Citation Nr: 0813236 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 07-05 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The veteran had active service from April 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In this rating decision, in pertinent part, the RO denied the claim for a TDIU. In a June 2007 statement, submitted in support of the claim for a TDIU, the veteran indicated that his peripheral neuropathy had increased to a point that his medication dosage had doubled and he requested that VA obtain additional treatment records. In light of the favorable determination in the instant decision, the Board finds that there is no need to obtain these records prior to adjudicating the claim. FINDINGS OF FACT 1. The veteran's service-connected disabilities currently have a combined rating of 70 percent, and are from a common etiology; thus, the service-connected disabilities fulfill the schedular rating requirements contained in 38 C.F.R. § 4.16(a). 2. The evidence is at least in equipoise as to whether the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for a schedular TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (2002); 38 C.F.R. §§ 3.102, 3.159, 3.341, 4.15, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act On November 9, 2000, the President signed into law the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. § 3.159(b). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). As discussed in more detail below, sufficient evidence is of record to grant the claim for a TDIU. Therefore, no further development is needed with respect to the veteran's appeal. Law and Regulations A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating 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, 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) also provides that disabilities resulting from common etiology or a single accident will be considered as one disability. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether service- connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16; Hatlestad, supra. Factual Background The veteran contends that he is unable to work due to his service-connected disabilities. The record indicates that the veteran last worked as a store manager and that his employment was terminated involuntary in December 2002 due to his inability to fulfill job requirements. In his notice of disagreement, the veteran reported that he was employed at his last employment for eight and half years and that it was only in the last 6 to 8 months that his physical condition was deteriorating. He wrote that that it was at this time that his peripheral neuropathy began in his feet and hands. He also reported that he was easily fatigued. The veteran wrote that he only had training for labor/mechanical jobs and that because of his neuropathy in this hands, he could not do jobs that require fine motor skills. In addition, the veteran noted that because of swelling in his legs and feet and painkillers for the right foot, he was not able to function efficiently in a full-time job. The veteran is currently service connected for diabetes mellitus (currently evaluated as 20 percent disabling), peripheral neuropathy of the right and left lower extremities (each evaluated as 20 percent disabling), peripheral neuropathy of the right and left upper extremities (each evaluated as 10 percent disabling), and cellulitis with osteomyelitis of the right foot (currently evaluated as 20 percent disabling). All service-connected disabilities are related to the service-connected diabetes - and therefore, the disabilities are of the same etiology. The veteran's combined rating for the service-connected disabilities is 70 percent. See 38 C.F.R. §§ 4.26, 4.27. Therefore, the veteran's service-connected disabilities satisfy the schedular criteria of 38 C.F.R. § 4.16(a). The only remaining question is whether the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The veteran underwent a diabetes mellitus VA examination in September 2003. The examiner found that the veteran had diabetes, which had been recently diagnosed. At that time, the examiner found that the veteran had very minimal (essentially asymptomatic) bilateral neuropathy of the lower extremities. The examiner found that the veteran had no neuropathy of the upper extremities. The examiner opined that the neuropathy of the upper extremities was due to the diabetes, which had been "smoldering" for years. As discussed below, the evidence indicates that the veteran's peripheral neuropathy of the lower extremities has increased in severity since this examination and the veteran has developed peripheral neuropathy of the upper extremities. In a December 2004 VA examination, the veteran was noted to be wearing diabetic shoes at all times, to prevent injuries since he could not feel his toes. The veteran reported that he stumbled a lot when he walked, but there had been no falls. The examiner reported that there was no other interference with walking and the veteran could perform activities of daily living. In a January 2006 VA examination, the veteran's hands were evaluated for disability. The examiner reported that grip/finger strength was intact bilaterally but that deep tendon reflexes were absent throughout. In addition, sensation was decreased to pin and vibration of fingertips and thumb. The veteran had normal dexterity of fingers and thumb. Diagnosis was mild peripheral neuropathy of fingertips. In an effort to determine whether the veteran's service connected disabilities prevented the veteran from obtaining substantially gainful employment, the veteran underwent an August 2006 examination. In the examiner report [diabetes mellitus exam], the examiner noted review of the claims file. The examiner reported that the veteran had onset of diabetes in 2003. The examiner also noted that the veteran had no restrictions of activities due to diabetes. The physical examination revealed decreased vibratory sensation and light filament sensation in the upper and lower extremities, but motor strength was 5/5 in all extremities. The examiner reported that there was bleeding excoriation of the lower legs. He documented that the veteran was wearing hose for lower leg edema. Diagnoses included diabetes mellitus, mild bilateral upper extremity peripheral neuropathy, moderate bilateral lower extremity peripheral neuropathy, and cellulitis with osteomyelitis of the right foot. The veteran is currently service connected for all these disabilities. In addition, the examiner noted that the veteran had nonservice-connected hypertension and erectile dysfunction, along with peripheral edema. The examiner opined that the veteran did not have a nonservice-connected disability which predominately limited the veteran's occupation. The examiner also indicated that he was unable to separate the symptoms of the service connected disabilities from the nonservice-connected disabilities. The examiner opined that the veteran's physical limitations were as follows: no lifting over 25 pounds, no repetitive lifting from 15 to 25 pounds, and no more than 6 times per hour; no climbing ladders or operating a forklift or machinery; and no prolonged standing or walking and no more than 15 minutes total of combined standing or walking per hour. In a separate examiner report [peripheral nerves exam] completed at the same time, the examiner documented that the veteran reported first having early neuropathic symptoms of numbness and tingling intermittently in 2003. The veteran denied functional loss. The veteran did report tingling of fingers stopping at the hands, but there was no pain. Testing showed normal range of motion of all effected joints. Analysis The Board finds that entitlement to a TDIU is warranted. Review of the claims file indicates that the veteran was given a confirmed diagnosis of diabetes after termination of the veteran's last employment. In addition, the claims file includes the veteran's claim that the symptoms of peripheral neuropathy began during his last employment. In the most recent examination, however, completed in August 2006, he indicated that these symptoms began in 2003, after termination from his last employment. Further, the August 2006 examination report includes some contradictory evidence regarding the impairment that the veteran's service-connected disabilities cause. Notwithstanding the foregoing, the record shows that the veteran was unable to continue with his employment because of disability and in considering the limitations noted by his former employer and the physical limitations due to his service connected diabetes with its multiple complications, it becomes apparent that he is not able to perform substantially gainful employment consistent with his work experience. As noted above, in the August 2006 examination, the examiner outlined the limitations that can be attributed to the veteran's service-connected disabilities and he indicated that he could not separate the limitations of the veteran's service-connected disabilities form the nonservice- connected disabilities, which included severe limitations of the veteran's ability to lift, walk and stand. In light of the veteran's past employment and his contentions regarding his lack of training for sedentary work and after resolving all reasonable doubt in his favor, it is the judgment of the Board that the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. Based on this finding and the veteran's disabilities meeting the schedular requirements set forth in 38 C.F.R. § 4.16(a), the Board finds that entitlement to a TDIU is warranted. 38 C.F.R. §§ 3.102, 3.341, 4.15, 4.16. ORDER Entitlement to a TDIU is granted. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs