Citation Nr: 18156432 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 14-39 166 DATE: December 11, 2018 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 60 percent for ulcerative colitis is remanded Entitlement to a compensable rating for residuals of a stab wound to the right posterior chest is remanded. Entitlement to a compensable rating prior to September 18, 2014, and in excess of 10 percent thereafter, for residuals of a stab wound to the right hand, ulnar side involving the 5th digit, is remanded. FINDING OF FACT Resolving all reasonable doubt in the favor of the Veteran, the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1995 to January 1998. These matters come before the Board on appeal of a November 2008 rating decision. In a September 2014 Decision Review Officer (DRO) decision, a 10 percent rating was assigned for residuals of a stab wound to the right hand, effective September 18, 2014. The record reflects that the Veteran was scheduled for an October 2018 Board videoconference hearing, but that he cancelled the hearing. The issue of entitlement to TDIU has been raised and is before the Board. See Rice v. Shinseki, 22 Vet. App. 447, (2009). The RO separately denied TDIU in November 2014, and in a September 2018 rating decision the RO indicated that a claim for TDIU was deferred. To date, another decision has not been rendered; however, a separate decision is not necessary as the TDIU claim is part of the claims for increased compensation. TDIU In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. §1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. VA defined substantially gainful employment as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.” In reaching such a determination, the central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. Total disability ratings for compensation may be assigned, where the scheduler rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The issue of entitlement to TDIU has been raised by the record, per Rice, 22 Vet. App. at 447, and in a specific claim. The Veteran is currently in receipt of service connection for ulcerative colitis (rated as 60 percent disabling); left ankle degenerative joint disease with surgical fusion and ankylosis (40 percent disabling); scars, status post left ankle fusion (40 percent); residuals of stab wound to the right hand, ulnar side involving the 5th digit (10 percent); residuals of a stab wound to the right posterior chest (noncompensable); scar, residual of stab wound of the back (noncompensable); superficial scar, residual of stab wound of the back (noncompensable); scar, residual of stab wound of the hand (noncompensable); and scars, status post-surgery of the left ankle (noncompensable). His combined rating for these disabilities is 90 percent. Consequently, he is eligible for a TDIU on a schedular basis. The remaining question is whether he is unemployable as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a). The Veteran contends that his service-connected disabilities render him unemployable. The record shows that his work history involved paving work. The Veteran further reported his highest level of education is four years of high school. On VA examination in June 2018, the Veteran reported having stiffness in the left ankle and calf. He stated that he would get sharp spasms in the left ankle, foot and calf and that any increased activity caused more left ankle pain and that he must stop and rest. In a June 2018 VA opinion, the examiner stated that the Veteran has significant degenerative osteoarthritis and ankle deformity leading to chronic pain with ambulation and functional impairment. In considering all the evidence, the Board finds that the Veteran is, for all practical purposes, precluded from substantially gainful employment, especially when considering his work history. While VA examination reports are of record, there is no combined opinion addressing the cumulative effect of the Veteran’s service-connected disabilities. On the other hand, the overall medical evidence indicates that the Veteran’s service-connected disabilities and in particular, his left ankle disabilities, are of such severity as to preclude employment. Based upon the foregoing, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran’s service-connected disabilities render him unemployable. Therefore, the benefit of the doubt should be given to the Veteran, and TDIU should be granted. REASONS FOR REMAND 1. The claims of entitlement to a rating in excess of 60 percent for ulcerative colitis, entitlement to a compensable rating for residuals of a stab wound to the right posterior chest, and entitlement to a compensable rating prior to September 18, 2014, and in excess of 10 percent thereafter, for residuals of a stab wound to the right hand, ulnar side involving the 5th digit, are remanded. In October 2018 correspondence the Veteran’s attorney requested a copy of the VA examiner’s curriculum vitae (CV) so she could fully develop any arguments regarding the competency of the September 2014 VA examiner who conducted an examination with respect to the increased ratings on appeal. Upon remand, the Veteran and his attorney should be furnished with a copy of the VA examiner’s CV. See Nohr v. McDonald, 27 Vet. App. 124 (2014). The matters are REMANDED for the following action: Contact the September 2014 VA examiner and request that she provide a copy of her resume/curriculum vitae (to include a list of publications, list of specialties, etc., if any). Upon receipt of such, associate it with the file and provide the Veteran and his representative a copy thereof. If the requested resume/curriculum vitae is not obtainable, the reasons for such should be noted in the record. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Henriquez, Counsel