Citation Nr: 1801191 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-35 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from July 1976 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2016. A transcript of the hearing has been associated with the claims file. FINDING OF FACT Throughout the period on appeal, the Veteran has been incapable of obtaining and maintaining substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW Throughout the period on appeal, the criteria for entitlement to a TDIU are 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 seeks a total disability rating based upon individual unemployability (TDIU). At a September 2016 Board hearing, the Veteran testified that he frequently missed work due to pain from his service-connected sickle cell anemia, and as a result, his employer reduced his hours from full-time to part-time. He testified that prior to the reduction in hours, he had worked full time from September 2008 to September 2013. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person 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. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran's service-connected disabilities include sickle cell disease with hemoglobinopathy, avascular necrosis of the left and right hip, tinnitus, and bilateral hearing loss. Based upon the rating of 60 percent for the Veteran's service-connected sickle cell disease and the total of 70 percent for all disabilities, the Veteran has met the schedular criteria of 38 C.F.R. § 4.16(a) throughout the period on appeal. A formal claim for TDIU was initially received on September 2013. The Veteran reported that his sickle cell disease prevented him from securing or following a substantially gainful occupation. He indicated that he became too disabled to work full-time in January 2010. Medical opinions in evidence reflect that the Veteran's service-connected disabilities render him unable to work. The Veteran was afforded a VA examination in May 2012, which reflected a diagnosis of sickle cell anemia. The examiner opined that the Veteran's sickle cell anemia impacted his ability to work. The Veteran had to work part time instead of full time due to his sickle cell condition. The Veteran was afforded a VA examination in December 2012, which reflected a diagnosis of bilateral avascular necrosis with bony changes of sickle cell disease (bilateral hip condition). The examiner opined that the Veteran's bilateral hip condition impacted his ability to work. The examiner stated that the Veteran last worked two years prior, and went out of work due to his sickle cell condition and his bilateral hip condition. The examiner noted that the Veteran's functional limitations with activities of daily living (ADL's) was inability to walk more than 1 mile, inability to stand more than 60 minutes, and inability to sit more than 60 minutes. In September 2015, a private treatment provider (Dr. P) noted that the Veteran has had sickle cell anemia all his life, with multiple admissions for pain control and infections. The treatment provider opined that the Veteran was unable to work at any time due to intractable daily pain and totally complicated disease. The Veteran was afforded a VA examination in June 2015, which reflected a diagnosis of sickle cell anemia. The examiner opined that the Veteran could do sedentary and light physical work. A September 2016 statement from Dr. P noted that the Veteran had a diagnosis of chronic sickle cell anemia, and suffered from repeated painful crises during the year, occurring in the bones, muscles, and joints, which caused chronic fatigue, episodes of severe pain, and frequent infections. The treatment provider opined that the symptoms precluded the Veteran from performing even light manual or sedentary labor; prevented the Veteran from obtaining or maintaining any type of substantial gainful employment; and as a result, the Veteran was permanently and totally disabled. Resolving all reasonable doubt in favor the Veteran, the Board finds that the Veteran met the rating percentage criteria for TDIU under 38 C.F.R. § 4.16(a) throughout the period on appeal, and the evidence shows that the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment throughout the period on appeal. ORDER Entitlement to a TDIU is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs