Citation Nr: 1313133 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 11-31 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from October 1968 to May 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's claim for a TDIU. The Veteran testified in a video conference hearing before the undersigned Veterans Law Judge in March 2013. A transcript of the hearing is in the Veteran's file. FINDINGS OF FACT 1. The Veteran is currently service-connected for seven disabilities: type II diabetes mellitus; bilateral peripheral neuropathy of the lower extremities; bilateral peripheral neuropathy of the upper extremities; tinnitus; and bilateral hearing loss. The Veteran's combined disability rating is 70 percent. 2. The Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1154, 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. Entitlement to a TDIU A TDIU rating 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. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. The Veteran is currently service-connected for seven disabilities: type II diabetes mellitus, rated as 20 percent disabling; peripheral neuropathy of the bilateral lower extremities, rated as 20 percent disabling for each extremity; bilateral peripheral neuropathy of the upper extremities, rated as 10 percent disabling for each extremity; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensably disabling. The Veteran has a combined rating of 70 percent. As his peripheral neuropathy of the bilateral lower and upper extremities is secondary to his diabetes, they share a common etiology and are considered together for the purpose of establishing one 40 percent rating. Id., § 4.16(a). The Veteran thus meets the schedular criteria. The Veteran's April 2010 claim reflects that he repaired jewelry and watches and performed other related tasks. He last worked in June 2007. At his March 2013 hearing, the Veteran described the impact that his service-connected disabilities have on his employment. He stated that he has no feeling in his hands or his legs from his knees down. He stated that he cannot sit for long, and that he cannot work as a jeweler as he once did. The Veteran underwent a VA examination in October 2011. The examination revealed that the Veteran is absent light touch sensation in his hands and fingers and in his feet and toes. He was noted to suffer from mild incomplete paralysis in both his upper and lower extremities. The examiner acknowledged that the Veteran's diabetes and its complications impact his ability to work, noting that the Veteran's sense of touch is diminished and, in light of his occupation as a jeweler, that small objects are difficult for him to handle. The examiner also stated, however, that the Veteran is diagnosed as suffering from multiple sclerosis (MS), and that "there is some overlap of both diabetic peripheral neuropathy and his MS in his total function." The examiner stated that she was not able to separate the complexity of the Veteran's neurological symptoms without resorting to speculation. In his March 2013 hearing, however, the Veteran argued that previous VA treatment records show that it is his diabetic peripheral neuropathy that leads to his neurological symptoms; not his MS. The evidence supports this contention. In a March 2010 VA treatment record, a VA doctor noted that the Veteran suffered from sensory peripheral neuropathy, and that his "MS does not appear to provide significant contribution to his symptoms." A subsequent March 2012 VA treatment record makes the same findings, noting that his neurological problems are related to his extremity peripheral neuropathy, as 2010 EMG testing revealed that his MS did not contribute to his symptoms. When the October 2011 examination is read in concert with the VA treatment records, it is clear that the Veteran's neurological problems in his bilateral upper and lower extremities are attributable to his service-connected disabilities and not his non-service connected MS. It is further clear that the Veteran cannot work as a jeweler as he once did and, given his testimony and the objective evidence of record, it is difficult to imagine him performing even sedentary work. The evidence demonstrates that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation and a TDIU is warranted. ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs