Citation Nr: 1604216	
Decision Date: 02/04/16    Archive Date: 02/11/16

DOCKET NO.  11-26 359A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a total disability evaluation based on individual unemployability (TDIU).


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel


INTRODUCTION

The Veteran served on active duty from June 1965 to December 1968 and from June 1975 to May 1995.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). 
A claim for a TDIU is part and parcel of an increased-rating claim, so not a separate claim, when this derivative claim is either expressly alleged or otherwise raised by the record. See, e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009). Because the Veteran raised this derivative TDIU claim in conjunction with his previous increased-rating claim, the Board additionally assumed jurisdiction over this claim.

In August 2012, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. 

The current appeal was processed as part of the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.


FINDINGS OF FACT

1. The Veteran is service-connected for systemic lupus erythematous, currently evaluated as 60 percent disabling. 

2. With resolution of the doubt in the Veteran's favor, the Veteran is unable to secure or maintain substantially gainful employment by reason of his service-connected disability.


CONCLUSION OF LAW

The criteria for a TDIU are met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary.

The Merits of the TDIU Claim

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2).

TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b).

If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a).

If a Veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b).

Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. 

In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). 

In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2015).

In this case, the Veteran is in receipt of a single 60 percent disability rating for his service-connected systemic lupus erythematous. As the Veteran has a single disability rated at 60 percent, the requirements of 38 C.F.R. § 4.16(a) have been met. 

Remaining for resolution is the question of whether there is probative evidence of his unemployability on account of his service-connected disability. See Hodges v. Brown, 5 Vet. App. 375 (1993) and Blackburn v. Brown, 4 Vet. App. 395 (1993) (indicating VA must assess whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU).

Although the Veteran failed to complete and return the VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, review of the record reveals that the Veteran was previously employed as a family physician. At a July 2010 VA examination, the Veteran reported being retired since 2009 due to fatigue associated with his service-connected systemic lupus erythematous. 

In October 2012, the Veteran was afforded a general medical examination for his service-connected systemic lupus erythematous. Overall, the examiner determined that the Veteran's autoimmune disease, i.e., lupus impacts his ability to work. The examiner explained that during flare-ups, the Veteran is unable to walk, crouch, squat, lift, carry anything, or grip anything due to pain. He also has decreased dexterity due to his pain. For each manifestation of the service-connected systemic lupus erythematous, the examiner provided an opinion regarding the impact on his ability to work. With regard to the Veteran's arthralgia of the feet and arthralgia of the ankles, the examiner determined that the foot and ankle disorders impact his ability to work because during flare-ups, the Veteran is unable to walk, crouch, squat, lift, carry anything, or grip anything due to pain. With regard to the Veteran's arthritis of the fingers in both hands, the examiner again determined this impacted his ability to work. He explained that during flare-ups, the Veteran cannot use his hands for gripping or carrying, and his dexterity is impaired due to pain. Similarly, the examiner concluded that the arthralgia of the bilateral hips impacts his ability to work because during flare-ups, the Veteran has difficulty with simple walking due to pain, and cannot crouch, squat, or lift anything. The Veteran was also diagnosed with cutaneous manifestations of collagen-vascular diseases at the examination, but the examiner determined that this skin disability did not impact his ability to work. 

The evidence supports the award of a TDIU. Not only does he meet the scheduler criteria, but the evidence regarding the functional impact of his service-connected disability makes it unlikely that he would be able to obtain or maintain substantially gainful employment that is consistent with his educational level and occupational experience as a family physician. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (The 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). Thus, with resolution of all reasonable doubt in his favor, the Veteran is entitled to a TDIU. 


ORDER

A TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. 



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs