Citation Nr: 1749121	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  07-31 415	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 7, 2014.  


ATTORNEY FOR THE BOARD

T. Talamantes, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to January 1970.

This case comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the United States Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.  
The TDIU claim was originally one of several claims for benefits including a number of service connection claims and claims for increased schedular ratings.  Eventually, the other claims were resolved and 100 percent schedular disability evaluation was granted effective from January 2014.  The only issue remaining is entitlement to TDIU benefits prior to January 2014.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Prior to January 7, 2014, the evidence of record does not show that the Veteran's service-connected disabilities preclude him from obtaining and retaining substantially gainful employment.  


CONCLUSION OF LAW

The criteria for entitlement to a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Total disability will be considered to exist where there is present any impairment of mind and 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 for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements.  If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  38 C.F.R. § 4.16(a).

To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war.  Id.  Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).

In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

The Board notes that as of January 7, 2014 the Veteran's combined disability rating is 100 percent.  A TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent.  38 C.F.R. § 4.16(a).  A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect.  Therefore, the Board will focus its analysis on the period prior to January 7, 2014.  

The Veteran contends that his service-connected disabilities render him unemployable.  His service-connected disabilities, prior to January 7, 2014 include:  peripheral neuropathy of right upper extremity with over imposed right carpal tunnel syndrome associated with diabetes mellitus type II, rated at 10 percent from December 2006; peripheral neuropathy of left upper extremity with over imposed left carpal tunnel syndrome associated with diabetes mellitus type II, rated at 10 percent from December 2006; diabetes mellitus type II, rated at 10 percent disabling from December 2006 and 20 percent disabling from March 2007; peripheral neuropathy of left lower extremity associated with diabetes mellitus type II, rated at 10 percent from May 2007; peripheral neuropathy of right lower extremity associated with diabetes mellitus type II, rated at 10 percent from May 2007; tonsillitis, rated at 0 percent; arterial hypertension associated with diabetes mellitus type II, rated at 0 percent.  

His combined rating was 30 percent prior to March 2007; 40 percent from March 2007 to May 2007; and 50 percent from May 2007 to January 2014.  Although the Veteran's service-connected disabilities prior to January 7, 2014 do not meet the threshold percentage requirement to establish eligibility for TDIU pursuant to 38 C.F.R. § 4.16(a), it must still be determined whether his service-connected disabilities preclude him from engaging in substantially gainful employment on an extra-schedular basis.  See 38 C.F.R. § 4.16(b).  Nevertheless, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  

In this case, however, the Board does not find that consideration of an extraschedular rating, prior to January 7, 2014, under the provisions of 38 C.F.R. § 4.16(b) is in order.  As discussed more fully below, the most probative and credible evidence in this case fails to show that the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment any time during the appeal period.  Id.  The Board finds that referral for consideration of a total rating based on unemployability due to service-connected disability is not warranted.

In a 2007 VA Form 21-8940, the Veteran indicated that the last time he worked full-time was in 2002.  He indicated that he worked in maintenance from 1990 to 2002 for an engineering company.  He also indicated that he became too disabled to work in 2002, attributing his disability to all of his service-connected disabilities on record and PTSD.  According to this TDIU application, the Veteran completed 2 years of college.  He stated that he tried to work, was unable to and was granted social security disability.
In a January 2003 private mental impairment questionnaire, the private examiner diagnosed the Veteran with major depression and stated, "he is totally and permanent disabled."

In a disability report dated May 2003, the Veteran stated that his left shoulder strain, emotional condition and finger amputation limit his ability to work.  He stated that he became unable to work in October 2002.  He listed his work history as: handyman at construction company from January 2000 to October 2002, machine operator from 1995 to 1998, and maintenance at a car dealership from 1987 to 1992.  As a maintenance man he reported his duties as cleaning, landscaping, walking four hours a day, standing three hours a day, bending down for an hour a day and carrying heavy items weighing 50 to 60 pounds.  

In an August 2003 VA case development sheet, the examiner noted that the Veteran is able to do relevant work and is not disabled. 

In a July 2004 Social Security Administration hearing the Veteran was granted disability benefits, commencing October 2002 as a result of his psychiatric symptoms and physical conditions.  The Veteran alleged disability due to work related incidents that caused left shoulder strain, amputation of left fingers and an emotional condition that started as a result of these work injuries.  As part of the record in his hearing, one of the Veteran's treating psychiatrists stated that the Veteran's ability to do work related activities is poor and he is unable to perform even unskilled work and indicated that he has continual episodes of deterioration or decompensation in work or work like settings.   

In the March 2007 Statement in Support of Claim, the Veteran stated, "I am 100% disabled due to said S/C conditions and for which I receive soc sec benefits."

A VA examiner in a January 2009 VA examination report stated that the Veteran is not to be considered unemployable because of his service-connected diabetes.  The examiner opined that the Veteran would be able to perform sedentary jobs that do not require him to stand for a prolonged time.  The Veteran reported that his mental condition disables him, preventing him from being able to work.  

The Board finds that the preponderance of the evidence does not show that the Veteran is precluded from obtaining and maintaining gainful employment consistent with his education and occupational experience due to his service-connected disabilities.  

Here, the evidence shows that the Veteran has been employed since approximately 1987 to 2002.  Apart from his statements, there is no evidence of record to indicate that the Veteran is unable to work due to his service-connected disabilities, nor has any medical professional opined that his service-connected disorders alone impact his ability to work.  In fact, the Veteran himself considers his psychiatric disorder and other non-service connected conditions as the reasons he is unable to work.  In addition, the medical evidence of record indicates that the Veteran's service-connected disabilities have no impact on his ability to find employment.  In the July 2009 VA examination the examiner opined that the Veteran is not unemployable as a result of his service-connected diabetes and the examiner stated that he would be able to engage in sedentary employment.  Lastly, it is clear when reviewing the July 2004 Social Security Administration hearing report that it is the Veteran's work injuries and his psychiatric disorder- all non-service connected conditions, that rendered him unable to work.  

While it is recognized that the Veteran's service-connected disabilities have some impact on his employability, the schedular evaluations contemplate the industrial impairment resulting from his disorders.  

The preponderance of the evidence is against finding his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment prior to January 2014.  


ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 7, 2014 is denied.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s