Citation Nr: 1757049 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-38 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Stephen Bennett, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1956 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In July 2017, a videoconference hearing was held and the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file. The issue of entitlement to an increased rating for hearing loss was raised by the Veteran's representative at the July 2017 hearing. This matter was not appealed in the September 2014 Appeal to the Board. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 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). FINDINGS OF FACT 1. The Veteran is service-connected with several disabilities collectively rated at 70 percent, including left lower extremity neuropathy rated at 40 percent. 2. The Veteran's service-connected disabilities preclude him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable Law Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Analysis The Veteran meets the schedular rating requirements for a TDIU. See 38 C.F.R. § 4.16(a), as he has two or more disabilities, with at least one disability ratable at 40 percent (i.e., left lower extremity neuropathy). The remaining (and dispositive) question is whether the service-connected disabilities render the Veteran incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience. The Veteran has contended that his service-connected disabilities prevent him from securing or following substantially gainful employment, and that he became too disabled to work around August 2011. See October 2011 Veteran's Application for Increased Compensation Based on Unemployability. The Veteran completed 11th grade and has no other formal education or training. He worked as a truck driver for approximately 50 years. See July 2017 Hearing Testimony, p. 17. The Veteran maintains that he left this job as a truck driver because his service-connected disabilities impacted his ability to work. In connection with his TDIU claim, the Veteran underwent a VA examination in October 2011 for various service-connected conditions. The examiner indicated that the Veteran will likely experience difficulty in the presence of background noise or when he cannot see a speaker's face due to his hearing disabilities. The Veteran's eye disabilities render him unable to drive but the examiner offered that the Veteran could perform work not requiring depth perception such as desk work. Moreover, a vocational consultant submitted a statement in October 2012. In the statement, the consultant indicated that the Veteran is incapable of sustaining employment in an unskilled competitive environment on a consistent basis due, in part, to physical complications resulting from left lower extremity neuropathy and left lateral palsy. The consultant further noted the Veteran's past work experience as a log truck driver, loader operator, and semi-truck driver and suggested that the Veteran has no transferable skills to light or sedentary work classifications. At the July 2017 hearing, the Veteran indicated that the pain from his neuropathy impacts his ability to work because the pain worsens when he becomes more physically active. The Veteran also indicated that he would be unable to drive a truck for long distances due to his neuropathy and migraine headaches which occur approximately two to three times per week. He further noted difficulty going from sitting to standing. The Veteran's spouse noted that the Veteran has no peripheral vision in his left eye which results in hazardous driving when he needs to look in the left mirror because he must turn his whole head. The Board finds that the collective impact of the Veteran's service-connected disabilities makes it impossible for the Veteran to secure and maintain substantially gainful employment. The Veteran's employment history consists solely of work as a truck driver. As noted by the October 2011 VA examiner, the Veteran's eye disabilities render him unable to perform work that requires depth perception, such as truck driving. The examiner opined that the Veteran should be able to perform some types of work, such as desk work; however, the Veteran has no specialized education, training or experience that suggests he may be able to secure gainful employment outside of work as a truck driver. Moreover, some of the symptoms that impact his ability to perform work as a truck driver, such as pain from sitting for long periods of time, difficulty going from sitting to standing, and frequent migraine headaches, would also apply to other types of work. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to maintain a substantially gainful occupation as a result of his service-connected disabilities, and an award of TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a TDIU is granted. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs