Citation Nr: 1720122 Decision Date: 06/06/17 Archive Date: 06/21/17 DOCKET NO. 10-20 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1955 to October 1956 in the United States Army. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of procedural background, this claim was before the Board in September 2013, January 2014, and July 2015. The claim is again before the Board for further appellate consideration. The Veteran requested a hearing before the Board at the local RO in his April 2010 substantive appeal, via a VA Form 9. However, the Veteran withdrew his hearing request in a December 2010 statement. The Veteran's representative has filed informal hearing presentations on his behalf in July 2015 and May 2017. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT With resolution of any doubt in his favor, the Veteran's service-connected disability precludes him from obtaining and maintaining both physical and sedentary employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Because the benefit is being granted in full, any development or notification actions under the Veterans Claims Assistance Act of 2000 (VCAA) do not avail the Veteran in pursuit of a TDIU. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. As such, a discussion of whether VA has met its statutory and regulatory duties to notify and assist the Veteran with development of his claim is not necessary. II. Pertinent TDIU Law and Regulations and Analysis The Veteran maintains he is unemployable due to his service-connected disabilities. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340 (2016). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.34. In other words, VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be 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). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU request, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability.) In this case, service connection is in effect for vasodepressor syncope for a total disability rating of 30 percent, effective October 29, 2007. The Veteran therefore does not meet the objective, minimum percentage requirements for a TDIU, as set forth in 38 C.F.R. § 4.16 (a). Nevertheless, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). The Board remanded the claim for referral of extraschedular TDIU consideration in July 2015. The AOJ's Decision Review Officer submitted a referral to the Director of C&P Service who reviewed the evidence in April 2016, and issued a memorandum that weighed against the claim. Nonetheless, the Director's decision is not considered binding on the Board. Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Cf. Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Based on the information the Veteran reported in VA treatment records, he was employed for 44 years at a shipyard, including 25 years as a welder and 19 years as a welding supervisor. The Veteran reported that his last employment ended in October 2002. The November 2013 VA examiner opined the Veteran was able to keep his welding job "until he retired," indicating that the Veteran chose to voluntarily retire. In the September 2014 VA examination, the Veteran clarified that he was forced to retire after he had a syncopal episode and lost consciousness while on scaffolding at work. The Veteran is competent to report the circumstances surrounding his retirement, and the Board finds no reason to doubt his credibility. The Veteran's last employer verified that the Veteran's last day of pay was October 1, 2002, and that he did not return after a leave of absence. Thus, the Board assigns great probative weight to this evidence when considering how his service-connected disability affects his ability to obtain and maintain substantially gainful employment. The Board further finds that the Veteran has not been substantially or gainfully employed since October 1, 2002, which precedes his claim for a TDIU. The record shows that the Veteran has a high school education and no additional training or experience. In VA treatment records dated August 2005, the Veteran reported having three syncopal episodes in the previous six months. One episode in 2005 occurred when he was sitting on his porch shelling beans. In May 2008 VA treatment records, the Veteran reported losing consciousness with fecal incontinence and shaking. The Veteran also reports the short or no warning before experiencing a syncopal episode is what makes managing the disability difficult. VA treatment records dated September 2010 further report the Veteran had an episode in April 2010. The Veteran experienced the symptoms of an impending syncopal episode and attempted to lie down under a tree. Even with some warning, the Veteran was unable to lie down in time and fell when he lost consciousness. He reports experiencing two more syncopal episodes in the following two days. The Veteran reports in January 2011 VA treatment records that he had a syncopal episode when he was standing and singing in his church choir. The Veteran often describes experiencing "jerky" seizure like movements during and after his syncopal episodes, and in fact, describes disability as seizures. In VA treatment records dated January 2012, the Veteran reported dizziness, diaphoresis, and having a syncopal episode triggered by coughing. The Veteran was evaluated by a VA neurologist in September 2012 for bimanual tremors. The Veteran reports that these tremors were interfering with his ability to use utensils or drink out of a cup, and the syncopal episodes aggravated the intensity of these tremors. The Veteran reports in VA treatment records in January 2013 that he had a syncopal episode a few weeks earlier while standing in line at a flea market. The Veteran reports that he experienced warning signs of an impending syncopal episode, but was unable to lie down before he lost consciousness and bruised his arm. In October 2013, the Veteran reported experiencing an episode while sitting on a stool and weeding his yard. He was able to lie down on his front porch before losing consciousness. The Veteran reported having a second episode the following day while weeding, but he did not experience the usual warning signs of an impending syncopal episode. The Veteran reports that he has reduced energy for 24 hours after a syncopal episode. The Veteran reported in May 2014 of having more frequent episodes when bending down or doing any yardwork, during which he reports experiencing fecal incontinence. In a November 2013 VA examination report, the examiner noted that the Veteran has Stokes-Adams Seizures with his syncopal episodes. The VA examiner opined that although the Veteran cannot be employed in a strenuous job, as stress triggers his syncopal episodes, the Veteran could still obtain and maintain light duty or sedentary employment. As support for his conclusion, the examiner notes that the Veteran claims his condition has not worsened since service. However the record reflects that the RO increased the Veteran's rating from 10 percent to 30 percent effective October 2007, indicating a worsening, which makes this particular rationale factually inconsistent with the record. Additionally, the November 2013 VA examiner noted that the Veteran was able to hide his condition from his employer for 44 year and that the Veteran retired from work at age 65. As discussed above, the Veteran reports he was forced to retire after having a syncopal episode on scaffolding. As indicated, the Board finds that the Veteran's statements are credible regarding the circumstances of his retirement, and additionally finds that the Veteran retired because of the limitations his service connected disability created. The Veteran was afforded a second VA examination in September 2014, in which the VA examiner determined that the Veteran could not obtain and maintain employment where he would be hot, overexert himself, climb scaffolding or ladders, or change positions abruptly. The VA examiner also notes that the Veteran requires employment that allows the Veteran to lie prone on the ground with little or no notice to those around him to avoid losing consciousness and to avoid hurting himself or others. The examiner opines that the Veteran can prevent loss of consciousness sometimes by lying down when he experiences the warning symptoms of an impending syncopal episode; however, the Veteran reports circumstances where was unable to lie down in time to prevent losing consciousness. The Board therefore assigns low probative weight to the examiner's opinion regarding the Veteran's ability to obtain and maintain substantial employment. The examiner's ultimate conclusions are internally inconsistent when considering his prescribed limitations on the Veteran's potential circumstances of employment and fails to consider the specific situations in which the Veteran has experienced a syncopal episode, including coughing, sitting, fishing, and other sedentary activities. Further, whether a Veteran may obtain and maintain substantial employment is a legal determination, and not a medical one. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran states that potential employers will not hire him because he is a liability. In support of his claim, he submitted an undated letter in May 2008 from a prospective employer who reported they would not hire him because of his service-connected disability. The Veteran reported in his October 2008 Notice of Disagreement that employers would not hire him because unpredictable loss of consciousness and falling creates a risk of injury to himself and others. The Veteran also indicates that his syncopal episodes are becoming more frequent in January 2015 VA treatment records. As alluded to, because the appeal for a TDIU under section 4.16(b) has already been reviewed and denied by the Director of the Compensation Service, the Board may consider, de novo, whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16 (b), which provides 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. Based on the evidence of record, both lay and medical, and resolving all doubt in the Veteran's favor, the Board concludes that a TDIU is warranted. The evidence clearly demonstrates that the Veteran's service-connected vasodepressor syncope preclude all forms of physical employment. Thus, the dispositive issue then becomes whether all types of sedentary work are precluded on account of his service-connected disabilities. While acknowledging the Director's opinion that the Veteran's service-connected disabilities do not preclude all forms of employment, it is unclear whether the Director considered the Veteran's work and education history. Indeed, the record reflects that the Veteran has limited education, having only completed high school. Additionally, all of the Veteran's post-service work history has been as a welder and welding supervisor at a shipyard, which necessarily encompassed heavy lifting, climbing, balancing on scaffolding, being outside when it is hot, and handling high heat welding equipment while covered from head to foot in protective gear. Further, the evidence shows that the Veteran experiences syncopal episodes while sitting and doing sedentary tasks, such as coughing, fishing, shelling beans, bending over, and weeding his yard. The Veteran also must lie down in an attempt to attempt to avoid losing consciousness with short or no notice. Given this evidence, the Board finds that the Veteran's service-connected disabilities preclude both physical and sedentary employment. Accordingly, the Board finds that, when evaluating the entirety of the Veteran's service-connected disability picture, along with his education and work experience, the evidence of record supports a direct causal relationship between his service-connected disabilities and his unemployability. On this basis, the criteria to establish entitlement to a TDIU are met. Accordingly, the claim will be granted. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs