Citation Nr: 1803549	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO. 14-08 568	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Alexandra M. Jackson, Attorney


ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel






INTRODUCTION

The Veteran served on active duty from November 1986 to September 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA).


FINDING OF FACT

The preponderance of the competent and credible evidence establishes that the Veteran's service-connected disabilities, standing alone, effectively preclude all forms of substantially gainful employment.


CONCLUSION OF LAW

The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify & Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012) defined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). However, in view of the Board's favorable decision herein, further assistance is unnecessary to aid the Veteran in substantiating his claim.

Legal Criteria & Analysis

Total disability ratings for compensation 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. For the purposes of these ratings, a single disability will be considered if the disabilities are of one or both upper extremities, one or both lower extremities disabilities resulting from a common etiology, disabilities affecting a single bodily system, multiple injuries incurred in the same action, or multiple disabilities incurred as a prisoner of war. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19.

Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (included but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16.

For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside of the norm. The sole fact that he 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 and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The Veteran is currently service-connected for asthma, rated at 60 percent; hypertension, rated 20 percent; and bilateral tinnitus, rated at 10 percent. He has a combined disability rating of 70 percent.  Therefore, the Veteran's service-connected disabilities meet the criteria for the assignment of a TDIU on a schedular basis. 38 C.F.R. § 4.16.

The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. See July 2009 VA Form 21-8940. 

According to the record, the Veteran received rehabilitation counseling from a VA Vocational Rehabilitation Counselor (VRC) in May 2009. The Veteran reported that he had a high school education and post-service experience as a meter reader, test mechanic, and merchandiser. He also reported that he had increasing difficulty in his last job carrying heavy cases as a drink delivery route person. The Veteran became unemployed in January 2005 due to an on-the-job injury and illness and had been unemployed since. 

In his report, the VRC determined that the Veteran exhibited identifiable functional limitations stemming directly from his service-connected disabilities. The VRC also noted a substantial impairment of employability due to the Veteran's service-connected disabilities and lack of education. In addition, the VRC determined that the Veteran did not have transferable skills from the military or his education, training, or job experience in a field that did not aggravate his service-connected disabilities. As a result, the VRC concluded that the Veteran's vocational goal of returning to work was not currently feasible.

Subsequently, the Veteran filed a claim of entitlement for a TDIU. See July 2009 VA Form 21-8940. In his application form, the Veteran cited his current health and the VRC's May 2009 findings.
A VA unemployability examination took place in May 2010. The examiner determined that the Veteran's hypertension "should not affect employment." May 2010 Compensation and Pension Examination Note. In addition, the examiner determined that while the Veteran's asthma might interfere with gainful employment entailing heavy physical labor, it "should not preclude sedentary work." Id. A contemporaneous audiology examination found that the Veteran's tinnitus "should not render [him] unemployable." See May 2010 VA audiology note. The examiner also stated that he would only expect tinnitus to be bothersome to the Veteran and that the Veteran did not report difficulty with sleep or concentration due to tinnitus.

In an April 2013 disability determination, a Social Security Administration (SSA) Administrative Law Judge (ALJ) found the Veteran disabled for SSA purposes due to degenerative joint disease of the bilateral knees, hypertension, tinnitus, chronic obstructive pulmonary disease (COPD), diabetes mellitus, obstructive sleep apnea, obesity, depression, and anxiety. Specifically, the ALJ found that the Veteran could not perform even sedentary work due to his extensive physical problems. The ALJ cited a residual functional capacity test, which found, inter alia, that the Veteran could only sit, walk, or stand for a limited period of time; could not perform repetitive bending or twisting at the waist; and required breaks outside routine breaks and lunch. The ALJ also cited the testimony of a vocational expert, who stated that, considering the Veteran's age, education, work experience, and residual functional capacity, there were no jobs that existed in significant numbers in the national economy that the Veteran could perform.

Upon review of the record, the Board finds that the preponderance of the competent and credible evidence establishes that the Veteran's service-connected disabilities, standing alone, effectively preclude all forms of substantially gainful employment. The May 2009 rehabilitation counseling report found that it would not be feasible for the Veteran to return to work due, in substantial part, to his service-connected disabilities and lack of education. The VRO also noted in the report that the Veteran lacks transferrable skills. The Board recognizes that the VRO, who identified himself as a Licensed Professional Counselor (LCC) and a National Certified Counselor (NCC), is an expert in the field of vocational rehabilitation. Therefore, he is competent to testify to and distinguish the respective effects of the Veteran's disabilities, including his service-connected disabilities, on his vocational abilities. The Board also finds no evidence to doubt the VRO's credibility.

Further, the VRO's findings are supported, in part, by the favorable April 2013 SSA disability determination. The disability determination found that the Veteran could not perform even sedentary work due to his extensive physical problems. Although it did not specify on the impact that the Veteran's service-connected disabilities, standing alone, have on his ability to obtain and maintain substantially gainful employment, it at least substantiates the disability picture portrayed by the May 2009 rehabilitation counseling report.

Lastly, the Board finds that the May 2010 VA examinations are inadequate. The examiners did not comment on the combined impact that the Veteran's service-connected disabilities have on his functional abilities. However, in light of the positive competent and credible evidence of record, a remand to obtain a new examination is unnecessary. Accordingly, the criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017).


ORDER

Entitlement to a TDIU is granted, subject to the regulations governing payment of monetary awards.




____________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs