Citation Nr: A21020022 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 211028-194898 DATE: December 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his service-connected disabilities preclude him from securing and following a substantially gainful occupation. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1957 to November 1960 and October 1961 to August 1962. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran's TDIU claim was raised in the context of his increased rating claims for his service-connected gastroesophageal reflux disease (GERD), bilateral hearing loss, tinnitus, pterygium left eye, and right leg fracture disabilities, service connection for which was granted service connection in an April 2017 rating decision. The Veteran raised the issue of entitlement to a TDIU in his July 2017 Notice of Disagreement (NOD). Another rating decision was issued in August 2019, and, in that decision, the Agency of Original Jurisdiction (AOJ) denied his claim for a TDIU. The Veteran submitted a timely VA Form 10182 (Notice of Disagreement) and, in so doing, requested the Hearing lane. In December 2020, he testified at virtual hearings before a Veterans Law Judge (VLJ) regarding separate appeals. Transcripts of those proceedings have been associated with the claims file. In May 2021, the Board remanded his TDIU claim to correct a pre-decisional duty to assist error. Another rating decision was issued in July 2021 denying this issue, and, in October 2021, he submitted a timely VA Form 10182 requesting direct review by the Board. Based on his choice to pursue a direct review of his appeal, the Board will decide this appeal "based on the evidence of record at the time of the prior decision." No additionally submitted evidence may be considered. TDIU The Veteran seeks entitlement to a TDIU. In this regard, the Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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 central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Halstead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place him/her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes obtaining or keeping employment difficult, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he/she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The claim for a TDIU was previously before the Board in May 2021, at which time the Board issued an AMA remand for a pre-decisional duty to assist error. The Board found that Social Security Administration (SSA) records were not obtained despite the indication that the Veteran was in receipt of SSA benefits, and these records may be pertinent to his TDIU claim. In July 2021, VA submitted a request for his SSA records. A response received from the SSA National Records Center later in July 2021 indicated that his records were unavailable as they had been destroyed. He was notified that these SSA records had been destroyed and were determined to be unavailable. See July 2021 Correspondence. Another rating decision was issued in July 2021 again denying his TDIU claim, and he requested direct review by the Board. See October 2021 VA 10182 Board Appeal (NOD). The Veteran has a combined disability rating of 70 percent from October 4, 2016, and of 80 percent from April 27, 2021. His service-connected disabilities include GERD with irritable bowel syndrome (IBS), rated 60 percent disabling from October 4, 2016; bilateral hearing loss rated 20 percent disabling from October 4, 2016, and 30 percent disabling from April 27, 2021; right fibula fractures residuals rated noncompensable from November 22, 1960 and rated 10 percent disabling from October 4, 2016; tinnitus rated 10 percent from October 4, 2016; dermatophytosis of the left foot, rated noncompensable from November 22, 1960; and pterygium of the left eye rated noncompensable from October 4, 2016. As such, the Veteran has met the schedular criteria for a TDIU since October 4, 2016, and for the entire period on appeal. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Review of the evidence of record, when taken in total, supports the finding that he is unable to obtain and maintain gainful employment as a result of his service-connected disabilities. As such, a TDIU is warranted. The Veteran submitted a VA Form 21-8940 in July 2017, wherein he asserted that his service-connected GERD prevents him from securing and following substantially gainful employment. He reported that his disabilities affected his employment in May 2009 and that he also became too disabled to work at that time. He reports that he previously worked as an owner of a fishing and shrimping business. Also, at the recent hearing, he testified that his GERD with IBS interfered with his ability to work. He stated that he either would not be able to go out on the boat or need to take breaks frequently use the restroom. He also stated that his right fibula fractures impacted his ability to work, as he would try to work through the pain or would need to sit down to alleviate the stress and thus be limited in what he could accomplish. He reported completing high school and "some college" and stated that he had only worked in the fishing and shrimping industry since the 1960. During a February 2017 VA esophageal conditions examination, the examiner indicated that the Veteran's GERD impacts his ability to work. The examiner noted that the Veteran stated he missed 1 to 2 hours of work a day in the last 12 months he was working, due to reflux symptoms and diarrhea. He reported that his family would need to take care of the business in his place during those times. Similar limitations were noted on the Veteran's February 2017 VA intestinal conditions examination, as the examiner acknowledged similar symptoms caused by the Veteran's IBS that would lead to missing work. Similarly, at the February 2017 VA knee and leg conditions examination, the examiner indicated that the Veteran's right fibula fractures residuals impact his ability to work as he would intermittently miss 1 to 2 hours a day in the last 12 months that he worked. He also stated that he would need to sit frequently while working and that his family members would need to take care of the business during those times. A February 2017 VA eye examiner noted that the Veteran's left eye disability does not impact his ability to work. At the March 2017 VA audiological examination, the examiner indicated that both conditions impact the Veteran's ability to work. The examiner noted that the Veteran's hearing loss causes problems for him in multiple listening situations, such as when there is background noise, when he does not see the person's face to be able to lip read, and when the person or sound source is at a distance. Similarly, the Veteran's tinnitus would impact his ability to work due to the constant ringing in both ears, as these problems worsened his ability to sleep and make him quite irritable. At the December 2018 VA knee and leg examination, the examiner noted that the Veteran's right fibula fractures residuals impact his ability to work because, as the condition deteriorated, he was left unable to sit and stand or easily transition between the two. The examiner noted that the Veteran was confined to sitting on a crate while working and could only disperse money and make change and that, due to the now intolerable pain from prolonged sitting, he would no longer be able to perform this job function. A July 2019 VA esophageal examiner indicated that the Veteran's GERD does not impact his ability to work. An April 2021 VA hearing loss and tinnitus examiner indicated that both conditions impact the Veteran's ability to work. With regard to hearing loss, the examiner indicated that the Veteran has difficulty hearing and understanding conversations and often asks others to repeat themselves or pretends that he understood what was said. Similarly, the examiner noted that the Veteran's tinnitus impacts his ability to work because the constant tinnitus interferes with his ability to hear clearly. Considering the evidence of record, the Board finds that the overall evidence is persuasive that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The majority of the VA examinations of record note that his service-connected disabilities impact his ability to work and make clear that his service-connected disabilities and symptoms limit his ability to secure or follow a substantially gainful occupation. The Veteran's physical disabilities make physical labor difficult, and his GERD with IBS and bilateral hearing loss disabilities further hinder his ability to maintain a gainful occupation. The record demonstrates that he would need to miss hours of work frequently in order to use the restroom and that there were even times when he could not go to work due to his GERD with IBS symptoms. His hearing loss provides additional limitations, as he experiences difficulties in loud settings and in employment settings where lip reading is not feasible. Given his physical, including gastrointestinal, limitations, he would likely have difficulty securing and maintaining a gainful occupation related to his prior work in the fishing and shrimping industry due to the frequent need for bathroom breaks. His service-connected disabilities would limit his ability to function in a way that would allow him to secure or follow a substantially gainful occupation of any nature. Based on the foregoing, the Board affords the Veteran the benefit of the doubt and finds that he is unable to obtain and maintain any form of substantially gainful (CONTINUED ON NEXT PAGE) employment due to his service-connected disabilities. The criteria for a TDIU have been met. 38 C.F.R. §§ 3.340, 4.16. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.