Citation Nr: 1509180	
Decision Date: 03/03/15    Archive Date: 03/17/15

DOCKET NO.  14-43 283	)	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 due to service-connected disabilities (TDIU).


REPRESENTATION

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


ATTORNEY FOR THE BOARD

A. Dixon, Associate Counsel






INTRODUCTION

The Veteran had active service from July 1948 to April 1952.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The appeal was processed using the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's service-connected disabilities prevent him from obtaining or maintaining a substantially gainful occupation.


CONCLUSION OF LAW

The criteria for the assignment of TDIU due to service-connected disabilities have been met.  38 U.S.C.A. § 1155 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability 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).

The Veteran is service-connected for: posttraumatic stress disorder, currently rated at 50 percent; cold injury neuropathy in the left lower extremity, currently rated at 30 percent; cold injury neuropathy in the right lower extremity, currently rated at 20 percent; cold injury neuropathy in the left upper extremity, currently rated at 10 percent; cold injury neuropathy in the right upper extremity, currently rated at 10 percent; bilateral hearing loss, currently rated at 10 percent; and tinnitus, currently rated at 10 percent.  Therefore, the Veteran meets the percentage requirements for eligibility to receive TDIU benefits.  38 C.F.R. § 4.16(a). 

Consequently, the remaining question is whether his service-connected disabilities preclude substantially gainful employment.  The ability to work sporadically or just a few hours a day is not considered to be substantially gainful employment.  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  Additionally, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by non-service-connected disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.341, 4.16(a), 4.19 (2014). 

The evidence of record shows that the Veteran attended one year of high school but did not graduate.  See December 2011 VA examination; VA Form 21-8940 dated July 17, 2013.  Following separation from service, he did factory work, cattle farming, and then truck driving until 1989.  See December 2011 VA examination.  He then worked as a security guard at a college until he retired in 1994.  Id.; VA Form 21-8940 dated July 17, 2013.  The Veteran currently works approximately 17 days per month as a school crossing guard.  December 2011 VA examination.  Because his service-connected upper and lower extremity neuropathy causes problems with temperatures below 60 degrees, he is only able to work for an hour in the morning, and thus only $7.25 per day.  Id.  The Veteran has also stated that due to the residuals of his cold-related injuries, he is unable to hold items for any length of time.  VA Form 21-8940 dated July 17, 2013.

Based on the foregoing, the Board finds that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation.  The Veteran has very little formal education, and has not received any other education or training beyond his prior work experience.  As to his prior work experience, the Board acknowledges that it consisted primarily of physical labor that required little specialized skill or expertise.  Furthermore, the evidence shows that the Veteran's service-connected disabilities have an impact on his ability to perform physical activities, to the extent that they would require extended exposure to cold weather or ability to maintain grip on any item.  

Notably, the Veteran's current employment as a school crossing guard does not meet the definition of substantially gainful employment for purposes of 38 C.F.R. § 4.16(a).  His wages of $7.25 per day give him an annual income far below $10,788, the amount established as the poverty threshold for one person over the age of 65 in 2011 (the year in which the Veteran's claim for TDIU was initiated).  Faust v. West, 13 Vet. App. 342, 355 (2000); see also U.S. Department of Commerce, Bureau of the Census, Poverty Thresholds: 2011 (last modified January 26, 2015) (http://www.census.gov/hhes/poverty/data/threshld).

Accordingly, given the Veteran's lack of education and special training, the impact of his service-connected disabilities, and his current marginal employment, the Board finds that the Veteran is unable to secure and maintain substantially gainful employment due to his service-connected disabilities.


ORDER

Entitlement to a total disability evaluation based upon individual unemployability is granted, subject to the laws and regulations governing the award of monetary benefits.

____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs