Citation Nr: 1335598 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-20 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES Entitlement to a total evaluation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. When this case was before the Board in December 2012, it was decided in part and remanded in part. It is now before the Board for further appellate action. The issues of service connection for glaucoma of the left eye and anemia as well as new and material evidence for the issue of service connection for hypertension have been raised by the record in a June 2011 statement but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. In addition, the Veteran was found to have upper extremities diabetic peripheral neuropathy during the April 2013 Diabetic Sensory-Motor Peripheral Neuropathy examination. This issue has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran is in receipt of VA disability benefits for chronic uveitis of the right eye and secondary glaucoma, evaluated as 30 percent disabling from April 20, 2007, and as 50 percent disabling from December 8, 2008, diabetes mellitus, type II, with erectile dysfunction, evaluated as 20 percent disabling from November 26, 2002, peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling from April 20, 2007, peripheral neuropathy of the left lower extremity, and evaluated as 10 percent disabling from April 20, 2007. He is service-connected for erectile dysfunction, but it is evaluated as noncompensable. His combined evaluation is 60 percent from April 20, 2007 and 70 percent from December 8, 2008. 2. The Veteran is precluded from substantially gainful employment solely as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). As the Board has determined that a TDIU is warranted, no discussion of the VCAA is necessary. Analysis It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2013). A finding of total disability is appropriate "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(a)(1), 4.15 (2013). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a)(2013). The Court noted the following standard announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the Veteran need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.34, 4.16, 4.19. A total disability rating for compensation 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, provided that, 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 disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2013). The Veteran filed a claim for individual unemployability which was denied by the RO in a November 2010 decision. Since that time, in January 2011, the Veteran filed another claim for total disability based on individual unemployability. He reported that he had been "discharged" from the United States Postal Service (USPS) in December 2010 due to his multiple disabilities. The Veteran attached an October 2010 letter of warning from USPS regarding unscheduled absences from August 2010 to October 2010. The letter explained that he would be discharged from USPS if he failed to correct the deficiencies. The Veteran also submitted a VA Form 21-8940 showing that he had worked in maintenance for USPS in Puerto Rico from January 1994 to 2010. The form also noted that the Veteran had a high school diploma and no further education or training. The medical evidence of records shows that the Veteran's disabilities have worsened since 2007. In an October 2007 VA peripheral nerve examination report, the Veteran noted that he worked for USPS in maintenance for the last 10 to 20 years and that he had lost no days from work in the last 12 months period. The examiner reported that his peripheral neuropathy had no significant effects on his occupation or usual daily activities. Reports of VA diabetes mellitus and eye examinations dated in October 2007 and November 2007, respectively, reflect that the Veteran was employed full-time for the USPS. He reported missing three weeks of work in the last twelve months due to medical appointments and symptoms of his diabetes mellitus. The examiner reported that there were no significant effects on his occupation or usual daily activities. Report of VA diabetes mellitus examination dated in October 2009 reflects that the Veteran worked full-time for the USPS and that he had lost three weeks of work in the last twelve months due to uncontrolled hypertension (nonservice-connected) and medical appointments. The examiner commented that the Veteran's diabetes mellitus and complications would have a significant effect on his occupation due to decreased upper and lower extremity strength. The Veteran stated that he could not work because he had to stop to prepare meals due to episodes of hypoglycemia and that he had muscles cramps that caused him to stop working until he obtained relief. During a May 2011 general VA examination, the Veteran reported that he last worked in December 2010 in maintenance for USPS and that he quit his job due to pressure from his supervisor due to multiple absences secondary to his medical conditions of diabetes mellitus and neuropathy. Effects on his occupation included decreased strength of upper extremities, decreased strength of lower extremities and pain. It should be noted that the Veteran is not service-connected for his neuropathy of his upper extremities. The examiner opined that the Veteran was "not unemployable" as he would be able to perform part-time jobs, such as clerical type work with reasonable accommodations in term of his diabetic diet. He could also be self employed and work at home. The Veteran was afforded a VA Genitourinary examination in May 2011. The examiner opined that the Veteran's service-connected erectile dysfunction had no effect on his employment. In July 2011, the Veteran was afforded a VA eye examination. The examiner opined that the Veteran had no functional impairment and the employment activities that should be limited are working with heavy machinery and as a chauffeur. If more thorough discussion on the employment activities is required, an Occupational Medicine Specialist Evaluation is highly recommended. In the Veteran's November 2011 Form 9, the Veteran reported that he quit his job due to taking insulin twice a day and his restricted diet as well as because regulation of activities were required. The Veteran also noted having vision problems and mobility problems. He explained that he had difficulties performing physical activities like walking, running more than 40 feet. Pursuant the Board's directive in the December 2012 remand, the AMC provided the Veteran with several VA examinations for his service-connected disabilities in April 2013. In the April 2013 VA eye examination, the examiner copied the exact opinion provided in the July 2011 VA eye examination conducted by another examiner. The opinion notes that the Veteran has no functional impairment and the employment activities that should be limited are working with heavy machinery and as a chauffeur. The examiner further noted that if a more thorough discussion on employment activities is required, an Occupational Medicine Specialist Evaluation is highly recommended. At the end of the April 2013 examination report, the examiner noted that the Veteran's eye condition did in fact impact his ability to work. He elaborated that the Veteran was not unable to secure or maintain substantially gainful employment solely as a result of his service-connected eye disabilities. The examiner acknowledged that the Veteran formerly worked as a custodian in the post office and his work responsibilities would not be affected by his eye disabilities The examiner further explained that the Veteran would have limitation operating heavy machinery (like driving) and in performing tasks at night or in poorly lit conditions. Nevertheless, the examiner noted this type of work is not typical work conditions of a custodian which is the Veteran's usual occupation. The April 2013 male reproductive systems conditions examination report noted that the Veteran's service-connected erectile dysfunction did not impact his ability to work or preclude him from obtaining or maintain gainful employment. The Veteran was also afforded a general VA examination in April 2013. The Veteran was diagnosed with diabetes mellitus, type II, which required more than one injection of insulin daily. During the examination, the Veteran reported that he retired in 2011 due to problems with absenteeism on account of his medical appointments. The examiner opined that the Veteran's service-connected diabetes mellitus did not preclude him from obtaining or maintaining a gainful employment as long as it was a more sedentary type of job which did not require standing or sitting for prolong periods of time, require severe physical effort or lifting or carrying of more than 20 pounds of weight. He was capable of light semi-sedentary type of work or desk top tasks. During the April 2013 peripheral neuropathy examination, the Veteran reported that his peripheral neuropathy had gotten worse since his evaluation in November 2009 and that he experiences tingling sensation in both feet with a burning sensation. The examiner noted that the Veteran formerly worked in maintenance for USPS. His job responsibilities required him to be standing for prolong periods of time, lifting and carrying or having to do tasks which required certain manual skills. The examiner opined that the Veteran's service-connected diabetic peripheral neuropathy produced moderate impairment in his ability to sustain and maintain a gainful employment, but did not render him unemployable. He can obtain, perform and secure a part-time semi-sedentary type of job which does not require standing or walking for prolong periods of time, and lifting or carrying objects more than 20 pounds of weight. It should also be noted that the Veteran is currently receiving payment from the Social Security Administration. See Veteran's Notice of Disagreement received in July 2011. In this case, the Board finds that the criteria for a TDIU have been met. As noted, the Veteran is service-connected for chronic uveitis of the right eye and secondary glaucoma, evaluated as 30 percent disabling from April 20, 2007, and as 50 percent disabling from December 8, 2008, diabetes mellitus, type II, with erectile dysfunction, evaluated as 20 percent disabling from November 26, 2002, peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling from April 20, 2007, peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling from April 20, 2007, and erectile dysfunction, evaluated as noncompensable. His combined evaluation is 60 percent from April 20, 2007 and 70 percent from December 8, 2008. The Board observes that the Veteran's disabilities result from a common etiology, diabetes mellitus, and must be considered as one disability. 38 C.F.R. § 4.16(a)(1). Although several VA examiners have stated that the Veteran is "not unemployable", the occupation options that they provide do not appear to be attainable for this Veteran. The Veteran received examinations in October 2007 and November 2007 for his eye disability and diabetes mellitus. Although the Veteran reporting missing three weeks of work in the last twelve months due to medical appointments and symptoms of his diabetes mellitus, the examiner reported that there were no significant effects on his occupation or usual daily activities. The October 2009 examination results and conclusions appear to show worsening of his disability. The examiner commented that the Veteran's diabetes mellitus and complications would have a significant effect on his occupation due to decreased upper and lower extremity strength. The Veteran stated that he could not work because he had to stop to prepare meals due to episodes of hypoglycemia and that he had muscles cramps that caused him to stop working until he obtained relief. The records show that the Veteran was still working full-time at this time. After he was "discharged" from his job in December 2010, the Veteran was afforded several VA examinations in April 2013. Based on these examinations, the Veteran's diabetes mellitus and neuropathy appear to have a significant impact on the type of job he can perform. The same examiner conducted the April 2013 general VA examination and the April 2013 peripheral VA examination. In the general examination report, the examiner opined that the Veteran's service-connected diabetes mellitus did not preclude him from obtaining or maintaining a gainful employment as long as it was a more sedentary type of job which did not require standing or sitting for prolong periods of time, require severe physical effort or lifting or carrying of more than 20 pounds of weight. He was capable of light semi-sedentary type of work or desk top tasks. During the peripheral neuropathy examination, the same examiner noted that working in maintenance required him to do the very things he now is unable to do such as standing for prolonged periods and lifting. The examiner suggested that the Veteran could perform and secure a part-time semi-sedentary type of job which did not require standing or walking for prolong periods of time, and lifting or carrying objects more than 20 pounds of weight. The Veteran's erectile dysfunction would not impact his job in any way; however, the Board recognizes that the Veteran is evaluated at 50 percent for his uveitis chronic right eye and secondary glaucoma. Although the April 2013 VA eye examiner opined that the Veteran was not unable to secure or maintain substantially gainful employment solely as a result of his eye disability, the Veteran's 50 percent evaluation contemplates significant reduction in the Veteran's visual field which would appear to effect even sedentary employment. As noted above, the Veteran's work experiences in maintenance for over 15 years with only a high school diploma will limit his ability to find the sedentary type work which was suggested by the examiner. In addition, the Veteran's significant visual field impairment would appear to effect even sedentary employment. Furthermore, the April 2013 examiner suggested that the Veteran obtain a part-time job which would not likely result in anything greater than marginal employment. "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a)(2013). The ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet.App. 211, 218 (2007) (The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator.), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The Board has reviewed the pertinent evidence as to the question of whether the Veteran can perform substantially gainful employment in a sedentary position, and finds the evidence is at least in equipoise. The Board further finds that no additional development would be helpful in arriving at a just decision in this case. Geib v. Shinseki, No.2012-7164, 2013 WL 5788671 (Fed. Cir. Oct. 29, 2013); (In a TDIU determination, "VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities."); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). As such, the Board finds that the Veteran is entitled to TDIU. The benefit of the doubt rule is therefore for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to a TDIU is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs