Citation Nr: 1316356 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 01-08 533A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU), prior to October 4, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to February 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case was previously before the Board in August 2012, when it remanded the Veteran's claim for additional evidentiary development-including a VA examination. The requested action was taken, and the case has since been returned to the Board for adjudication. Following the October 2012 VA examination, the Appeals Management Center (AMC) sua sponte awarded the Veteran increased ratings for many of his service-connected disabilities. His overall rating is now 100 percent, which renders his TDIU claim moot for the timeframe beginning October 4, 2012. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. The Veteran had a high school education, and was self-employed throughout his life as a farmer. 2. Prior to October 4, 2012, the Veteran's was service-connected for coronary artery disease, rated 60 percent disabling; diabetes mellitus, rated 20 percent disabling; peripheral neuropathy of the right lower extremity, rated 10 percent disabling; peripheral neuropathy of the left lower extremity, rated 10 percent disabling; PTSD, rated 10 percent disabling; diabetic retinopathy, rated 10 percent disabling; and erectile dysfunction, rated noncompensable. His combined rating was 80 percent. 3. Due to his service-connected disabilities, the Veteran was unable to obtain or retain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Legal Criteria Under VA laws and regulations, a total disability rating based on individual unemployability may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Furthermore, a total disability rating may be assigned where the combined rating for a veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, 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 ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). Analysis Preliminarily, effective October 4, 2012, the Veteran's combined rating was 100 percent. The Board notes that a TDIU rating contemplates that the schedular rating is less than total. 38 C.F.R. § 4.16(a). Because VA determined that the Veteran's combined rating for his service-connected disabilities is 100 percent beginning on October 4, 2012, the claim for a TDIU during that timeframe is rendered moot. Prior to October 4, 2012, however, the Veteran was in receipt of service connection for coronary artery disease (60 percent), diabetes mellitus (20 percent), peripheral neuropathy of the right lower extremity (10 percent), peripheral neuropathy of the left lower extremity (10 percent), PTSD (10 percent), diabetic retinopathy (10 percent), and erectile dysfunction (noncompensable). His combined rating was 80 percent. Accordingly, prior to October 4, 2012, the Veteran met the threshold schedular criteria for TDIU under 38 C.F.R. § 4.16(a). The question thus becomes whether these disabilities, in and of themselves, preclude the Veteran from securing or following a substantially gainful occupation. In this regard, the Board has considered the Veteran's educational and employment background. In his May 2007 application, he reported four years of high school, but did not have any additional vocational education or training. He stated that he has always been self-employed as a farmer, and he was last able to work in 2005. The Veteran asserted that due to worsening service-connected disabilities, he was no longer capable of performing the required tasks to do so. Prior to filing for service connection, the Veteran underwent VA examinations in October 2006. During these examinations, the Veteran was not found to be unemployable. He reported difficulty with standing, climbing, and walking due to his peripheral neuropathy of the lower extremities. With respect to occupational activities, the examiner indicated that the Veteran's peripheral neuropathy caused him to be unable to climb ladders or other farm equipment, and he could not walk long distances without frequent rest stops. The examiner described his peripheral neuropathy as causing significant effects on his occupational activities due to decreased mobility, decreased strength, and lower extremity pain. His usual occupation was listed as self-employed farming. The VA psychiatric examination revealed a diagnosis of PTSD, but the examiner found no occupational or social dysfunction related to his PTSD symptoms. The Veteran underwent a VA heart examination in September 2008, at which time he was diagnosed as having coronary artery disease, myocardial ischemia in mid-distal anterior left ventral wall, angina, and status-post stent placement. The examiner did not indicate whether the Veteran's heart disabilities caused him to be unemployable. When asked what is the Veteran's general occupational effect, the examiner merely indicated he was not employed. He found, however, that the Veteran's heart disability severely impacts his ability to do chores or participate in recreational activities; it prevents exercise and sports, causes mild impact with shopping and traveling; but otherwise does not impact his activities of daily living. In a January 2010 decision from the Social Security Administration (SSA), the Veteran was awarded Social Security Disability (SSD) benefits related to his coronary artery disease, diabetes mellitus, hypertension, peripheral neuropathy, dyslipidemia, and myocardial infarction. The SSA judge found that the Veteran has not engaged in substantial gainful employment since July 1, 2008. During an August 2011 VA examination, the Veteran indicated that he last worked in 2008 and retired due to a physical problem. He indicated that he began receiving SSD benefits in 2010. The psychiatrist indicated that the Veteran's PTSD does not play a role in the Veteran's retirement as it is due to his service-related medical conditions. In another VA examination dated in August 2011, the examiner indicated that the Veteran retired from a private company in 2008. The examiner indicated that the Veteran's ischemic heart disease, diabetes mellitus, and bilateral sciatic neuropathy had no effect on his usual occupation. Noted was the Veteran's history of increased shortness of breath, fatigue, and bilateral foot pain due to these service-connected disabilities. The examiner opined that considering the stable nature of the Veteran's disabilities, they would not inhibit him from seeking sedentary employment. Regarding his retinopathy, the eye examiner indicated that the Veteran is doing well with no visual impairment. In a December 2011 letter from the Veteran's treating physician at the VA Community Based Outpatient Clinic, he opined that the Veteran is unemployable due to his chronic medical conditions. He did not, however, specify which medical conditions cause the unemployability. Following the Board's August 2012 remand, the Veteran was provided a comprehensive VA General Medical Examination in October 2012 to determine whether his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. The examiner indicated that in addition to the Veteran's service-connected disabilities, he has nonservice-connected moderately severe restrictive airway disease that impacts his employability. With respect to his diabetes mellitus, the Veteran is treated with a restricted diet, and insulin injections. He is restricted in his activities inasmuch as he should not perform strenuous occupational or recreational activities to avoid hypoglycemic episodes. In addition, he has diabetic peripheral neuropathy, diabetic nephropathy/renal dysfunction, and history of diabetic retinopathy. He reported progressive loss of strength attributable to his diabetes mellitus. With respect to his heart problems, the Veteran was noted to have a history of myocardial infarction and current atherosclerotic cardiovascular disease, secondary to his diabetes mellitus. The examiner indicated that the Veteran had peripheral neuropathy of the bilateral lower extremities that was moderately severe in both feet. The examiner described the Veteran's symptoms of his service-connected disabilities in detail. He indicated that the Veteran's diabetes mellitus caused difficulty in his most recent job (that he left in 2008) because of unsafe driving worries and the pressure of the job. The examiner indicated that the Veteran is unable to engage in employment that required repeated lifting and manual labor due to his fatigue and dyspnea caused by his coronary artery disease and diabetes mellitus. Finally, the Veteran experiences difficulty walking for long periods of time due to his diabetes neuropathy. For these reasons, the examiner opined that the Veteran's service-connected disabilities did not prevent him from being employed in a totally sedentary job. The examiner related that the Veteran would be able to work in a job such as answering a telephone, filing papers, or greeting customers. The Veteran indicated that he has never done that sort of job. In February 2013, the Veteran was afforded a VA eye examination during which he was diagnosed as having cataracts (not service connected) and decreased visual acuity with a history of diabetic retinopathy. The examiner indicated that the Veteran had a history of retinopathy, but there was no evidence of any current manifestations of it. The examiner opined that the Veteran's mild decrease in acuity and cataract level would bother him driving at night, but he could perform most sedentary and even physical tasks. The evidence of record establishes that the Veteran was, in light of his educational and occupational attainments, rendered unable to obtain or retain substantially gainful employment due to his service-connected disabilities prior to October 4, 2012. The competent lay and medical evidence of record amply demonstrates that his coronary artery disease, diabetes mellitus, and peripheral neuropathy severely limited his mobility, stability, endurance, and strength, which prevented him from profitably pursuing his former work as a farmer. Moreover, the physical disabilities prevented following any employment which required more than a minimal physical capacity. The October 2012 VA examiner opined that the Veteran would have been physically capable of performing the occupational tasks associated with a sedentary job, such as office work, answering phones, filing papers, or greeting customers. However, the realistic chances of him obtaining and retaining employment must also be considered in light of his mental capabilities. Additionally, the Veteran indicated that he had no experience with office work-related tasks. Consideration of employability should be a practical matter. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). The record reflects that the Veteran had always been a farmer. He had only a high school education, and no vocational training. In other words, he lacked any practical or job skills which could be transferred to any likely form of sedentary employment. Theoretically, some functions within his basic capabilities could be discovered; however, these functions do not add up to any reasonably discoverable employment. Such isolated basic tasks of which he may have been capable represented, at best, marginal employment. The October 2012 VA examiner additionally failed to fully discuss the actual limitations imposed upon the Veteran, and hence provided inadequate reasons and bases for his finding that the Veteran was employable. Assignment of an evaluation under the Schedule is the responsibility of the finder of fact, not the examiner. The adjudicator is charged with interpreting the competent and credible evidence of record as whole and reconciling such to accurately reflect the disability. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2. While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator. As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder. Further, it appears that in requiring "definitive evidence" of unemployability, the October 2012 VA examiner has failed to apply the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. He does not bear the burden of proof. Accordingly, entitlement to TDIU is warranted. The preponderance of the evidence establishes that this Veteran, given his occupational history and educational level, was unable to obtain or retain substantially gainful employment due to his physically limiting service-connected disabilities prior to October 4, 2012. ORDER Entitlement to a TDIU, prior to October 4, 2012, is granted. ______________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs