Citation Nr: 1330581 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-36 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which in pertinent part, denied the claims for TDIU benefits and service connection for hypertension. (A November 2010 rating decision granted service connection for hypertension, so that issue is no longer on appeal.) An appeal for a compensable rating for loss of sense of smell had been before the Board in October 2009. The Board remanded the issue, and by a February 2010 rating decision the RO awarded a 10 percent rating, which satisfied the Veteran's appeal and which was the highest schedular rating available for loss of sense of smell. Consequently, that issue is no longer on appeal. REMAND The Veteran's claim for a TDIU was received in September 2009. At that time he claimed that a TDIU was warranted based on his service-connected disabilities. The claim was denied in March 2010 because he did not return a completed Veteran's Application for Increased Compensation Based on Unemployability, VA Form 21-8940. He completed and returned the form in April 2010, claiming that his service-connected insulin-dependent diabetes mellitus and nonservice-connected tarsal tunnel syndrome in his feet prevented him from securing or following any substantially gainful occupation. He indicated that he last worked full time as a driver/dockman/salesman in 2002 and that he completed one year of college. (During an October 2010 VA examination, he reported that he had completed two years of college). In subsequent statements, he asserted that he was unable to work because he could no longer drive commercially due to taking insulin for diabetes. The Board acknowledges that Federal regulation provides that a person is physically qualified to drive a commercial motor vehicle if he has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control. See 49 C.F.R. § 391.41(b)(3). However, the Board also notes that commercial drivers may be granted an intrastate waiver from physical qualification requirements, including insulin-dependent diabetes. See Minnesota Commercial Driver's Manual, Minnesota Department of Public Safety, Driver and Vehicle Service Division, at 12, also at www.dvs.dps.mn.gov. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1) (2013). Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). VA regulations provide that a TDIU may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether there is one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered as one disability. 38 C.F.R. § 4.16(a). Also, disabilities resulting from common etiology or a single accident will be considered as one disability. Id. (Many of the Veteran's service-connected problems are of a common etiology-diabetes. Noted below.) Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the Veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a); see also 38 C.F.R. § 4.19 (2013) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran had previously been awarded service connection for peripheral neuropathy of the right hand, rated as 30 percent disabling; type II diabetes mellitus, rated as 20 percent disabling; peripheral neuropathy of the left hand, and right and left lower extremities, each rated as 20 percent disabling; residuals of a broken nose, rated as 10 percent disabling; eczematous-type dermatitis of the right cheek area, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; loss of smell associated with residuals of a broken nose, rated as 10 percent disabling effective February 2, 2010 and as noncompensable prior to that date; and loss of taste, erectile dysfunction, bilateral sensorineural hearing loss, and hypertension, each rated as noncompensably disabling. With consideration of the bilateral factor, the disabilities combine to an 80 percent rating. See 38 C.F.R. §§ 4.25, 4.26 (2013). Following a March 2011 VA skin diseases examination, according to a March 2011 documented telephone conversation with RO personnel, the examining physician assistant indicated the following: The Veteran's seborrheic dermatitis is a progression of the previously diagnosed eczematous-type dermatitis. However, the rosacea and psoriasis are not progressions as they are distinct diagnoses with separate symptoms. The examiner indicated that the rosacea is at least as likely as not aggravated by the Veteran's diabetes mellitus type 2, as this is a microvascular condition with increased dilation of blood vessels, and the Veteran's microvascular issues have worsened due to the diabetes mellitus type 2. Thereafter, in a March 2011 rating decision, the RO assigned a 60 percent disability rating for seborrheic dermatitis and rosacea (previously evaluated as eczematous-type dermatitis, right cheek area), effective March 4, 2011. As a result, with consideration of the bilateral factor, the service-connected disabilities combine to a 90 percent rating, effective March 4, 2011. Parenthetically, the Board finds the March 2011 physician assistant's conclusion regarding rosacea to be curious. She opined that service-connected diabetes mellitus worsened the Veteran's rosacea, a microvascular condition. The Board finds the conclusion to be unusual because diabetes mellitus, which has caused peripheral neuropathy in the bilateral upper and lower extremities, tends to obliterate microvasculature, while rosacea causes small blood vessels in the skin to dilate. In other words, the diabetic effect is opposite of what occurs with rosacea, making it logically improbable that diabetes aggravates rosacea. Nevertheless, the RO conceded rosacea would be evaluated as a service-connected disability with the Veteran's previously evaluated eczematous-type dermatitis, and the Board will do likewise. In May 2011 correspondence, the Veteran's representative pointed out that a medical opinion regarding the Veteran's ability to secure or follow a substantially gainful occupation was not provided during VA examinations conducted in January 2010 or March 2011. Therefore, a remand is required to arrange for a VA examination to address the combined effect of all of the Veteran's service-connected disabilities and to obtain a medical opinion regarding the effects of his service-connected disabilities on his ability to secure and follow a substantially gainful occupation. Prior to arranging a VA examination, the AOJ should obtain ongoing treatment records from the St. Could VA Medical Center (VAMC) dated from May 2009 to the present and from the Minneapolis VAMC dated from November 2010 to the present. Additionally, the Veteran has recently filed a claim of service connection for lung disease due to exposure to herbicides. This was done in June 2013, but it does not appear that the Agency of Original Jurisdiction (AOJ) has acted on the claim. Because the outcome of such an adjudication may affect the TDIU determination, action should be taken on the claim of service connection. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file ongoing treatment records from the St. Could VAMC dated from May 2009 to the present and from the Minneapolis VAMC dated from November 2010 to the present. 2. The AOJ should take action on the June 2013 claim of service connection for lung disease. All development deemed necessary to adjudicate the claim should be undertaken and a rating decision made with regard to this claim. If the AOJ grants service connection for any disease, a rating should be assigned and the examiner who is asked to conduct the examination with regard to the TDIU claim should be informed of the award. 3. Thereafter, the Veteran should be afforded a VA compensation examination to determine the impact of all his service-connected disabilities on his employability. The claims folder should be made available to the examiner prior to the examination. All pertinent symptomatology and findings must be reported in detail. The examiner should take a detailed history with regard to the Veteran's education, training, and occupational experiences. Based on the review of the claims file and physical examination, the examiner must provide an opinion as to the combined effect of all the Veteran's service-connected disabilities on his ability to obtain or maintain substantially gainful employment. The examiner should consider the Veteran's employment background and education, as well as the Social Security Administration (SSA) records associated with the VA claims file. (Age is not a factor to be considered in the determination.) A complete rationale should be given for all opinions and conclusions expressed. 4. The AOJ must ensure that all requested actions have been accomplished. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, in light of all of the evidence received, the AOJ should readjudicate the issue of entitlement to a TDIU. If the determination is adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC), which includes analysis of additional evidence of record since issuance of the March 2011 SSOC, including the state of Minnesota Commercial Driver's Manual. The SSOC should include detailed reasons and bases for the decision reached. The Veteran and his representative should be provided an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).