Citation Nr: 1610764 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 06-00 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU), for the period beginning February 15, 2011, to prior to October 5, 2012. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from May 1978 to October 1984. These matters come before the Board of Veterans' Appeals (Board) from a December 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran perfected an appeal of the December 2004 RO rating decision and requested a hearing before a Veterans Law Judge (VLJ) in January 2006. The hearing was held in February 2009 and a copy of the transcript has been associated with the claims file. In July 2009, November 2010, August 2012, and in May 2013, the Board remanded the Veteran's appeal to the Agency of Original Jurisdiction (AOJ). The Board specifically referred back a TDIU claim to the AOJ in each of these remands. In May 2013, the Board also entered a final decision which (1) denied increased schedular ratings for the Veteran's service-connected peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, and peripheral neuropathy of the left lower extremity and (2) determined that the requirements for invoking the procedures under 38 C.F.R. § 3.321(b)(1) for extra-schedular consideration were not met for any of these service-connected disabilities. Since the March 2013 Board decision is a final decision on the issues of entitlement to increased schedular ratings, including extra-schedular consideration under 38 C.F.R. § 3.321(b)(1), for the Veteran's service-connected peripheral neuropathy in each of his extremities, these discrete issues are no longer a part of the current appeal and thus remain undisturbed. See 38 U.S.C.A. §§ 511(a), 7103(a); 38 C.F.R. § 20.1100(a) (2015). Both the Veteran, through an attorney, and VA's Office of General Counsel, filed a Joint Motion for Partial Remand ("Joint Motion") with the United States Court of Appeals for Veterans Claims ("Court") in April 2014 seeking reversal of the Board's May 2013 decision to refer, rather than remand, the Veteran's TDIU claim. Both parties to the Joint Motion specifically noted that the Veteran was not pursuing an appeal with respect to the Board's May 2013 denial of increased schedular ratings for peripheral neuropathy in each of his extremities and requested that this part of the Board's May 2013 decision be affirmed by the Court. The Court granted the Joint Motion in May 2014, reversing only that part of the Board's May 2013 decision which referred a TDIU claim to the AOJ and remanding that claim to the Board for additional development. The Veteran was notified in September 2014 correspondence from the Board that the VLJ who held his Travel Board hearing in February 2009 subsequently had retired. He was offered the opportunity for another Board hearing before a different VLJ. See 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015). The Veteran responded in October 2014 that he wanted another Board hearing. In November 2014, the Board remanded the issue to the RO for the Veteran to be afforded another hearing. The Veteran was afforded a hearing before the undersigned in December 2015. The transcript is associated with the claims file. The Board notes that at the hearing before the undersigned Veterans Law Judge in December 2015, the Veteran specifically limited his appeal regarding entitlement to a TDIU to the period beginning February 15, 2011, to October 5, 2012. In addition, beginning October 5, 2012, the Veteran has been in receipt of TDIU or schedular 100 percent evaluation. As such, in regard to the issue of entitlement to a TDIU, only the period beginning February 15, 2011, to prior to October 5, 2012, remains on appeal and the issue has been recharacterized above. See AB v. Brown, 6 Vet. App. 35 (1993). At the hearing before the undersigned, the Veteran gave testimony with regard to claims for higher evaluations for bilateral upper and lower extremity peripheral neuropathy. At the same time the Veteran reported that his conditions in his arms had not changed since 2004. The issues of entitlement to higher evaluations for bilateral lower extremity peripheral neuropathy have been raised and it is unclear whether the Veteran seeks entitlement to higher evaluations for his bilateral upper extremity peripheral neuropathy. As such, these issues are referred to the RO for appropriate action. In September 2014, the RO proposed to reduce the evaluation of the Veteran's prostate cancer disability from 100 percent disabling to 40 percent disabling. In March 2015, the Veteran's representative reported that the Veteran used more than four pads daily entitling him to a 60 percent disability rating. Thereafter, in June 2015, the RO implemented the reduction of the evaluation of the Veteran's prostate cancer disability. Referral of the issue of the evaluation of the Veteran's prostate cancer disability is warranted for appropriate consideration of the March 2015 statement. FINDINGS OF FACT 1. The Veteran last worked in February 2011. 2. His service-connected disabilities precluded substantially gainful employment since that time. CONCLUSION OF LAW The criteria for an award of TDIU have been met for the period beginning February 15, 2011, to October 5, 2012. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. VA defined substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." See M21-1, Part IV, Subpart ii, Chapter 2(F)(1)(c). 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 when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability ratings 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran seeks entitlement to TDIU. At the hearing before the undersigned the Veteran indicated that he was seeking entitlement to a TDIU from February 15, 2011, to prior to October 5, 2012. From February 15, 2011 to October 5, 2012, the Veteran had a combined rating of 80 percent disabling. He was in receipt of service connected benefits for peripheral neuropathy of the right upper extremity associated with type II diabetes mellitus, evaluated as 30 percent disabling, peripheral neuropathy of the left upper extremity associated with type II diabetes mellitus, evaluated as 20 percent disabling, type II diabetes mellitus, evaluated as 20 percent disabling, peripheral neuropathy of the right lower extremity associated with type II diabetes mellitus, evaluated as 20 percent disabling, peripheral neuropathy of the left lower extremity associated with type II diabetes mellitus, evaluated as 20 percent disabling, tinnitus, evaluated as 10 percent disabling, bilateral hearing loss, evaluated as noncompensably disabling, hypertension, evaluated as noncompensably disabling, and erectile dysfunction associated with type II diabetes mellitus, evaluated as noncompensably disabling. As the diabetes, peripheral neuropathies, and erectile dysfunction are disabilities resulting from a common etiology they are treated as a single disability for TDIU purposes. Thus the Veteran meets the schedular criteria for assignment of a TDIU from February 15, 2011. 38 C.F.R. § 4.16(a). The Veteran was afforded a VA medical examination in August 2010. The examiner noted that the effect of the condition on the claimant's usual occupation was that he has trouble standing and walking for prolonged periods due to his diabetic peripheral neuropathy. The effect of the condition on the claimant's daily activity is that he had trouble standing and walking for prolonged periods due to his diabetic neuropathy. He used a cane to walk with and tired easily. In January 2011, the Veteran was afforded a VA neurology examination. With regard to employment, the examiner noted that the Veteran was an unemployed prison counselor. He was retired due to eligibility by age or duration or work. The examiner noted that the effects on his occupational activities were decreased mobility and pain. He had difficulty with prolonged standing and walking. The Veteran used a cane for balance difficulty. He provided a note dated in January 2008 from his neurologist stating that he was disabled. An employment information statement dated in August 2012, completed by the Veteran's employer, stated that the Veteran last worked on February 11, 2011. It was noted that the Veteran resigned due to medical reasons and that the Veteran missed work due to health conditions. Some paychecks were reported to be less due to having used up all of his earned leave time. At the hearing before the undersigned in December 2015, the Veteran reported that he had last worked on February 14, 2011. He was working at the state prison as a substance abuse counselor. He was required to stand and walk. He reported that his class started at 6:00 am and he was standing up until noon. Throughout the time he had to sit down and his employers would frown on the sitting down. He reported that he missed a lot of work due to the fact that he had a lot of doctor's appointments. The Veteran reported that his feet hurt a lot and that there was a lot of numbness and burning in the tips of his toes. After prolonged standing his left ankle will give way. He reported that he had used a cane since 2010. The Veteran reported that he had numbness and a lot of pain in the hands. He stated that at his job he had to use a computer to type progress notes. He had difficulty with fine movements like separating pieces of paper and dropped things. The Veteran identified other disabilities for which he was not service connected from February 2011 to October 2012 as impacting his work. The Veteran reported that after he retired from the military he went into the police force. He worked in security. He had a bachelor's degree in criminal justice, sociology, and psychology. The Veteran reported that he stopped working in 2010 but did not put the paperwork in until later. Affording the Veteran the benefit of the doubt, assignment of a TDIU for the period beginning February 15, 2011, to prior to October 5, 2012, is warranted. The Veteran has reported that he stopped working in 2010 and that he stopped working prior to 2012 but only put in his paperwork in 2012. The Veteran completed paperwork for his claim indicating that he last worked on February 15, 2011, and an employer statement reveals that the Veteran resigned on February 11, 2011. However, the Veteran has limited his appeal to the period beginning February 15, 2011. The Veteran's employment history reveals that he has worked as a police officer and as a substance abuse counselor at a prison. His positions have required walking and standing and the Veteran resigned his last job due to physical disabilities. The Veteran's walking and standing limitations are associated with his peripheral neuropathy for which service connected benefits were in effect during the entire period TDIU is sought. Although the Veteran has a college degree, his employment history is limited. In addition, his upper extremity peripheral neuropathy causes difficulty with fine movements and he was required to use a computer at work. Thus, affording the Veteran the benefit of the doubt, TDIU is granted for the period beginning February 15, 2011, to October 5, 2012. ORDER Total disability rating due to individual unemployability (TDIU), for the period beginning February 15, 2011, to October 5, 2012, is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs