Citation Nr: 1751246 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 08-17 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION The Veteran had active military service from July 1969 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In June 2014, the Board remanded a claim for TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDING OF FACT The evidence does not show that the Veteran's service-connected disabilities have prevented him from securing and maintaining substantially gainful employment consistent with his level of education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). In determining whether the Veteran is not entitled to a TDIU, neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that the Veteran meets the schedular requirements for a TDIU. The Veteran is service-connected for peripheral neuropathy of the right upper extremity associated with diabetes (rated 40 percent from May 9, 2006); peripheral neuropathy of the left and right lower extremities associated with diabetes (each rated 10 percent from August 21, 2006; 20 percent from August 14, 2009; and 40 percent from December 3, 2015); diabetes mellitus with erectile dysfunction, diabetic retinopathy, left eye, and bilateral cataracts (rated as 20 percent from November 27, 2001); and peripheral neuropathy of the left upper extremity (rated 20 percent from August 9, 2006). The Veteran met the schedular criteria for a TDIU since August 9, 2006. See 38 C.F.R. § 4.25, 4.16(a). Therefore, the outcome of this case turns on whether the Veteran's service-connected disabilities preclude his participation in substantially gainful employment consistent with his education and work experience. Based on the evidence, the Veteran's service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. Records from the Social Security Administration (SSA) show that the Veteran work at a steel mill as a rolling machine operator for 30 years prior to retiring in 1997, and thereafter as a security guard. See November 2009 SSA records. In his work at the steel mills, the Veteran's duties included lifting up to 50 pounds, loading rolls of steel into the mills, adjusting controls, inputting information, and replacing wheels and other parts. In his work as a security guard, the Veteran was required to walk the properties to inspect for intruders, react to situations involving vandalism, theft, fire or other illegal acts, and handle a firearm. As a security guard, on a part-time basis, the Veteran reported a wage of $6 per hour for 8 hours, working 3 days a week. See SSA records from December 2007. The Veteran did not attend schooling beyond the 12th grade. See January 2008 treatment record. The Veteran denied any vocational or trade schooling. See January 2009 SSA examination. In February 2008, the Veteran was examined for purposes of SSA disability benefits. The clinician noted a history of diabetes mellitus and hypertension. Upon examination, the clinician noted normal gait, ability to stoop and squat without difficulty, and normal motor strength, reflexes, sensation, and range of motion. The clinician indicated that the Veteran can occasionally lift 50 pounds and frequently lift 25 pounds; the Veteran can stand or walk 6 hours in an 8 hour day. The clinician found the Veteran's assertion regarding the nature and severity of his condition only partially credible; the Veteran's contentions regarding the severity of his condition were not supported by the evidence in the file. Similarly, in a December 2008 VA examination, the examiner indicated that the Veteran's diabetes mellitus had no effect on occupational functioning and activities of daily living. At the examination, the Veteran reported numbness and tingling of the hands and below the left knee. The Veteran was observed to have a mildly weakened ability to grip. The examiner gave final diagnosis of diabetes mellitus and mild peripheral neuropathy. The examiner concluded that the Veteran's diabetes mellitus and neuropathy presented no functional impairment. In a February 2009 hearing before a decisional review officer, the Veteran testified that he had swelling in his hands, constant pain in his legs and hands, problems with stability and walking, shooting/needle like pain, and that he cannot drive for long distances. The Veteran reported that he stopped working as a security guard because of his service connected disabilities. Specifically, the Veteran reported that his peripheral neuropathy made him unable to qualify with his weapon or walk the distance he needed to cover. In November 2009, the SSA determined that the Veteran is disabled with the primary diagnosis of diabetic neuropathy. In the November 2009 SSA records, the Veteran was noted to be credible with a sedentary residual functional capacity. In a September 2010 VA examination for diabetes mellitus, the Veteran reported numbness, tingling, constant burning pain, and weakness in bilateral upper and lower extremities. Since being placed on insulin, the Veteran reported three episodes of hypoglycemic reaction with some loss of consciousness needing resuscitation. The examiner noted that as a result, the