as to whether the Veteran is unable to secure and maintain substantially gainful employment as a result of a combination of his service-connected disabilities. 


CONCLUSION OF LAW

The criteria for a TDIU have been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16, 4.18 (2014). 


REASONS AND BASES FOR FINDING AND CONCLUSION

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. 38 C.F.R. § 3.340 (2014). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that if there are two or more disabilities there is 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) (2014). 

Here, the Veteran meets the initial criteria. He is service-connected for posttraumatic stress disorder (PTSD) at 70 percent disabling and coronary artery disease (CAD), status post bypass graft at 60 percent disabling. His combined total rating has been at 90 percent since September 2010. The Veteran filed his TDIU claim in January 2011. 

Section 4.16(a) also states that marginal employment shall not be considered gainful employment. The ability to work sporadically or just a few hours a day is not substantially gainful employment. Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Further, 38 C.F.R. § 4.18 (2014) states that consideration is to be given to the circumstances of employment in individual claims where "the employment was only occasional, intermittent, tryout or unsuccessful ..." 

Here, the Board finds that a grant of TDIU is warranted because the particular combination of disabilities prevents substantially gainful employment. In arriving at this conclusion, the Board has reviewed the Veteran's entire educational, medical and employment history. The Veteran is a high school graduate. In service, he worked primarily as a helicopter mechanic.  In the 1970s, he applied for VA education benefits for an electrical lineman apprenticeship, community college (which apparently did not work out), and finally a welding course. A review of the file shows the Veteran was an ironworker until 2005; he then worked intermittently in construction and as a stocker for a retail store. These last two positions earned him, as an approximation, slightly less than $6,000 a year. 

The 2011 VA examination report for CAD showed that the Veteran could no longer perform physically demanding work, especially in extreme temperatures. A review of the file shows repeated hospitalizations and treatment for his heart since the early 1990s. This report stated sedentary work was possible, as did the December 2011 VA examination report evaluating PTSD. The PTSD examination showed a Global Assessment of Functioning (GAF) score of 57 and a history of social problems at work which is consistent with other medical and nonmedical records in the file (See October 2010 statements of the Veteran and his wife). The VA psychologist stated the Veteran appeared to "retain the ability to work in an environment that allows him to use well-learned work skills."

The Board finds the Veteran's last two positions may not be considered substantially gainful employment under §§ 4.16(a), 4.18; Moore, 1 Vet. App. at 358. Also, they are not sedentary and the Veteran has no history of a capability that includes any sedentary employment. 

Based on the evidence, the Board will resolve any doubt in the Veteran's favor and grant entitlement to a TDIU. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014). 


ORDER

A TDIU is granted.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs