Citation Nr: 1807941 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 11-26 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from July 1963 to July 1967, and in the Army from November 1978 to April 1996. He had service in the Republic of Vietnam. He died in June 2014. The appellant claims as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied the Veteran's claim of entitlement to TDIU. As noted, the Veteran passed away in June 2014, during the pendency of the appeal. The appellant claims as the Veteran's surviving spouse; she is substituted as the appellant for purposes of adjudicating the Veteran's claims to completion. 38 U.S.C. § 5121A (allows for substitution in case of death of a claimant who dies on or after October 10, 2008). The Veteran testified before the undersigned Veterans Law Judge at an August 2012 hearing at the RO. A transcript of the hearing has been included in the claims file. This matter was remanded in April 2014 for additional development. A supplemental statement of the case was most recently issued in August 2017. The case was returned to the Board for appellate consideration. FINDINGS OF FACT The combined impact of the Veteran's service-connected disabilities rendered him unable to engage and retain substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board is granting the claim being decided herein. Any discussion of VA's duties to notify and assist are therefore unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.34, 3.341, 4.16(a). In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment.' 38 C.F.R. § 4.16(a) (2016). The Veteran seeks entitlement to TDIU on the basis of his service-connected disabilities. Service connection is in effect for: right and left knee total arthroplasty, rated as 30 percent disabling per knee; diabetes mellitus with erectile dysfunction, rated as 20 percent disabling; discectomy and fusion of the cervical spine at C5-C6 and C6-C7, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; peripheral neuropathy of the right and left lower extremities, rated as 10 percent disabling per leg; eschar of the left big toe, rated as 10 percent disabling; and bilateral hearing loss disability, rated as noncompensable. The Board has considered the fact that the Veteran's service-connected peripheral neuropathy of the right and left lower extremities and his right and left knee disabilities affect his bilateral lower extremities, and thus the combined rating for these disabilities may be considered a single disability rating for purposes of satisfying the threshold criteria for TDIU under 38 C.F.R. § 4.16(a)(1). Combined, these disabilities have been rated at 60 percent disabling, with consideration of the bilateral factor, and thus, they satisfy the requirement of having a single disability rated at least 40 percent disabling. See 38 C.F.R. §§ 4.16(a), 4.25 (combined ratings table) and 4.26 (bilateral factor). When combined with the diabetes mellitus with erectile dysfunction and discectomy and fusion of the cervical spine, each rated as 20 percent disabling, and the tinnitus and eschar of the left big toe, each rated as 10 percent disabling, the result is a 80 percent combined disability rating. Therefore, the Veteran meets the basic percentage requirements for eligibility for consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran provided a completed TDIU application. The application reflects that the Veteran has not worked since January 2011 and that he has 4 years of college. He did not have any additional education or training before or after he became too disabled to work. An August 2017 VA opinion by a VA vocational rehabilitation counselor and a physician VA medical examiner explained that the Veteran's service-connected disabilities would impact his employment and concluded that, in the aggregate, the Veteran would have difficulty obtaining and maintaining employment. To the extent that prior VA opinions indicated that the Veteran was capable of sedentary work, the Board observes that Dr. H, in a January 2012 statement, indicated that the Veteran would be unable to sit for prolonged periods of time. Likewise, as the August 2017 VA opinion indicated, the Veteran's symptomatology was progressively worsening. Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities rendered him unable to obtain or sustain substantially gainful employment. The evidence of record supports a finding that the combined impact of the Veteran's service-connected disabilities, without regard to advancing age and nonservice-connected disabilities, rendered him incapable of performing the physical and mental actions required by employment. ORDER Entitlement to TDIU, on the basis of substitution, is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs