Citation Nr: 1313162 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 09-03 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to November 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The claim was remanded by the Board in a March 2011 decision, primarily for the obtainment of a contemporaneous examination to evaluate the effects of the Veteran's service-connected disabilities on his ability to obtain substantially gainful employment. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. The Veteran's service-connected disabilities are chronic sinusitis and allergic rhinitis with pharyngitis, rated as 30 percent disabling; Parkinson's disease, rated as 30 percent disabling; bilateral cataracts associated with diabetes mellitus, rated as 20 percent disabling; allergic conjunctivitis associated with diabetes mellitus, rated as 10 percent disabling; peripheral neuropathy of the left and right lower extremities, each rated as 10 percent disabling; coronary artery disease, rated as 10 percent disabling; diabetes mellitus, rated as 10 percent disabling; post-inflammatory hyperpigmentation of the ankle area, and dorsal of the feet, rated as noncompensable; and erectile dysfunction associated with diabetes mellitus. The combined disability rating is 80 percent. 2. The evidence is in equipoise as to whether the Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the favorable decision to grant the Veteran's claim, any deficiency as to VA's duties to notify and assist pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is rendered moot. The Veteran's service-connected disabilities are chronic sinusitis and allergic rhinitis with pharyngitis, rated as 30 percent disabling; Parkinson's disease, rated as 30 percent disabling; bilateral cataracts associated with diabetes mellitus, rated as 20 percent disabling; allergic conjunctivitis associated with diabetes mellitus, rated as 10 percent disabling; peripheral neuropathy of the left and right lower extremities, each rated as 10 percent disabling; coronary artery disease, rated as 10 percent disabling; diabetes mellitus, rated as 10 percent disabling; post-inflammatory hyperpigmentation of the ankle area, and dorsal of the feet, rated as noncompensable; and erectile dysfunction associated with diabetes mellitus. The combined disability rating is 80 percent. The Veteran is claiming entitlement to TDIU. In a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in September 2008, he indicated that he had last worked full time in 2003 as the state manager for the Coors Brewing Company in sales. He reported that he had completed two years of college. Social Security Administration (SSA) records reflect that the Veteran was awarded benefits in May 2003 for nonservice-connected disorders of the back (discogenic and degenerative and mood disorders. The disability began in December 2002. In connection with this claim, several private physicians submitted medical statements indicating that the Veteran was unemployable due to various disabilities. Specifically, J.N., M.D., submitted a statement in February 2008 that the Veteran had a history of severe fibromyalgia, diabetes mellitus, liver disease, and atherosclerotic cardiovascular disease. According to Dr. J.N., the Veteran was disabled and unable to work largely secondary to his fibromyalgia. However, he did include that the Veteran had a history of diabetes mellitus, for which he was also service-connected. Additionally, in April 2009, T.E.L., M.D., submitted a medical statement in connection with the Veteran's claim. The doctor indicated that the Veteran's condition included a diagnosis of lupus, fibromyalgia, neuropathy, diabetes, and bipolar disorder, which rendered him totally and permanently disabled. In March 2011, the Board remanded the claim to obtain additional treatment records and to secure an examination/opinion to evaluate the effects of the Veteran's service-connected disabilities on his ability to obtain substantially gainful employment. Numerous VA examinations were conducted in March 2011. Upon otolaryngology exam, it was noted that the Veteran continued to have occasional (a few times per year) sinus infections which resolved with antibiotics. On eye exam, his conjunctivitis and dry eye syndrome were improved. His cataracts were described as stable. As for the Veteran's additional service-connected conditions, his diabetes mellitus was diet controlled and had no effect of his ability to be gainfully employed. The examiner also opined that his service-connected condition of coronary artery disease had no effect of his ability to work. It was noted, however, that his peripheral neuropathy of the bilateral upper and lower extremities did affect his ability to work in that he had decreased mobility and manual dexterity. The Veteran also reported a burning sensation in the feet and hands limiting his mobility as well as restless feeling all of the time but especially at nite. Residuals of diabetic neuropathy included decreased light touch, vibratory sense, position sense, or pain sensation, and increased the Veteran's chance for personal harm (be it from a fall, laceration, or burn injury) if performing such tasks. Hand neuropathic symptoms might be worsened if a repetitive wrist motion task/vibratory tool was required (e.g., typing or air gun, etc.). If diabetic neuropathy was significant enough to reduce position sense, fall potential increased warranting avoidance of using a ladder or climbing. In the examiner's opinion sedentary work can be performed but tasks which require manual dexterity may take longer to perform, be performed incorrectly, or endanger the health of the employee or co-worker if safety sensitive equipment is being utilized. In this veteran peripheral neuropathy bilateral upper and lower extremities limit his both physical and sedentary employability [sic]. Additional treatment records, dated subsequent to the March 2011 VA evaluations have been added to the claims file. These records show treatment for conditions associated with service-connected conditions. The Board notes that service connection for Parkinson's disease was granted in a January 2012 rating decision, that the symptoms of the disease are also discussed in more recent records. Such is significant because the Veteran is not service connected for peripheral neuropathy of the upper extremities; but, as discussed below, the record now shows that the symptoms of the Veteran's Parkinson's disease includes dysfunction of the upper extremities. In October 2010, the Veteran exhibited several clinical manifestations of Parkinsonism, including imbalance/falls, tremor, mild cogwheel rigidity, hypophonia, micrographia, decreased facial expressivity, and slowed psychomotor speed. The symptoms suggestive of cerebellar dysfunction included dysmetria with overshoot, sway and retropulsion on Romberg, and poor pursuit. There was also evidence of impaired executive function, slowed processing speed, inattention, and memory problems. Signs of Parkinson's with resting tremor and rigidity of the upper extremities were observed on examination in February 2011. Records from November provided the first diagnosis of Parkinson's disease and shows that the Veteran was being medicated with Carbidopa. In December 2011, it was noted that medications that the Veteran had been taking for his Parkinson tremors had not helped. His complaints included tremor of the bilateral upper extremities (right more than left) and a vocal and neck tremor. He sometimes cut his neck when shaving due to his shaking. He denied trouble getting up from chairs and denied any bulbar symptoms of dysarthria, dysphagia, or diplopia. On neurological exam, his tremors were noted. There was also mild impairment of rapid alternating hand movements and fine finger dexterity, including finger taps. There was severely impaired sensation in stocking distribution to pinprick, vibration, and proprioception. The Veteran was stooped and shuffled with decreased arm swing on the right. In May 2012, it was noted that the Veteran had been seen numerous times for regulation of medications to control his tremors. In June 2012, he was seen again for this problem as he was unable to tolerate the recently prescribed higher dose of his medication. Still, the Veteran thought his tremors were improving. In September 2012, it was noted that his heart disease was stable with the taking of medications. His peripheral neuropathy was improving with medication, and he continued to take two medications for his Parkinson's disease tremors. When seen in October 2012, the Veteran presented with a one week history of swelling of the bilateral lower extremities with more on the right with area of significant ecchymosis and redness spreading from his shin down towards the feet. Both feet were discolored and mottled, with the appearance of decreased pulsation in pedal pulses, bilaterally more on the right than on the left, and he was started on oral antibiotics and set up for arterial Doppler on an outpatient basis. Following exam, the examiner's impressions included cellulitis of bilateral lower extremities, severe peripheral neuropathy, peripheral vascular disease, and diabetes. Entitlement to a TDIU requires evidence of service-connected disability so severe that it is impossible for the veteran in particular, or an average person in general, to follow a substantially gainful occupation. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Marginal employment is not considered substantially gainful employment. Id. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran has many service-connected conditions associated with diabetes mellitus. The disorders include bilateral cataracts and peripheral neuropathy which stem from a common etiology and combine to a rating (40 percent) that satisfies the statutory requirements for TDIU. See 38 C.F.R. § 4.16(a). The private physicians' statements are not convincing that the Veteran is unemployable due to service-connected disabilities alone. Although it was their opinion that the Veteran was unemployable (see statements from 2008 and 2009), nonservice-connected disabilities to include fibromyalgia and bipolar disorder were listed as disabilities affecting the Veteran's ability to work. It is specifically noted that when the Veteran quit working in 2003, it was not due to any of his service-connected conditions. However, many years later, at the time of the 2011 VA examination, the Veteran did have symptoms associated with several of his service-connected disorders as detailed above. The examiner noted that while the Veteran could be employed in a sedentary position, he did have problems with dexterity which could affect his ability to perform tasks efficiently and correctly. Medical records added to the record after the exam indicate continued treatment associated with service-connected conditions of diabetes mellitus and tremors associated with Parkinson's disease. In October 2012, the Veteran was being treated for symptoms related to several of his service-connected conditions, to include cellulitis of the bilateral lower extremities. Also noted were severe peripheral neuropathy and diabetes mellitus. It could be argued that evidence shows that the Veteran could be employable if he performed non-manual labor in an isolated environment. However, the addition of Parkinson's disease, and its related symptoms, to the list of the Veteran's service connected disabilities is significant. While not necessarily contemplated with respect to the Veteran's employability, his Parkinson's disease is shown to adversely affect his ability to ambulate and conduct fine motor activities. There is also evidence of impairment of cognitive functioning. Consideration must also be given to the Veteran's education is limited to two years of college, and his previous employment (sales), which more than likely involved some travel to visit clients, would be extremely difficult with the current limitations caused by symptoms associated with diabetes mellitus in the upper and lower extremities. At the bare minimum, the Board finds that the evidence of record as a whole is in equipoise as to whether the Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. Resolving doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted. ORDER Entitlement to a TDIU is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs