Citation Nr: 1318327 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 06-39 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to all service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to June 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). This decision granted claims for service connection for diabetes mellitus, type II and denied claims for service connection for peripheral neuropathy and a heart condition (the denied issues were later granted as well). Eventually, the initial ratings assigned were appealed, and in the course of those appeals a TDIU claim was raised via Rice v. Shinseki, 22 Vet. App. 447 (2009). (See July 2010 Board remand.) The Veteran had a hearing with a Decision Review Officer (DRO) in January 2007 and a hearing with the undersigned in March 2010. Transcripts of the testimony have been associated with the claims file. The Board remanded the case to the RO, via the Appeals Management Center (AMC), in July 2010, April 2011, and June 2012. FINDINGS OF FACT 1. The Veteran is currently service-connected for: peripheral neuropathy of the left upper extremity (30 percent disabling); peripheral neuropathy of the right upper extremity (20 percent disabling); peripheral neuropathy of the bilateral lower extremities (20 percent disabling each); diabetes mellitus, type II (20 percent disabling); ischemic heart disease or IHD (currently 10 percent disabling); residual scars from IHD and erectile dysfunction (noncompensable). His combined disability evaluation is 80 percent. 2. Resolving all doubt in the Veteran's favor, the combined disabilities have been shown to prevent him from obtaining and maintaining all forms of substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for assignment of a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.3, 4.7, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA In this decision, the Board grants entitlement to a TDIU. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000 is necessary. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). TDIU The Board finds the evidence is in equipoise and that a total disability rating for individual unemployability (TDIU) is warranted in this case because although some evidence appears to show the service-connected disabilities do not prevent sedentary work, the Veteran has never performed such work. Also, the record lacks sufficient support to show the combined disabilities do not impact employability. This claim was initially part of the Veteran's now resolved increased ratings appeal. In Rice, 22 Vet. App. 447, the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, the Veteran essentially contended that he was unemployable at the January 2007 decision review officer (DRO) hearing (Transcript, p 5). Total disability will be considered to exist 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 (2012). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a) (2012). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2012). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. See 38 C.F.R. § 4.16(a) (2012). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, in certain circumstances multiple disabilities will be considered to be one disability; this includes: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable and disabilities affecting a single body system (examples are orthopedic, digestive, respiratory, cardiovascular-renal, and neuropsychiatric disabilities). Id. Here, the Veteran's schedular rating is 80 percent; he is service connected for peripheral neuropathy of the left upper extremity (30 percent disabling); peripheral neuropathy of the right upper extremity (20 percent disabling); peripheral neuropathy of the bilateral lower extremities (20 percent disabling each); diabetes mellitus, type II (20 percent disabling); IHD (currently 10 percent disabling); residual scars from IHD (noncompensable) and erectile dysfunction (noncompensable). The peripheral neuropathy of the extremities is related to the diabetes and each these disabilities affect a single body system. As a result they are considered to be one disability under § 4.16(a). The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). The central inquiry is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For a veteran to prevail on a TDIU claim, it is necessary that the record reflect some factor which takes his or her case outside the norm of other such veterans. Van Hoose, 4 Vet. App. at 363, citing 38 C.F.R. §§ 4.1, 4.15. The assignment of a rating evaluation is itself recognition of industrial impairment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the appellant can find employment. Van Hoose, 4 Vet. App. at 363. Section 4.16(a) states: "Marginal employment shall not be considered gainful employment." In Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), the United States Court of Appeals for Veteran's claims (Court) noted that the ability to work sporadically or just a few hours a day was not substantially gainful employment. In that case, the Veteran maintained part-time work. Id. When the claim is in equipoise, the reasonable doubt rule is for application. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Veteran has essentially contended that he became unemployable when his licenses (pilots and commercial driver's) were revoked because he became insulin dependent due to his service-connected diabetes. (See January 2007 DRO hearing.) Ever since he was diagnosed with heart problems in September 1998, he has not been able to fly. (Transcript, p 2.) At the time of the DRO hearing, he was working part-time for a recreational vehicle (RV) dealer cleaning campers. (Transcript, p 3.) He also stated he could not get or maintain a commercial driver's license (CDL) because of diabetes. (Transcript, p 5.) He stated he used to drive a semi-truck and now he could not even drive a school bus. Id. In July 2007, the Veteran filled out an adult function report for the Social Security Administration (SSA). He stated that he generally could perform activities of daily living, but was not often able to finish tasks or follow written instructions. In another disability report, undated, the Veteran