Citation Nr: 1703294 Decision Date: 02/03/17 Archive Date: 02/15/17 DOCKET NO. 02-18 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for the service-connected diabetic peripheral neuropathy of the left lower extremity. 2. Entitlement to an initial evaluation in excess of 20 percent for the service-connected diabetic peripheral neuropathy of the right lower extremity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities prior to May 21, 2015. REPRESENTATION Veteran represented by: George Theodore Sink, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to December 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for diabetic peripheral neuropathy in the bilateral lower extremities and assigned a 10 percent rating for each extremity effective August 2004. In November 2006, the RO awarded increased 20 percent disability ratings for each lower extremity retroactive to the original grant of service connection. The claims remain in controversy as less than the maximum benefit available was awarded. See AB v. Brown, 6 Vet. App. 35 (1993). In March 2008, the Veteran was afforded a hearing with the undersigned Veterans Law Judge at the RO. His spouse also testified. A transcript has been associated with the record. In April 2008, the Board remanded the peripheral neuropathy claims for additional development. In June 2009, the Board denied the claims for increase. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In October 2010, the Court vacated those parts of the June 2009 Board decision that denied the Veteran's claims for a higher initial rating for his service-connected diabetic peripheral neuropathy of the bilateral lower extremities and remanded the matter to the Board. The Board then remanded the claims for additional development by a decision dated in July 2011. In August 2012, the Board once again denied the claims for increase; the Veteran again appealed the denial to the Court. The Court vacated and remanded the August 2012 Board decision denying entitlement to an initial evaluations in excess of 20 percent for diabetic peripheral neuropathy of right and left lower extremity; finding the Board failed to comply with the October 2010 Court Remand requiring the Board to address certain evidence in adjudicating the claims for increase. The Board remanded the Veteran's claims in May 2015. The issue of the propriety of the reduction of the evaluation for bilateral hearing loss from 10 percent disabling to noncompensable effective March 9, 2013 was remanded at that time for the issuance of a statement of the case. However, a June 2016 rating decision restored the 10 percent rating from March 9, 2013; thus, there is no case or controversy remaining concerning this issue. The Board additionally notes that the May 2015 remand referred the issue of entitlement to a TDIU. A January 2016 rating decision granted entitlement to TDIU effective May 21, 2015. In August 2016, the Veteran submitted a notice of disagreement with the effective date of such award. In September 2016, the Veteran's attorney submitted a letter stating that an effective date of April 20, 2009 is appropriate. Although this appeal has not been perfected, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the left and right lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence indicates that the Veteran is unable to secure or follow substantially gainful employment as a result of his service-connected disabilities from April 20, 2009. CONCLUSION OF LAW The criteria for a TDIU are met from April 20, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(a) (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Board notes that the Veteran has been provided all required notice and that the evidence currently of record is sufficient to substantiate his claim for entitlement to a TDIU as of April 20, 2009, the date specified by the Veteran's attorney. Therefore, no further development with respect to the matter decided herein is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2016). Regulations and Analysis In a September 2016 letter from the Veteran's attorney, he indicated that the Veteran filed for an increased rating on April 20, 2009 and that the Veteran had been prevented from securing or following substantially gainful employment since at least that date. VA regulations indicate that when a Veteran's schedular rating is less than total, a total rating may nonetheless be assigned 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 (1) if there is only one disability, this disability shall be ratable at 60 percent or more; and (2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). The test of individual unemployability is whether the veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The record indicates the Veteran's current service-connected disabilities, during the relevant period, include peripheral neuropathy of the right upper extremity at 20 percent from August 25, 2004 and 40 percent from October 11, 2012; peripheral neuropathy of the left upper extremity at 20 percent from August 25, 2004 and 20 percent from October 11, 2012; 50 percent from October 11, 2012 for Posttraumatic Stress Disorder; diabetes mellitus at 20 percent from August 25, 2004; peripheral neuropathy of the right lower extremity at 20 percent from August 25, 2004; peripheral neuropathy of the left lower extremity at 20 percent from August 25, 2004; bilateral hearing loss at 10 percent disabling from May 14, 2001; tinnitus at 10 percent disabling from November 1, 2001; peripheral neuropathy of the left lower extremity femoral at 10 percent disabling from May 23, 2015; peripheral neuropathy femoral of the right lower extremity at 10 percent disabling from May 23, 2015; erectile dysfunction, noncompensable; hypertension, noncompensable. The Veteran's combined disability rating is 80 percent from August 25, 2004. The Board additionally notes that the Veteran's diabetes mellitus, erectile dysfunction and peripheral neuropathy of all four extremities are all considered one disability for VA purposes. The remaining question for consideration is whether the Veteran is unemployable due to his service-connected disabilities. In this regard, the appropriate TDIU standard is not whether the Veteran is able to obtain any employment or to maintain marginal employment. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) (holding that "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 claimant." (quoting Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975)). Rather, the standard is a subjective one and is whether the Veteran can obtain and maintain substantially gainful employment. The Veteran's service-connected disabilities alone must be sufficiently severe to produce unemployability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16. Here, the Veteran, through his attorney, submitted an August 2016 vocational assessment. The examiner provided an overview of the Veteran's claims file with specific citations to medical records. The examiner discussed the Veteran's vocational history, most recently as a corrections officer. The Veteran indicated that he had problems with such work as he had difficulty with pain, numbness and tingling in his extremities and problems with hearing made it difficult to interact with his co-workers and perform phone work. Additionally, the Veteran's PTSD interfered with his sleep, motivation, energy and ability to concentrate. The Veteran had a lack of data entry skills to transfer to an office environment. The examiner indicated that the Veteran had been unemployable since he left his last employment in 2009 due to his ongoing, debilitating daily symptoms due to his service-connected disabilities. In conclusion, the record supports a grant of TDIU from the time that the Veteran left his previous gainful employment in 2009, specifically April 20, 2009. Thus, the Veteran's claim must be granted. ORDER Entitlement to a TDIU is granted from April 20, 2009, subject to the criteria applicable to the payment of monetary benefits. REMAND Unfortunately, additional remand is required for the Veteran's increased rating claims. The most recent remand indicated that the AOJ must consider VA examinations from 2013 and VA treatment records dating from 2001 in its readjudication. Unfortunately, this was not accomplished. Thus, additional remand is required for re-adjudication. Additionally, the December 2015 examination report did not include an etiology of the Veteran's left foot drop and aching in the legs, as requested in the previous remand. An additional examination must be afforded the Veteran on remand. Also, in June 2016, the Veteran submitted VA 21-4142 forms in order to obtain relevant private treatment records. Such records must be requested on remand. Lastly, updated records of any subsequent treatment the Veteran has received for diabetic peripheral neuropathy of the bilateral lower extremities since June 2016 (the last VA treatment records associated with the virtual file) are pertinent evidence that must be secured. 38 C.F.R. § 3.159 (c)(2). The Board's remand conferred on the Veteran the right to compliance with the remand orders, as a matter of law. See Stegall v. West, 11 Vet. App. 268, 271 (1998). However, as already explained herein, the Board's remand orders were not fully complied with. Thus, the AOJ is required to conduct the development requested by the Board in order for the Veteran's claim to be fully and fairly adjudicated. Accordingly, the case is REMANDED for the following action: 1. Secure for the record copies of the complete updated (since June 2016) VA clinical records of all evaluations and treatment the Veteran received for his diabetic peripheral neuropathy of the bilateral lower extremities. Additionally, procure the private records identified by the Veteran in his June 2016 correspondence. All requests for records and their responses must be associated with the claims folder. 2. Schedule the Veteran for a VA examination to determine the nature and extent of his diabetic peripheral neuropathy of the bilateral lower extremities. The claims file should be available to the examiner for review and the exam report should indicate that such review was accomplished. All findings should be reported. The examiner should address the etiology of the Veteran's complaints of aching legs and feet and left foot dragging. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issues on appeal and furnish to the Veteran and his representative an appropriate SSOC, which considers and lists as evidence submitted since the July 2012 SSOC was issued (notably reports of VA examination dated in March 2013 and July 2013 and CAPRI records contained in the virtual record dated between 2001 and 2013), and afford a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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 2014). ______________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs