Citation Nr: 1802228 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-06 958A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September 1965 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the RO in Roanoke, Virginia. The Veteran and spouse testified in July 2017 before the undersigned Veterans Law Judge at a Board Videoconference hearing in Roanoke, Virginia. The hearing transcript has been associated with the record. FINDINGS OF FACT 1. The service-connected disabilities have a combined rating of 90 percent, with at least one service-connected disability rated 40 percent disabling. 2. For the period from February 2011, the service-connected disabilities have prevented the Veteran from retaining (maintaining) substantially gainful employment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the period from February 2011, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims and Assistance Act of 2002 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). As the Board is granting a TDIU to the earliest date that the Veteran states he ceased full-time employment, constituting a full grant of the benefit sought on appeal, there remains no aspect of the claim to be further substantiated, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is 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. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2017). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The Veteran contends generally that a TDIU is warranted from February 2011. At the July 2017 Board hearing, the Veteran testified that a TDIU from February 2011 would constitute a full grant of the benefit sought on appeal. See July 2017 hearing transcript. Initially, the Board will address the relevant period on appeal. In this case, the Veteran seeks a TDIU from February 2011 based on coronary artery disease (CAD) rated as 60 percent disabling, posttraumatic stress disorder (PTSD) rated as 50 percent disabling, shell fragment wound residuals, rated as 30 percent disabling, hearing loss rated as 20 percent disabling, tinnitus rated as 10 percent disabling, a painful scar rated as 10 percent disabling, left cheek nerve damage rated as 10 percent disabling, and limitation of function associated with a shell fragment wound rated as 10 percent disabling. As the Veteran had a single disability rated 40 percent or more (CAD or PTSD), and as the combined schedular disability rating is at least 70 percent, the eligibility requirements of 38 C.F.R. § 4.16(a) are met for the entire relevant rating period from February 2011. Next, the Board must address the date on which the Veteran first stopped working at a full-time, substantially gainful job. Having reviewed all the evidence of record, the Board finds that the evidence is at least in equipoise that the Veteran stopped working full-time in February 2011. At the July 2017 Board hearing, the Veteran testified to last working full-time in February 2011. In addition, both the August 2011 and January 2012 TDIU claim forms (VA Form 21-8940) reflect that the Veteran wrote that he last worked full-time in February 2011. As such, the Board finds that a TDIU should be granted from February 2011 because the evidence shows that the Veteran first stopped working at full-time, substantially gainful employment at that time. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). The criteria for TDIU are not met prior to February 2011, and the Veteran does not contended otherwise. As noted above, the evidence of record, including the Veteran's own statements, demonstrate that the Veteran last worked full-time in February 2011, and the July 2017 Board hearing transcript reflects that the Veteran testified that a TDIU from February 2011 would constitute a full grant of the benefit sought on appeal. See July 2017 Board hearing transcript. After reviewing all the evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the service-connected disabilities prevented the Veteran from obtaining or maintaining substantially gainful employment from February 2011. During the July 2017 Board hearing, the Veteran testified that medications used to treat PTSD interfered with the ability to control nerves and the hands, as well as the ability to focus. The July 2017 Board hearing transcript also reflects that the Veteran testified to the inability to drive due to drowsiness caused by medication used to treat the service-connected nerve disability. Further, a July 2016 private medical opinion reflects that the private examiner opined that the service-connected shell fragment wound residuals impacted the ability to work, to include the ability to stand for more than 15 minutes. In addition, a January 2013 VA examination report reflects that the VA examiner opined that the symptoms and impairment of the service-connected PTSD "significantly" limited the ability to maintain substantially gainful employment, and a March 2012 VA audiometric examination report reflects the VA examiner opined that both hearing loss and tinnitus impacted the ability to work, to include the ability to understand speech. The Veteran's service-connected disabilities precluded the type of employment for which he is trained and for which he has experience, beginning in February 2011. Considering statements from the Veteran, the July 2016 private medical opinion, as well as the January 2013 and March 2012 VA examination reports, the Board finds that the Veteran's service-connected disabilities render him unable to maintain substantially gainful employment, regardless of occupation, from February 2011; thus, the Board finds that TDIU is warranted under 38 C.F.R. § 4.16(a) from February 2011. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeal for TDIU is fully granted in this Board decision. As discussed above, at the July 2017 Board hearing, the Veteran indicated that a TDIU from February 2011 would fully satisfy the appeal as; therefore, the appeal is fully granted. ORDER A TDIU from February 2011, but no earlier, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs