Citation Nr: 1801964 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-44 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran The Veteran's Spouse ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1946 to January 1948 and August 1950 to September 1951. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, a videoconference hearing was held with the Veteran and his wife as witnesses. A transcript of the hearing has been associated with the claims file. In January 2017, the Board remanded the claim for additional examinations to assess the impact of his disabilities on his employability. Those examinations were provided in March 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) (2012). FINDING OF FACT The Veteran's service-connected disabilities cause occupational difficulties and prevent him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU rating have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and does not need to be addressed. TDIU An award of TDIU requires that a veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability, and that the veteran have a single service-connected disability rated at 60 percent or more, or at least one service-connected disability rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disabilities are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In making this determination, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The effective date for the grant of TDIU is governed by the increased rating provisions of 38 C.F.R. § 3.400(o). See Hurd v. West, 13 Vet. App. 229 (2000). The Veteran meets the schedular requirements for TDIU. He is currently rated at a 80 percent for all of his service-connected disabilities and is rated 40 percent from his combined rating for his cold injuries. Therefore, the Veteran has met the schedular requirement for TDIU consideration. The record shows that the Veteran is unable to maintain or obtain substantially gainful employment because of his peripheral neuropathy and other service-connected disabilities. In his March 2014 notice of disagreement, the Veteran reported that he had to quit his job as an assistant in a GED program due to his disabilities caused by his cold injuries and peripheral neuropathy. The Veteran's former employer confirmed the Veteran's disability, reporting in that same month that the Veteran was "unable to perform the duties required of him due to numbness and pain in his hands and feet and trouble with prolonged standing and walking. These conditions got worse and caused him to resign." The evidence reveals that the Veteran's disabilities have worsened over time. In April 2015, the Veteran reported that he could no longer write with his right hand. In November 2015, he stated that he was unable to stand, walk, or kneel for "any periods." He also stated that he had difficulty "holding on to objects such as phones, type on computers, and simple tasks in grading papers and writing." Treatment records from this period show that the Veteran was unable to manipulate tools in his hand and would have "moderate to severe difficulty in doing household chores." The Veteran's signature on correspondence after this period also shows a clear difficulty in manipulating writing utensils. In a hearing dated September 2016, the Veteran reported that he could not conduct sedentary work because of his cold injuries, stating that numbness in his hand prevented him from writing or typing. He reported that he attempted to help his friend build cabinets, but because he was unable to use the tools with his hands he was unable to provide any assistance. He also reported that the cold injuries prevented him from being on his feet for long periods of time. The Veteran's wife reiterated that the Veteran had difficulty walking and that the numbness and pain in his hands prevented him from working on a computer or writing by hand. The Board notes that the post-remand examinations did not provide adequate rationale and so are given little probative weight. The March 2017 examinations found that the Veteran's disabilities were "mild," despite noting the Veteran's severe difficulties in using his hands and the pain and paralysis he experienced in his upper and lower extremities. The examiner did not provide a rationale as to how the Veteran was mildly impaired, yet he was unable to write, type, use tools, or stand for long periods. Without an explanation for finding that the Veteran's symptoms were mild, the Board cannot afford the opinion significant weight in assessing the Veteran's unemployability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Based on a review of the record, the Board concludes that the Veteran meets the criteria for TDIU. The Veteran reported that he could no longer type, write, or stand for long periods. Treatment notes and testimony at the September 2016 hearing confirm that the Veteran's severe neurological symptoms would prevent him from conducting even the most routine responsibilities at any place of employment, sedentary or otherwise. With his inability to type, write, stand, or use his hands, the Board finds that the Veteran is unable to maintain or obtain substantially gainful employment. Overall, it is clear that his peripheral neuropathy and other disabilities prevent him from obtaining and maintaining substantially gainful employment. Therefore, TDIU is warranted. ORDER Entitlement to a TDIU rating is granted. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs