Citation Nr: 1751932 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 15-33 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her mother ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to September 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in November 2013 by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement (NOD) was received in June 2014, a statement of the case was issued in August 2015, and a substantive appeal was timely received in September 2015. In September 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's service-connected disability of post-operative residuals subtotal gastrectomy precludes her from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5110(a), (b)(2) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. As the Board's decision to grant the Veteran's claim is completely favorable, no further discussion of the VCAA requirements is necessary. Rules and Regulations Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran 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 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). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). Factual Background and Analysis The Veteran contends that she cannot maintain a job because of her stomach disability, specifically her service-connected post-operative residuals subtotal gastrectomy. The Veteran claims that her disability causes her to have unexpected episodes of diarrhea. She argues that this makes it so that she must always be near a bathroom and that she does not have any stability in making and keeping plans. The Veteran states that when she worked as a teacher, she would not eat until she got home just so she would not have an episode while at work and have to leave the children unattended. She states that this caused her to become weak, and she ultimately had to leave her job due to her health. After careful consideration of the entire record, with reasonable doubt in the Veteran's favor, the Board finds that the Veteran is unable to obtain and maintain substantially gainful employment consistent with her education and occupational experience because of her service-connected stomach disability. The record shows that after service, the Veteran worked as a mail carrier for the post office until 1990. Afterwards, the Veteran worked as a teacher's aide until May 1993. See VA Form 21-8940. The Veteran has a college education, with a degree in business and education. The Veteran contends that she has not worked a substantially gainful occupation since 1993. Additionally, she claims that her prior employer (post office) suggested she should medically retire due to her stomach condition. See September 2017 Board hearing. At a June 1998 VA PTSD examination, the examiner noted that the Veteran could not continue working as a teacher because she was unreliable secondary to her bowel problems. VA treatment records from September 2002 indicated that the Veteran does not work secondary to her disabilities. In September 2013, the Veteran was provided with a VA examination regarding her stomach and duodenal conditions, with the examiner noting that her conditions do not impact her ability to work. At the Board hearing in September 2017, the Veteran testified that she had to leave her job as a teacher because she was missing too many days of work and it was not good for her students. She stated that if she ate something, she would have to worry about her dumping syndrome. As it was unexpected when and how it would occur, she did not want to be around people. She described the condition as severe. The Veteran's mother also testified as to the unpredictability of her condition, noting that she can have one type of food one day with no reaction and the same type of food on another day would cause her to have gurgling sounds from her stomach and then an uncontrollable episode. The Veteran stated that she wore Depends to work and just one episode would cost her the entire day to take care of. Based on the evidence of record, the Board finds that the Veteran has consistently reported that she unable to work due to her stomach disability. The severe and unpredictable nature of the Veteran's disease makes it difficult for her to retain substantially gainful employment in any occupational setting. Therefore, resolving all reasonable doubt in the Veteran's favor, given the severity of the Veteran's stomach disability in conjunction with her education and work history, the Board finds that her service-connected disability of post-operative residuals subtotal gastrectomy precludes her from obtaining and maintaining substantially gainful employment. See Moore v. Lewinski, 1 Vet. App. 356, 359 (1991) ("[A] mere theoretical ability to engage in substantial gainful employment is not sufficient... The test is whether a particular job is realistically within the physical and mental capabilities of claimant."). Accordingly, the Board finds that entitlement to a TDIU is warranted. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs