Citation Nr: 1752676	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  17-31 753	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

S. Mussey, Associate Counsel






INTRODUCTION

The Veteran served on active duty from July 1981 to July 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

The Veteran requested a hearing before a Veterans Law Judge. See June 16, 2017 VA Form 9. The Veteran and his representative later withdrew that request. See June 27, 2017 E-mail Correspondence from Veteran. Accordingly, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. 20.704(e) (2017).

In June 2016, the Veteran's representative indicated that the Veteran's cellulitis was potentially related to a service-connected knee disability. However, this matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Veteran and his representative are advised that effective March 24, 2015, VA requires claims to be submitted on a standard application form prescribed by the Secretary. See 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). The matter is REFERRED to the AOJ as an intent to file a claim. See 38 C.F.R. § 3.155(b).

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

Resolving reasonable doubt in his favor, throughout the entire appellate period, the Veteran's service-connected disabilities have been sufficiently incapacitating as to prevent him from obtaining or maintaining substantially gainful employment.




CONCLUSION OF LAW

The criteria for entitlement to a TDIU rating have been met throughout the entire appellate period. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.16, 4.18, 4.19 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2017).

The Board notes that entitlement to a TDIU is being granted for the entire appellate period. This award thus represents a complete grant of the benefits sought on appeal as concerning this claim. Therefore, any deficiency in VA's compliance with the duty to notify and assist is nonprejudicial and any further discussion of VA's duties as concerning this claim is not necessary. 38 C.F.R. § 20.1102 (2017).

II. Total Disability Rating based on Individual Unemployability

The Veteran asserted that he is unemployable, primarily due to his service-connected knee disabilities and PTSD. July 2016 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940).

Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to a TDIU rating. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id.

During the time period under review, the Veteran's PTSD was rated as 50 percent disabling, right knee disability as 20 percent disabling, left knee, degenerative arthritis as 20 percent disabling, right knee, degenerative arthritis as 10 percent disabling, tinnitus as 10 percent disabling, left knee instability as 10 percent disabling, and loss of left index finger was continued as 10 percent disabling. The combined rating from October 30, 2015 forward was 80 percent. Accordingly, the criteria for schedular consideration of a TDIU rating are satisfied.

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id.

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be 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. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id.

As the Veteran satisfies the criteria for schedular consideration for a TDIU rating, the only remaining consideration is whether his service-connected disabilites render him unable to obtain and maintain substantially gainful employment. In this regard, the Board has considered the Veteran's educational and employment background. The evidence reflects that the Veteran earned an Associate's degree in 2001. The Veteran began, but did not complete coursework towards a Bachelor's degree.

The Veteran began work as an over-the-road driver in 1987. See June 2016 Traumatic Brain Injury Disability Benefits Questionnaire (DBQ). The Veteran drove local routes or worked as a "yard switcher" from 1991-2005. See June 2016 PTSD DBQ. The Veteran then worked at G.M. in 2005, but was terminated.

The Veteran returned to work as an over-the-road driver, but ended "long haul runs" and began driving shorter trips in either March or April of 2016. At that time, the Veteran was self-employed and contracted through N.L., Inc. The Veteran became disabled and unable to perform his duties as an over-the-road driver on May 22, 2016, and therefore his lease agreement was terminated. See September 20, 2016 Correspondence from N.L., Inc. The lease agreement was terminated because the Veteran's pain medication disqualified him from driving under federal guidelines for commercial drivers and his knee disabilities and PTSD prevented him from successfully performing his duties as an over-the-road driver. See June 9, 2017 Correspondence from N.L., Inc. While the June 2016 PTSD DBQ noted that the Veteran was still driving local routes at that time, the Veteran's representative clarified that he stopped driving short routes in May 22, 2016. See June 2017 Statement of Accredited Representative in Appealed Case. 

The Board carefully considered the Veteran's contentions, his education and employment background, and the limitations imposed on him as a consequence of his service-connected disabilities. Resolving all doubt in the Veteran's favor, and considering the evidence indicating that the Veteran has been unable to obtain or maintain substantially gainful employment since being terminated, and in the absence of any evidence that directly contradicts this conclusion, the Board finds that a TDIU rating is warranted for the entire appellate period. Accordingly, a TDIU rating is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to a TDIU rating is granted for the entire appellate period, subject to the laws and regulations governing payment of VA compensation.



____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs