Citation Nr: 18160817 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-49 429 DATE: December 27, 2018 ORDER Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Service connection is in effect for major depressive disorder rated 50 percent; prostate cancer residuals with prostatectomy residuals rated 40 percent; ventral hernia repair residuals rated 20 percent; diabetes mellitus rated 20 percent; right upper extremity radiculopathy rated 20 percent; left upper extremity radiculopathy rated 20 percent; right lower extremity sciatic radiculopathy rated 10 percent; right lower extremity femoral radiculopathy rated 10 percent; left lower extremity sciatic radiculopathy rated 10 percent; left lower extremity femoral radiculopathy rated 10 percent; bilateral cataracts rated 10 percent; erectile dysfunction rated 0 percent; and abdominal scar residuals rated 0 percent. The Veteran has a combined 90 percent service connected disability rating. 2. The service connected disabilities are of such severity as to preclude the Veteran from securing and following substantially gainful employment consistent with his education and work experience. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1967 to March 1969. He served in the Republic of Vietnam. In his September 2016 Appeal to the Board, VA Form 9, the Veteran specifically stated that he was appealing only from the denial of entitlement to a TDIU. He indicated that he wanted to be scheduled for a hearing. Because of the award of TDIU below which represents a full grant of the benefit sought on appeal, the Board of Veterans’ Appeals (Board) observes that scheduling a hearing is no longer necessary. On and after March 24, 2015, claims for Department of Veterans Affairs (VA) benefits are to be submitted on the appropriate claims form. 38 C.F.R. § 3.155. In a June 2018 Appellant’s Brief, the accredited representative made contentions which may be reasonably construed as an informal application to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) and informal claims for increased ratings for the service connected prostate cancer residuals, ventral hernia residuals, and erectile dysfunction. The Veteran should be provided with the appropriate claim form to submit an application to reopen the claim of entitlement to service connection for PTSD and claims for increased ratings for the service connected prostate cancer residuals, ventral hernia residuals, and erectile dysfunction if he desires. TDIU The Veteran asserts that the service connected disabilities make him unable to secure and follow any form of substantially gainful employment. Total ratings for compensation purposes may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to make the veteran unemployable without regard to either advancing age or the presence of any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341. Total ratings for compensation purposes are assigned where the schedular 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. If there is only one such disability, that disability shall be rated 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. The existence or degree of nonservice connected disabilities or previous unemployability status will be disregarded where the percentages for the service-service connected disability or disabilities are met and in the judgment of the rating agency such service connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection is in effect for major depressive disorder rated 50 percent; prostate cancer residuals with prostatectomy residuals rated 40 percent; ventral hernia repair residuals rated 20 percent; diabetes mellitus rated 20 percent; right upper extremity radiculopathy rated 20 percent; left upper extremity radiculopathy rated 20 percent; right lower extremity sciatic radiculopathy rated 10 percent; right lower extremity femoral radiculopathy rated 10 percent; left lower extremity sciatic radiculopathy rated 10 percent; left lower extremity femoral radiculopathy rated 10 percent; bilateral cataracts rated 10 percent; erectile dysfunction rated 0 percent; and abdominal scar residuals rated 0 percent. The Veteran has a combined 90 percent service connected disability rating. Therefore, the Veteran meets the schedular criteria for consideration for TDIU. 38 C.F.R. § 4.16(a). In a December 2015 Veterans Application for Increased Compensation Based on Unemployability, VA Form 21-8940, the Veteran reported that he had last been employed on a full-time basis in 2008. A March 2018 written statement from J. Otanez Cervantes, M.D., states that “due to the Veteran’s service connected bilateral upper extremity radiculopathy, bilateral sciatic lower extremity radiculopathy, and bilateral femoral lower extremity radiculopathy, among other multiple medical problems, it is my medical opinion that the Veteran is unable to obtain and follow substantially gainful employment.” The doctor clarified that “his multiple medical conditions, as mentioned above, prevent him from performing everyday tasks that a job would require.” The service connected disabilities have a 90 percent combined rating. The Veteran’s private physician has determined that Veteran is unable to perform substantially gainful employment due to the service connected disabilities. He has been not employed on a full-time basis since 2008. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the service connected disabilities make the Veteran unable to secure or follow a substantially gainful occupation. Therefore, the claim for TDIU is granted. 38 C.F.R. § 4.16. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel