Citation Nr: 1753726 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 10-34 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisolm, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran had active service from May 1982 to May 1998. He also had 27 years and 29 days of total prior inactive service. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In March 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In a December 2015 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated a September 2014 decision by the Board, which denied the Veteran's claims for increased ratings for his bilateral foot disability, and remanded the appeal back to the Board for readjudication. In vacating the Board's September 2014 decision, the Court determined, inter alia, that the Board erred in failing to adjudicate a raised claim of entitlement to TDIU. See December 2015 Memorandum Decision. In October 2016, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. As alluded to above, this case has a long and somewhat complicated procedural history. For purposes of deciding the current claim, the Board points out that the bilateral foot disability rating issues, which form the basis for the claim of TDIU, have been essentially pending since the initial grant of service connection, which was effective August 10, 2000, that date on which the Veteran's claim for service connection for disability of both "legs" was received. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDING OF FACT As of August 10, 2000, the Veteran was unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for the assignment of TDIU due to service-connected disabilities have been met as of August 10, 2000. 38 U.S.C §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for entitlement to a TDIU. Legal Criteria The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a veteran's service-connected disability or disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2017). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Analysis The Veteran is currently service connected for the following disabilities: pes cavus, plantar fasciitis and calcaneal spurs, right foot, evaluated as 30 percent disabling from August 10, 2000; pes cavus, plantar fasciitis and calcaneal spurs, left foot, evaluated as 30 percent disabling as of August 10, 2000; degenerative joint disease, left hip, evaluated as 20 percent disabling as of August 10, 2000; tinnitus, evaluated as 10 percent disabling as of August 10, 2000; and hearing loss, evaluated as 0 percent disabling from August 10, 2000. He has a combined rating of 70 percent, and has met the criteria for a TDIU since August 10, 2000. 38 C.F.R. § 4.16(a). The record shows that the Veteran is currently 79 years old, and that he completed high school prior to military service. He also earned a 4-year college degree in the military. After leaving the military, he went to work part-time as a merchandise broker. In his claim for TDIU, filed in April 2016, the Veteran reported that he was unable to work due to complications from his bilateral foot disabilities, his left hip disability, and his hearing loss and tinnitus. He reported that his disabilities affected his full-time employment in 2000, and that he became too disabled to work and stopped working as a food broker in 2004. See April 2016 Veteran's Application for Increased Compensation Based on Unemployability, VA Form 21-8940. Employment information (Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192)) from the Veteran's last employer was not able to be obtained. See July 2017 statement from the Veteran's attorney. However, information from the Social Security Administration (SSA) shows that the Veteran has been receiving retirement benefits since June 2000. A March 2004 VA examiner concluded that it was more than likely that the Veteran's claim that his bilateral foot disability had progressed during the previous 3-4 years, considerably disabling him to the point that he was not able to walk more than a block and a half or stand up on his feet longer than 10 minutes, was believable, based on his significant foot deformity. See March 2004 VA examination report. An October 2013 VA examiner opined that the Veteran was not capable of employment that involved prolonged walking and/or standing. In an August 2016 Independent Medical Examination Report, D. M., Jr., M. D., J. D., opined, after an interview of the Veteran and review of his clinical history, but without a physical evaluation, that it was at least as likely as not that the Veteran was unable to secure and follow a substantially gainful occupation as a result of his service-connected bilateral pes cavus with plantar fasciitis and bilateral calcaneal spurs since at least 2000. Dr. D. M. noted that the Veteran's bilateral plantar fasciitis symptoms limited him to part-time employment as of 2000, and prevented him from even working a maximum of 15 hours per week, i.e. part-time, as of 2004. He noted further that the Veteran has been and continues to be extremely limited in his ability to stand and walk because of the severity of his foot pain, regardless of his other diagnoses of peripheral neuropathy, and he has been experiencing bilateral foot pain even at rest since approximately 2000. According to Dr. D. M., it was around the year 2000 when the Veteran was no longer able to work due to his bilateral foot pain. See August 2016 report, prepared by D. M., Jr., M. D., J. D. A VA examiner opined that the Veteran is not able to perform employment that involves prolonged standing and walking. Furthermore, a private physician opined that the Veteran is not able to perform any type of employment, which would include sedentary occupations. Based on this evidence, and affording the Veteran the benefit of the doubt, the Board finds that the competent medical evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. The evidence of record indicates that the Veteran previously worked as a food broker, which is a type of independent sales agent that works in negotiating sales for food producers and manufacturers, for approximately five years. Prior to that, he worked as a salesman for many years. However, he has not worked since 2004. Furthermore, he has several service-connected disabilities, which together, give him a combined rating of 70 percent, which is indicative of significant impairment of health. With regard to the Veteran's ability to perform sedentary work, the Board notes that the Veteran worked in a profession (salesman) for years that was not completely sedentary. In fact, it involved an extensive amount of walking and lifting. See August 2016 Independent Medical Examination Report from Dr. D. M. There is no indication in the record that he has worked or received training in any other field. 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 critical 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 this case, the evidence reflects that the Veteran's numerous service-connected disabilities, noted above, present significant obstacles with respect to the Veteran's employability, essentially rendering him unemployable as defined for VA purposes. There can be no doubt that further inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In summary, as it appears that the Veteran's service-connected disabilities have precluded him from securing or maintaining substantially gainful employment since August 10, 2000, the criteria for entitlement to a TDIU have been met since that time. Accordingly, the TDIU claim is granted from August 10, 2000, the effective date of the grants of service connection for bilateral foot disabilities, the claims underlying the raised issue of TDIU. ORDER Entitlement to TDIU, effective August 10, 2000, is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs