Citation Nr: 1549285	
Decision Date: 11/23/15    Archive Date: 11/25/15

DOCKET NO.  11-15 116	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Daniel Bassett, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1961 to September 1983.

This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.  In that rating decision, the RO denied entitlement to individual unemployability. 

The Veteran's Notice of Disagreement with that decision was received at the RO in October 2010.  The RO issued a Statement of the Case (SOC) in March 2011.  The Veteran perfected his appeal with the submission of a timely substantive appeal (VA Form 9), which was received at the RO in May 2011.  The Veteran did not request a hearing before the Board.

In addition to the paper claims file, there is an electronic record which includes a Virtual VA (VVA) electronic claims file and the Virtual Benefits Management System (VBMS).  The documents in the VBMS and VVA files have been reviewed.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record

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


FINDINGS OF FACT

1.  Service connection has been established for left lower extremity weakness and impaired coordination due to cavernous malformation of the cervical spine, rated as 40 percent disabling; left upper extremity weakness and impaired coordination due to cavernous malformation of the cervical spine (non-dominant), rated as 20 percent disabling; fifth (trigeminal) cranial nerve distribution, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; hiatal hernia, rated as 0 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. 

2.   The Veteran's service-connected left lower extremity weakness and impaired coordination due to cavernous malformation of the cervical spine, left upper extremity weakness and impaired coordination due to cavernous malformation of the cervical spine, and fifth, trigeminal, cranial nerve distribution are considered one disability because they stem from a common etiology; and combine to a single 60 percent disability rating for compensation purposes.  

3.  The Veteran completed four years of high school but has no other training; he worked as an electronic technician from 1995 to 2002, and as a slot machine repairer from August 2007 to October 2007.  

4.  The Veteran's service connected left lower extremity weakness and impaired coordination due to cavernous malformation of the cervical spine, left upper extremity weakness and impaired coordination due to cavernous malformation of the cervical spine, and fifth, trigeminal, cranial nerve distribution, as likely as not, preclude substantially gainful employment. 


CONCLUSION OF LAW

Resolving all doubt in favor of the Veteran, the criteria for assignment of a total disability rating based on individual unemployability due to service connected disability has been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The grant of a TDIU constitutes a complete grant of the benefits sought on appeal with respect to that issue.  As such, any defect with regard to VA's duty to notify and assist the Veteran with the development of his claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary.

The Veteran asserts that he is unemployable as a result of his service-connected neurological disability.  He maintains that the service-connected disability of left lower extremity weakness and impaired coordination due to cavernous malformation of the cervical spine, rated as 40 percent disabling; and left upper extremity weakness and impaired coordination due to cavernous malformation of the cervical spine (non-dominant), rated as 20 percent disabling; and fifth (trigeminal) cranial nerve distribution, rated as 10 percent disabling (hereinafter referred to as "neurological disability"); make it impossible for him to obtain or maintain gainful employment.  

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 disability shall be rated totally disabled.  38 C.F.R. § 4.16.  A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation."  38 C.F.R. §§ 3.340(a)(1), 4.15.

A total disability rating for compensation may be 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more.  If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a).  38 C.F.R. § 4.16(a) further provides that disabilities resulting from a common etiology or single accident will be considered one disability.  In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2015).

For the purposes of one 60 percent disability, the following are considered one disability because they stem from a common etiology: left lower extremity weakness and impaired coordination due to cavernous malformation of the cervical spine (40%), left upper extremity weakness and impaired coordination due to cavernous malformation of the cervical spine (20%), and fifth, trigeminal, cranial nerve distribution (10%).  When these disability ratings are combined (not merely added together) based on the Combined Ratings Table at 38 C.F.R. § 4.25, the rating is 60 percent.  Thus, the Veteran has one disability rated at 60 percent; and, he asserts that this one neurological disability renders him unable to maintain substantially gainful employment.  Accordingly, the threshold percentage requirement for consideration of a TDIU under 38 C.F.R. § 4.16(a) are met.  

Thus, the only remaining question is whether the Veteran is unemployable due to his service-connected neurological disability.  

The Veteran's employment history includes work as an electronics technician and slot machine repairer with gainful employment noted on his TDIU claim form from approximately 1992 to 2002.  In February 2012, the Veteran reported that he could no longer hold down full time employment after October 2002 because of his neurological disability.  The Veteran had been gainfully employed in that position for seven years.  After October 2002, the Veteran reported that has not worked full time and the record indicates only sporadic employment as a slot machine repairman.  The Veteran's last employer responded that the Veteran was not terminated from his last job due to his disability.  This is in contrast to the Veteran's reports that he could no longer work in his field after 2002 because of his neurological impairment.  Regardless of the reason for his termination in 2007, it does not appear that the Veteran has been able to maintain gainful employment since 2002; and, the fact remains that his neurological impairment appears to have caused additional debilitation since 2007.  For example, his representative pointed out that the Veteran worked extensively with his hands as a slot machine mechanic prior to becoming too disabled to work and has never been trained for an office environment.  The Veteran's disability impairs his ability to lift and his coordination his hand and foot on the left side. 

At a May 2011 VA examination, the examiner noted that the Veteran presently experiences residual weakness on his left side along with pains or paresthesias in his upper left extremity and left upper torso.  The VA examiner concluded that the Veteran's disability would cause problems with lifting and carrying, difficulty reaching, decreased strength in the upper extremity, decreased strength in the lower extremity, and pain.  In terms of the Veteran's daily activities, the Veteran cannot use the left hand for anything that requires coordination or strength, cannot drive a clutch-type motor vehicle, cannot reliably lift his left leg when walking up steps and must manually lift it sometimes, and has difficulty walking on uneven or slippery surfaces.  

The examiner did not specifically opine on the Veteran's ability to obtain or maintain employment; however, this is a legal determination for the adjudicators rather than a medical determination for the examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013)("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner").  The Board concludes that the limitations the examiner describes are inconsistent with the ability to perform the Veteran's past work, which required extensive work with both of his hands.  Further, the Veteran's disability greatly limits his ability to perform the tasks required for sustained employment in his field.  

In summary, the Veteran's severity and frequency of the Veteran's symptoms cause significant occupational impairment.  The evidence, which includes the Veteran's competent and credible statements, as well as the VA examiner's assessment as to the severity of the neurological impairment supports the claim.  The Veteran's statements as to the physical limitations of the left side of his body are supported by the VA examiner's findings.  The examiner confirmed the severity of the service connected disability and agreed that the Veteran's ability to work was significantly limited given his work history and level of education.  All of the Veteran's work experience involves physical labor, which he is no longer able to perform effectively; and he has no training in any type of sedentary employment.  There is no evidence to the contrary.  Therefore, the Board resolves all doubt in favor of the Veteran and finds that a TDIU is warranted.   

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

Given these findings, the Board concludes that the Veteran is unemployable due to his service-connected neurological disability.  All doubt has been held in the Veteran's favor.  See Gilbert, 1 Vet. App. 49, 53-56 (1990).


ORDER

A TDIU is granted, subject to the law and regulation governing the payment of monetary benefits.  



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs



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