stated he was unable to work due his conditions (heart, diabetes mellitus, a mini-stroke, a herniated disk, and neuropathy in hands and feet). He stated he became disabled in October 2006, which was also when he was laid off. His past jobs were as a firefighter (from December 1973 to March 1998) and as a pilot (1978 to 1998). In 1999, he started working maintenance on trailer homes and stopped in October 2006. In this last position, he made $9.80 an hour working seven hours a day four hours per week. In his job as a firefighter, he was a supervisor and performed all typical duties of that job. In March 2010, the Veteran stated at his Board hearing that he had a mini-stroke in March 2007 (Transcript, p 3). He had been a commercial pilot and was not able to fly after his medical issues began; he had not flown in twelve years (Transcript, p 4). His wife stated that he had a lot of trouble at night with his neuropathy and he had trouble controlling his blood sugar (Transcript, p 6). She mentioned he was no longer able to do simple things like hooking up a washer/dryer. (Transcript, p 15.) She believed his thought processes were affected. Id. She stated that he tried to work in an auto parts store and he had a difficult time doing that. Id. The Veteran mentioned he tried to volunteer by reading to children and that was difficult for him. Id. He stated he could drop his grandkids off at school and that was about it. Id. While the Veteran has held various jobs, none of these have been sedentary positions. In addition to the information above, the file shows Veteran's work experience consists of being a medical corpsman in service (see DD 214); an ambulance driver and attendant; a pilot (see September 1971 education application); a firefighter (see November 1977 education application); and a commercial pilot (see November 1978 license). The April 2006 VA examination report showed he had been employed part-time without restrictions at an RV dealership. The evidence regarding disability as it relates to employability shows that the Veteran has multiple service-connected and nonservice-connected disabilities. Although he gave a history of diabetes mellitus since the 1980s (see April 2006 VA examination report), he was not prescribed insulin until later (2004 diabetes care record). He began to experience more serious medical problems, including coronary atherosclerosis and hypertension, in May 1999 (see private hospital discharge record). While an April 2006 VA examination for diabetes mellitus showed that activities were not restricted due to diabetes mellitus and the Veteran was independent in all activities of daily living, the examiner did not address employability. Instead, it was noted that he had retired from firefighting and that there were no effects from diabetes mellitus on his usual occupation. In regard to his heart disease, it was noted that he was capable of lifting 100 pounds, capable of running 5.5 miles per hour or bicycling 13 miles an hour. He was able to play competitive handball. Again, the examiner stated that as he was retired, there were no effects on his usual occupation. He did house and yard work. In January 2007, however, an aviation medical examiner stated that the Veteran's history of diabetes mellitus and coronary artery disease with prior bypass grafting were specifically disqualifying. The Veteran was not capable of qualifying for any class of medical flying certificate. In March 2007, the Veteran was admitted to B. Hospital; the discharge record showed a transient ischemic attack (TIA). In April, Dr. S.B. wrote a letter to the Veteran's primary care doctor. It was explained that the Veteran had multiple stroke risk factors and an episode of right facial weakness and left arm numbness/paresthesias, possibly due to a TIA from either hypertension or an embolic etiology. Other possibilities included a compressive lesion or impingement of vertebral arteries. Memory difficulties were likely due to his depression and obstructive sleep apnea or sleep problems. In July, a private provider noted that since last year the Veteran had worsening dyspnea with exertion; he could no longer wash his car without fatigue. He was unable to lift weights and walked shorter distances more slowly. His hypertension and diabetes mellitus were uncontrolled. Also in July 2007, the Veteran was evaluated by a SSA psychologist. He drove himself to the evaluation and stated that he still had a driver's license, but expected the doctor to take it from him because he still had TIAs (some of which happened while driving). Under educational history, it was noted that he had described school as "hard" and found he often was not smart enough to do what he wanted to do but had average grades and graduated on time. The Veteran stated he quit working part-time two weeks prior at an auto parts store where he put away and delivered parts. He quit partly because he was afraid he might experience a TIA while driving but he also stated he had trouble reading and doing things like washing a car. Psychological and cognitive testing indicated that his poor memory and fine motor skill weaknesses as well as an inability to live independently and manage funds. A SSA functional capacity assessment from August 2007 determined that the Veteran's psychiatric disabilities precluded work and that he would have difficulty sustaining simple, routine tasks for an eight hour day five days a week. A disability determination from the same month showed that the Veteran's primary disability was chronic brain syndrome and his secondary disability was affective disorders. An August 2007 evaluation by a SSA doctor showed there was no evidence of severe cardiac or central nervous system pathology and with better control of diabetes mellitus and blood pressure there should be no undue side effects. In September 2007, the Veteran was evaluated by a clinical neuropsychologist, who noted the current cognitive difficulties. He stated he graduated from high school without a diagnosed learning disability but he always was "slow on exams and slow to learn." The summary noted that he was fairly depressed over his health problems and lifestyle changes. It also noted he stated he was always slow to learn, although this was exacerbated after the TIA. There was also a history of exposure to toxins as a firefighter (he started in the field before certain equipment use was mandatory and widespread). A working diagnostic impression was cognitive disorder, but other things could not be ruled out. It was recommended that he try to pursue new interests to replace his old ones; the suggestion was that he try pursuing vocational rehabilitation in order to obtain a part-time job. Meanwhile, the Veteran was evaluated in 2008 by VA and a private doctor for insurance purposes. The July 2008 VA examination report showed there were no written restrictions with activities for diabetes mellitus. Another VA examination report focusing on neurological issues noted he had no physical limitations of his hands regarding opening doors, jars, driving, etc. He could use tools and perform fine manipulations with the fingers. There was no interference with walking, but his gait was noted to be slow. It was concluded that he suffered from a mild residual of what appeared to be a left-sided cerebrovascular accident. With the number of stroke risk factors, it was impossible to attribute these residuals to the service-connected diabetes mellitus. The April 2008 physician statement of disability for insurance purposes noted the TIA of March 2007. The physician stated that symptoms from the TIA caused him to stop working, although he had other medical problems as well. The Veteran could not return to work due to weakness, memory loss and decreased concentration. His limitations and restrictions were related to cognitive functioning, although he could perform regular daily activities. The Veteran was evaluated in 2010 for VA purposes. The August 2010 VA examination report shows the examiner reviewed claims file. The examiner stated that based on the Veteran's service connected disabilities and disregarding any non-service disabilities, the service-connected diabetes mellitus did not impact his ability to obtain and maintain substantially gainful employment. However, no rational was offered for this opinion and not all current service-connected disabilities were considered at that time because certain issues (peripheral neuropathy and IHD) were not yet granted. Similarly, in the June 2011 VA examiner for neurological disabilities found there were no physical limitations with hands and fingers; he could use tools and perform fine manipulations. However, the Veteran did suffer from nonservice-connected mild stroke residuals. He had a number of stroke risk factors, so was impossible to conclude without resorting to speculation that his stroke was caused by diabetes mellitus. In June 2011, the VA examiner for diabetes mellitus found the Veteran's activities were not restricted and that his diabetes mellitus did not affect daily activities. The examiner did state that diabetes mellitus affected the past occupations of being a truck driver and pilot because he was on insulin; he was unable to continue in these occupations. In September 2012, the Veteran received several new VA examinations; all current service-connected disabilities were considered. To summarize, his scars related to IHD and his erectile dysfunction had no effect on his occupation. IHD affected physical but not sedentary work. Peripheral neuropathy did not affect the ability to do sedentary or physical work. With respect to diabetes mellitus, insulin prevented firefighting and being a pilot, but it did not prevent other physical or sedentary work. No combined opinion addressing the cumulative effect of these disabilities was provided and no rationale was given for the opinions other than the accompanying medical findings. In considering all the evidence, the Board finds it is in equipoise in finding that the Veteran is, for all practical purposes, precluded from substantially gainful employment. Nonservice-connected disabilities are not to be considered under 38 C.F.R. § 4.16(a) and the SSA evidence shows that a nonservice-connected psychiatric or cognitive disability as the basis for the disability finding by that agency. However, even disregarding the psychiatric or cognitive problems, the Board finds the Veteran would not likely be a candidate for sedentary work based upon his employment history, which did not involve any sedentary work over his lifetime. Moreover, there is no evidence to show that he has training or educational background such that he could realistically pursue gainful employment outside of his range of experience, which involves primarily firefighting and flying planes. Additionally, there is evidence that even sedentary work would not be suitable for the Veteran, as he has credibly stated many times that he historically did not perform well in school. His employment record shows he was suited to more mechanical tasks. His wife also testified at the hearing he had difficulty with simple instructions, although the exact reason for that was mixed. Also, combinations of the disabilities were apparently not considered by the examiners, but when the Board looks at the totality of the circumstances, including the combined 80 percent rating, it is apparent that the usual amount of success in the Veteran overcoming the handicap of disabilities would be prevented by the combination and severity of his service-connected disabilities. See 38 C.F.R. § 4.15. Further, even though there was some suggestions of the Veteran being able to do part-time work in the record (see September 2007 neuropsychologist evaluation), such work is likely marginal and not gainful employment. See, Moore (Robert), 1 Vet. App. at 358. The Board finds that when considering work history, the combination of disabilities, severity of the disabilities, and not considering nonservice-connected disabilities, the evidence is in equipoise regarding whether the Veteran is outside the norm of other veterans. Van Hoose, 4 Vet. App. at 363. As the evidence is in equipoise, the benefit of the doubt rule is for application and the claim is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a TDIU is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs