Citation Nr: 1752497 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 10-22 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A.Spigelman, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from June 1964 to June 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction over the Veteran's case was subsequently transferred to the VA RO in Waco, Texas. In connection with this appeal, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge at the RO in August 2017. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran has been in receipt of a combined rating of at least 70 percent, with one or more disabilities combinable to a 40 percent rating, for the entire period on appeal. 2. The Veteran is unable to obtain and maintain substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has asserted that he is unable to work as a result of his service-connected disabilities. At the outset, the Board notes that the Veteran has been in receipt of a schedular 100 percent rating since June 22, 2012, for his service-connected prostate cancer. However, prior to that date, the Veteran has been in receipt of a combined rating of at least 70 percent, with disabilities combinable to at least 40 percent. Therefore, the Veteran meets the schedular criteria for assignment of a TDIU. The Veteran has reported that he was last able to work full-time in May 2006, at which time he because too disabled to work as a result of his service-connected diabetes and associated complications. He reported that he took an early retirement in May 2006, but would have kept working if not for his service-connected disabilities. Prior to his retirement, the Veteran worked for the Federal Aviation Administration (FAA) as an equipment technician. The Veteran reported that he has completed one year of college. In May 2012, the Veteran was afforded VA peripheral nerve examination. At that time, the VA examiner found that the Veteran's peripheral neuropathy caused significant impairment in the Veteran's ability to work. In this regard, the examiner noted that the Veteran had significant pain, weakness, paresthesias, and numbness in both his upper and lower extremities. As a result, the Veteran would be unable to perform the duties of his prior job with the FAA as that job required use of tools, extensive walking, extensive standing, extensive climbing, and operation in confined spaces. The examiner also noted that the Veteran would be limited in any occupation that required repetitive use of the hands or extensive lifting, gripping, or carrying. The examiner concluded that the Veteran may be capable of sedentary employment, but would probably require vocational retraining to accomplish such. In May 2012, the Veteran was also afforded a VA cardiac examination. At that time, interview based METs testing showed the Veteran to experience dyspnea ad fatigue and his METs level was consistent with the ability to perform light yard work (weeding), mowing a lawn (with a power mower), and brisk walking. The Veteran would be unable to perform sustained activity requiring higher levels of exertion. Of record are statements made from the Veteran and his spouse in which it was reported that when the Veteran retired from the FAA, he had heart problems that progressed and prevented him from working full time. The Veteran reported that he would have worked many more years if he was able to do so. At his August 2017 hearing, the Veteran testified that his job with the FAA involved checking air traffic control towers and required him to do a lot of walking. The Veteran reported that his service-connected diabetes, neuropathy, and heart disability caused him to have trouble walking long distances and walking on flat ground. The Veteran reported that he stumbled and fell all the time as a result of his service-connected neuropathy. The Veteran reiterated that if he didn't have his service-connected disabilities, he would not have retired in May 2006. The Veteran's wife reported that the Veteran had a lot of pain, that his pain evolved into numbness and that his overall condition had gradually worsened. The Board finds that the Veteran's service-connected disabilities present an impairment that precludes him from obtaining and maintaining substantially gainful employment consistent with his education and industrial experience. The Board acknowledges that the May 2012 VA examiner found that the Veteran may be able to perform sedentary employment. However, the examiner also noted that such a feat would require vocational retraining. Further, just because the Veteran may be able to work at some point in the future, does not preclude a finding that he is unemployable now. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to a TDIU is warranted. 38 U.S.C. §5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs