Citation Nr: 1803442 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-00 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S.Wainaina, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1975 to April 1995. This matter is on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge in November 2015. A transcript of the hearing is of record. This appeal is comprised entirely of documents contained in the Legacy Content Manager paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. The case was remanded in August 2016 by the Board for further development. FINDING OF FACT For the entire appeal period the Veteran is shown to have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW For the entire appeal period, the criteria for TDIU have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary. TDIU Total disability ratings for compensation 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). The Veteran filed a claim for TDIU on November 11, 2009. The Veteran's service-connected disabilities are residuals of head injury, evaluated as 70 percent disabling ; PTSD, evaluated as 50 percent disabling; migraine headaches, evaluated as 50 percent disabling from August 29, 2016; pes planus with hallux valgus and hammer toes, left foot, evaluated as 30 percent disabling; residuals, fracture, right great toe, status partial amputation, end, toe, with hallux valgus and hammertoes, evaluated as 30 percent disabling; left lateral upper eyelid scar, evaluated as 30 percent disabling; irritable bowel syndrome with recurrent duodenitis and hiatal hernia, evaluated as 10 percent disabling from November 17, 2009, and 30 percent disabling from January 31, 2007; lumbar spine degenerative disc disease, evaluated as 20 percent disabling; cervical spine degenerative arthritis, evaluated as 20 percent disabling; bilateral plantar warts, evaluated as 10 percent disabling; right knee chondromalacia, evaluated as 10 percent disabling; chronic left knee strain, evaluated as 10 percent disabling; residuals, fracture, right little finger, evaluated as noncompensable; and hiatal hernia without gastroesophageal reflux disease, evaluated as noncompensable from December 31, 2002, to July 21, 2015. The Veteran's combined rating is 100 percent effective November 17, 2009. Therefore, he meets the schedular requirements for TDIU. 38 C.F.R. § 4.16(a). Regarding whether the Veteran is unemployable due to his service-connected disabilities, at an August 2016 VA examination of the Veteran's TBI residuals, the examiner noted that the Veteran has severe headaches that are prostrating in nature, lasting all day, three times a week. The examiner noted that the Veteran cannot function in an occupational environment due to his headaches. At an August 2016 VA PTSD examination, the examiner noted that the Veteran had difficulty in maintaining effective work and social relationships. The examiner also concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner further noted that the Veteran has chronic sleep impairment, anxiety and slight memory loss. At an August 2016 VA examination for the Veteran's back, the examiner noted that the Veteran had severe pain in his left lower extremity associated with low back disability. The examiner further opined that the Veteran has chronic pain, is unable to drive and cannot bend and lift or walk and stand for more than a few minutes. The Veteran needs a walker for assistance with ambulation. At an August 2016 VA examination for the Veteran's hand the examiner noted that the Veteran cannot write for more than five minutes because of weakness in his right hand. At an August 2016 VA neck examination, the examiner noted that the Veteran is unable to reach, lift and carry, and can walk and stand for only short periods of times. The Board has considered his education and work background. The Veteran has a high school education and some college education. The Veteran's work background includes working as a corrections officer, armed security guard, range controller for an aerospace company and delivery person for a bread company He reported that he last worked in December 2008 and that his disability affected full time employment in May 2009. Taken together, these examination findings, considered in conjunction with the Veteran's educational background and work history, reasonably lead to a conclusion that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. 38 C.F.R. § 4.16(a). The evidence indicates that the service-connected disabilities preclude the Veteran from performing minimally physically demanding or sedentary work. Accordingly assignment of a TDIU is warranted. ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs