Citation Nr: 1618224 Decision Date: 05/06/16 Archive Date: 05/13/16 DOCKET NO. 13-14 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total disability rating based on individual unemployability, due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD Timothy A. Ralls, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1963 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's service-connected disabilities have been shown to prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 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 FINDING AND CONCLUSION TDIU is warranted when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from secure and follow substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Service connection is in effect for diabetic nephropathy, evaluated as 80 percent disabling, from December 4, 2006; peripheral neuropathy, right lower extremity, evaluated as 10 percent disabling prior to October 24, 2005, 20 percent disabling thereafter, and 30 percent disabling from June 23, 2008; peripheral neuropathy, left lower extremity, evaluated as 10 percent disabling prior to October 24, 2005, 20 percent disabling thereafter, and 30 percent disabling from June 23, 2008; diabetes mellitus evaluated as 20 percent disabling from May 8, 2001; and noncompensable evaluations for erectile dysfunction and diabetic retinopathy, with left eye cataract. The Veteran has a combined evaluation of 40 percent disabling prior to October 24, 2005, 50 percent disabling thereafter, and 90 percent disabling from December 4, 2006. The Veteran's service-connected disabilities meet the minimum schedular criteria for TDIU. 38 C.F.R. § 4.16(a). At the hearing before the Board in March 2016, and in statements submitted by the Veteran, the Veteran contended that he was dismissed from the University of Phoenix in November 2006 for sleeping in class during student presentations. The students had twice reported the apparent sleeping and the administration indicated they had no other choice but to dismiss the Veteran. The Veteran stated that the reason for this condition was the large doses of medication he was taking to subdue the pain experienced in his toes, feet, and ankles due to severe neuropathy resulting from his service-connected diabetes mellitus. The Veteran also claimed his unemployability was due to his being legally blind. The Veteran stated that his legal blindness was originally due to retinal neuropathy, which was due to his service-connected diabetes. The Veteran stated that it was his goal to teach until his death. The Veteran submitted a resume and copies of his academic degrees, which reflect receipt of a Bachelor of Science, Master of Arts, Master of Business Administration, and Doctorate of Business Administration. The Veteran stated he had been working on a part-time basis since 1964, and was involved in teaching business to Fortune 500 companies from 1968 to 2006. In a January 2008 filing, the Veteran submitted a copy of his 2007 W-2 from the University of Phoenix which showed gross income for the entire year of $2,740. The Veteran stated this was six percent of his normal salary. In a January 2008 VA diabetes examination, the Veteran reported a severe burning pain in his feet and numbness from the mid-calf down for approximately the last four years. The Veteran stated that it was difficult for him to ambulate at his job and it became almost impossible for him to stand through the course of a lecture because of the aggravation of the burning pain in his feet. The Veteran was having difficulty performing his job and was recently dismissed from his job on November 30, 2006, after complaints of his inattentiveness, ineffectual lecturing, and falling asleep during presentations. Since that time, the Veteran reported minimal income from doing one-on-one tutoring with Phoenix University, as he had not been able to secure employment. The Veteran tried to exercise, but his painful feet precluded walking any distance and his general energy and vigor had left him without desire for any other form of exercise. The examiner noted that though the Veteran's diabetes was under fair control, it was not stable in the fact that the treatment was inducing hypoglycemia. The examiner felt this could simply be the timing of the medications and not an inherit problem with the management of diabetes. The examiner also noted the Veteran's transient renal function abnormality. There was no evidence of diabetic neuropathy and the Veteran had been screened for diabetic retinopathy and none found. The Veteran had profound sensory and early motor peripheral neuropathy of the lower extremities, which contributed significantly to mobility problems and duress while working as a lecturer and teacher, and was at least in part responsible for the difficulties with balance and performing his job. The examiner felt there was also an undiagnosed sleep disorder and recommended that the Veteran talk to his physician. The examiner felt the sleep problem might be significant in terms of his inattentiveness, falling asleep while reviewing students' presentations and other issues that led to his termination from employment as a teacher at the Phoenix University. The examiner stated that the Veteran, at present, was not able to secure or maintain employment in his chosen profession as a professional teacher and instructor, and given the refractory nature of the peripheral neuropathy and instability of his diabetes, he was unlikely to be able to secure employment in the near future. A January 2008 letter from the University of Phoenix, a subsidiary of the Apollo Group Inc., stated that the Veteran was currently employed as a faculty member and began employment on April 29, 1984. In a February 2009 VA eye examination, the examiner stated that the Veteran's impaired vision was most likely aggravated by diabetes mellitus. The Veteran claimed that one morning he woke up with a blood clot in his right eye and went to the emergency room and they told him his retina was torn. From that point on, his vision had been pretty much nothing in his right eye. He stated that he was a teacher and could not see anything anymore and he could not teach. A March 2009 VA diabetes examination was conducted in which the examiner stated that the Veteran's employability was minimally compromised due to his peripheral sensory neuropathy. The examiner noted difficulty standing and walking before classes for prolonged periods of time, but the major disability was the Veteran's blindness which precluded him from reading text, teaching, and writing on the board. A VA blind rehabilitation note, dated in July 2010, indicated the Veteran was being assessed and learning skills to deal with his visual impairment. The Veteran stated he may have a possible employment opportunity by teaching classes on cruise ships and wanted to learn how to make PowerPoint presentations as a skill to possibly secure a job with the cruise industry. A November 2010 VA eye examination was conducted in which the examiner thoroughly reviewed the Veteran's file and prior exams. The examiner stated that the Veteran's vision loss was primarily due to macular degeneration and not diabetic retinopathy. The examiner also noted that current medical literature had not found a strong link between diabetes as a causative factor of macular degeneration. The examiner did note that one study had found an association between diabetes and early macular degeneration, but this was not the general consensus. Additionally, the examiner commented upon the other examinations of record and noted that none had found active diabetic retinopathy. The examiner noted that the Veteran's cataract in the left eye may be aggravated or caused by his diabetes. The examiner felt that after careful consideration and review it was apparent that the Veteran's visual impairment was caused primarily from macular degeneration. The examiner stated it was not possible to delineate what vision loss was due to macular degeneration and what was due to retinopathy, but it was evident that the majority of the visual impairment was caused by macular degeneration. The Veteran was afforded a VA eye examination in October 2012. The examiner noted that diabetic retinopathy and left eye cataract were not present at today's examination, however, the Veteran's vision was significantly impaired from his bilateral age related macular degeneration which would cause significant difficulties in performing certain occupations. The examiner stated the Veteran's macular degeneration may render him unable to secure and maintain substantially gainful employment. In an October 2012 filing, the Veteran submitted a verification email from the parent company of the University of Phoenix, the Apollo Group. The email indicated that the Veteran's dates of employment were from April 1984 to March 2009. The Veteran was afforded a VA diabetic sensory-motor peripheral neuropathy examination in October 2012. The examiner noted that employment limitations secondary to diabetic neuropathy in the lower extremities would include no prolonged walking. There were no other limitations that would render him unable to secure and maintain substantially gainful employment. The Veteran was afforded a VA kidney examination in October 2012. The examiner stated that there were no employment limitations that would render him unable to secure and maintain substantially gainful employment. The Veteran was afforded a VA eye examination in February 2013. The examiner opined that because the right eye cataract was removed prior to the examination, and as there were minimal notes in the service records as to the type of cataract present, it was impossible to determine which type of cataract the Veteran had. Only certain types of cataracts were known to be associated with diabetes, the examiner could not opine as to whether or not the right eye cataract was associated with diabetes without resorting to mere speculation. However, since it had been noted that the cataract in the left eye was the type that was known to be associated with diabetes, it was "at least as likely as not" that the cataract was related to the diabetes. The examiner stated that the epiretinal membrane in the left eye was not related to diabetes and was instead a result of excess tissue and was not the cause of the Veteran's vision decrease. The examiner stated that these diagnoses alone would not render him unable to secure and maintain substantially gainful employment; however, the Veteran was significantly visually impaired by his bilateral macular degeneration and as such may have significant difficulties performing certain occupations, which would render him unable to secure and maintain substantially gainful employment. The Veteran was afforded VA diabetes, eye, kidney, peripheral neuropathy, and hypertension examinations in May 2014. In the diabetes examination, the examiner noted the Veteran's diabetic nephropathy and renal dysfunction were caused by diabetes. The examiner noted that the Veteran's diabetes had "at least as likely as not" permanently aggravated the Veteran's renal disease. The examiner noted that the Veteran's diabetes did not preclude the Veteran from sedentary or physical employment. In the kidney examination, the examiner noted that the Veteran's kidney function impacted his ability to work because the Veteran was unable to lift more than 10 pounds with his left arm due to an arteriovenous fistula. Additionally, the Veteran's diabetic nephropathy, with fatigue, and fistula for pending dialysis precluded the Veteran from physical employment. The examiner noted that temperatures over 100 degrees as seen in Southern Arizona, could increase risk of dehydration which could worsen nephropathy. This would exclude outdoor physical employment. The examiner noted that sedentary employment would be feasible. In the peripheral neuropathy examination, the examiner noted that the Veteran's bilateral diabetic peripheral neuropathy of the lower extremities had caused loss of sensation of the feet and lower legs which impaired the Veteran's gait and put him at risk for falls and foot injuries. This eliminated him from performing physical labor, but sedentary employment was feasible. In the hypertension examination, the examiner noted that hypertension did not preclude the Veteran from sedentary or physical employment. In the eye examination, the examiner stated that the Veteran's mild nonproliferative diabetic retinopathy and left eye cataract were not causing the Veteran's decreased vision. The examiner stated that the Veteran's service-connected disorders were not likely to cause any functional impairment. The examiner noted that the Veteran was significantly visually impaired by his bilateral macular degeneration and as such, would have significant difficulties performing occupational tasks requiring good visual acuity. However, this was unrelated to his service-connected eye disabilities. When considering the Veteran's employment and educational background, as well as the medical evidence of record, in addition to affording the Veteran the benefit-of-the-doubt, the Board finds that the evidence supports a grant of a TDIU. The examiners' opined that the Veteran's disabilities, standing alone, did not preclude him from obtaining and maintaining substantially gainful employment. However, the examinations and opinions were perfunctory at best, and when looking at the effects of his service-connected disabilities in the aggregate, and considering the Veteran's past education and work experience, the Board finds the Veteran is not capable of obtaining and maintaining substantially gainful employment consistent with his education and experience. While guided by VA examiners' opinions, the Board is the ultimate arbitrator on whether or not the Veteran is entitled to TDIU, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran claims he has been mostly unemployed since November 2006 when he was dismissed from the University of Phoenix. The email record of employment, submitted by the Veteran, reflects the Veteran was employed until March 2009 by the University of Phoenix; however, the Veteran's W-2 statement from the University of Phoenix in 2007 reflects minimal employment. The Veteran's own statement to the January 2008 VA examiner that he was doing some tutoring with the University of Phoenix is consistent with the submitted W-2 statement. Though a July 2010 statement by the Veteran indicated his desire to teach classes on cruise ships, there is no evidence in the record that this ever came to pass. Additionally, the January 2008 VA examiner stated that the Veteran was unable to secure or maintain employment in his chosen profession as a teacher or instructor due to the nature of his peripheral neuropathy and his diabetes. The Veteran's May 2014 kidney examination noted that the Veteran's diabetic nephropathy, with fatigue, and fistula for pending dialysis precluded the Veteran from physical employment. Additionally, extreme heat would prevent the Veteran from engaging in employment outdoors. It is clear from the record that the Veteran is unable to obtain or secure sedentary employment and would be unable to perform physical employment. Applying the criteria set forth above to the facts in this case, and affording the Veteran the benefit of the doubt, the Board finds the evidence weighs in favor of a finding that the Veteran is unable to follow a substantially gainful occupation due to his service-connected disabilities and that TDIU is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs