Case 22000640

Summary

The Veteran, who served from August 1978 to June 1987, appeals the denial of entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran has multiple service-connected disabilities, including bilateral osteoarthritis with gout in the feet and ankles, hypertension, and tinnitus, resulting in a combined disability rating of 80 percent. The primary issue is whether these disabilities alone are of sufficient severity to prevent the Veteran from securing or following substantially gainful employment. The Veteran submitted lay testimony and a private vocational evaluation supporting unemployability, citing difficulties with walking, pain, limited motion, and the need to elevate his legs for extended periods. While earlier VA examinations suggested the Veteran could perform sedentary work, the Board found these opinions did not fully consider more recent evidence regarding the Veteran's inability to work seated without leg elevation. The Board also noted that the Veteran's tinnitus could impede communication. Considering the significant physical impairments and the evidence indicating the Veteran's inability to sustain gainful employment, the Board concluded that TDIU is warranted. The Veteran has not received income since 2010 and receives SSA benefits for his conditions. The Board granted entitlement to TDIU.

Rationale

Veteran's combined rating of 80% meets schedular criteria for TDIU.; Earlier VA exams did not consider recent evidence of inability to work seated without leg elevation.; Tinnitus may impede communication.; Significant physical impairments interfere with labor.

Full Decision Text

Citation Nr: 22000640
Decision Date: 01/05/22	Archive Date: 01/05/22

DOCKET NO. 16-22 714
DATE: January 5, 2022

ORDER

Entitlement to a total disability rating based on individual unemployment (TDIU) is granted.

FINDING OF FACT

The Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.

CONCLUSION OF LAW

Entitlement to a TDIU is warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1978 to June 1987.

1. Entitlement to a total disability rating based on individual unemployment (TDIU)

Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a).

In evaluating entitlement to a TDIU, the central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled.

The Veteran is service-connected for osteoarthritis with gout, right foot, status post first metatarsophalangeal joint arthrodesis, right great toe, evaluated at 20 percent; osteoarthritis with gout, left foot, evaluated at 20 percent; osteoarthritis with gout, right ankle, evaluated at 20 percent; osteoarthritis with gout, left ankle, evaluated at 20 percent; scar, right great toe, evaluated at 10 percent; hypertension, evaluated at 10 percent; tinnitus, evaluated at 10 percent. The following are evaluated as noncompensable: left ear hearing loss, onychomycosis, bilateral toes, status post first metatarsophalangeal joint arthrodesis, right great toe, left lower extremity deep vein thrombosis associated with osteoarthritis with gout, left foot, and right lower extremity deep vein thrombosis associated with osteoarthritis with gout, right foot, status post first metatarsophalangeal joint arthrodesis, right great toe. The Veteran has a combined evaluation of 80 percent. Under the rules of combination and the bilateral factor, the Veteran meets the schedular criteria for TDIU.

In his September 2010 VA Form 21-8940 Application for a TDIU, he reported that he last worked full-time in July 2010 as a transportation driver due to his service-connected disorders. Lay testimony from the Veteran's witnesses establish that the Veteran has also worked as a security guard and a deacon.

The Veteran was afforded a VA examination in January 2011. The VA examiner noted that while the Veteran had bilateral ankle swelling, and physical employment would be prevented due to difficult walking, pain, and limited motion, the Veteran "would most likely be able to sustain a sedentary employment." The VA examiner also noted that "mild osteoarthritis of bilateral ankles would not prevent Veteran from sustaining a gainful occupation."

An October 2011 VA examination noted that the Veteran uses a cane in the house and a walker for outdoor activities. The Veteran reported requiring special items in the bathroom help him out and confirmed he was been unable to work for the last year.
 that the Veteran has also worked as a security guard and a deacon.

The Veteran was afforded a VA examination in January 2011. The VA examiner noted that while the Veteran had bilateral ankle swelling, and physical employment would be prevented due to difficult walking, pain, and limited motion, the Veteran "would most likely be able to sustain a sedentary employment." The VA examiner also noted that "mild osteoarthritis of bilateral ankles would not prevent Veteran from sustaining a gainful occupation."

An October 2011 VA examination noted that the Veteran uses a cane in the house and a walker for outdoor activities. The Veteran reported requiring special items in the bathroom help him out and confirmed he was been unable to work for the last year. A separate October 2011 examination found that the Veteran's hypertension does not impact his ability to work.

The Veteran underwent a private vocational evaluation in January 2017. The Veteran was found to be unemployable. The evaluator noted that sedentary work involves occasional standing and walking, of which the Veteran was incapable.

In June 2018, a VA examiner noted that the Veteran stated that his tinnitus is "bothersome in quiet environments." An August 2019 VA examination noted that the Veteran's deep vein thrombosis in both legs prohibited standing or walking over 10 minutes and required use of a cane or walker at all times. The examiner stated that the Veteran "can work sitting with his legs elevated." To this extent, the Veteran has testified that he requires elevation of his legs for at least 10 hours a day. See VA 21-4138 Statement in Support of Claim, received March 13, 2017.

Social Security Administration records indicate that the Veteran has not received an income since 2010 with a disability onset date of August 2010. He receives SSA benefits for his gout, arthritis, blood clots, hypertension, hearing problems, and problems in both feet.

A decision to grant TDIU is based upon the decision of the adjudicator. Here, the Board has reviewed the record specific to the Veteran's service-connected disabilities. This includes lay statements, VA examinations, private medical records, and other medical evidence within the Veteran's file that was not mentioned in this decision.

The Board concludes that TDIU is proper here. We note that the earlier VA examiners from 2011, while stating that the Veteran can perform sedentary work, were unable to consider more recent reports that the Veteran cannot work seated without elevating his feet. VA examinations report that a job that requires movement is unrealistic for the Veteran, as the Veteran's osteoarthritis prevents uninhibited movement. We also observe that the Veteran's tinnitus may prevent work in quiet environments and impede his ability to communicate with others.

 

The Veteran has significant physical impairments. The disorders interfere with the ability to perform labor. Based upon the evidence in the file, the Veteran is unable to obtain and retain substantially gainful employment. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.  

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jonah Nelson, Associate Counsel

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.