Veteran must avoid strenuous activity to prevent hyperglycemic reactions. The examiner indicated that the Veteran's moderate, severe peripheral neuropathy in the right hand had a moderate impact on occupational function. The examiner further indicated that there was mild neuropathy in left hand, right foot and left foot with mild to moderate effect on occupational function. Pursuant to the June 2014 Board remand, the Veteran was afforded a VA examination in relation to his peripheral neuropathy. At the January 2016 examination, the Veteran described numbness and tingling of the feet and legs, poor balance, and loss of feeling in the lower extremities. The Veteran further reported difficulty writing with his dominant hand. The examiner noted that the Veteran had constant and intermittent moderate pain in the upper extremities, with intermittent mild pain in the lower extremities. The examiner noted mild paresthesia and numbness in the upper extremities, with moderate paresthesia and numbness in the lower extremities. The examiner observed that there was normal muscle strength but some reflex abnormality in the deep tendon of the ankle and the right knee. The examiner assessed the Veteran as having moderately, severe incomplete paralysis of the lower extremities and moderate incomplete paralysis of the upper extremities. As to functional impact, the examiner concluded that the Veteran should not engage in physical work due to diabetic peripheral neuropathy. The same examiner conducted a similar January 2016 examination related to diabetes mellitus. The examiner again concluded that due to complications from diabetes, to include diabetic retinopathy and neuropathy, the Veteran cannot engage in physical work. At VA eye examination report dated in March 2017 shows that the service-connected diabetic eye condition does not impact the Veteran's ability to work. The Board acknowledges that some of the Veteran's service-connected disabilities ratings such as those for peripheral neuropathy of the bilateral lower extremities represent relatively high levels of impairment for those disabilities. Nonetheless, a high disability rating alone does not determine whether a Veteran is unemployable by reason of service-connected disabilities. A TDIU rating is based upon an "individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Board finds that prior to the September 2010 VA examination; the evidence showed the Veteran's service-connected disabilities did not render him unemployable. Indeed the December 2008 VA examination shows that his diabetes and peripheral neuropathy did not cause functional impairment. The evidence from SSA shows the Veteran's assertion of being unemployable was not found entirely credible by SSA. Further, the February 2008 SSA evaluation revealed that his residual physical capacity was generally consistent with his capacity to work prior to leaving his security officer job. Specifically, he was still able to lift up to 50 pounds and stand/walk up to 6 hours a day. These VA and SSA clinicians found that the Veteran's service connected disabilities had little to no impact on the Veteran's occupational functioning. The opinions are competent and probative evidence against the claim. Beginning in September 2010, the VA examiners noted that his diabetes and peripheral neuropathy would likely preclude strenuous physical labor due to his hypoglycemic episodes and moderate to severe peripheral neuropathy affecting the extremities. However, it is also noted that the March 2015 and February 2016 VA examiners indicated that the Veteran's disabilities would not preclude him from seeking sedentary employment. The Board likewise has determined that the evidence of record, to include the VA and SSA records, does not demonstrate that the Veteran's diabetes and/or peripheral neuropathy symptoms would prevent him from completing basic sedentary work tasks such as answering telephones, filing papers, conducting light computer work, or performing a job in the security field where he is not required to carry a weapon. The Board further notes that a substantially complete VA Form 21-8940 is required to establish entitlement to TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. VA Adjudication Manual M21-1 IV.ii.2.F.2.b. Under the VA Adjudication Manual, when VA Form 21-8940 has not been submitted, the issue of TDIU, whether expressly or reasonably raised, will be denied. In the June 2014 Remand, the Board found that the issue of a TDIU was raised by the record and remanded the claim for further development. Pursuant to the Remand instructions, the RO sent the Veteran a notice with a request for completion of a Veteran's Application for Increased Compensation Based on Unemployability or Form 21-8940 in March 2017 and in March 2017. Unfortunately, the Veteran did not return a completed Form 21-8940 to support his claim. While failure to complete the form is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to properly address a claim for TDIU. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In sum, the Veteran has failed to cooperate with VA's attempts to develop the claim for TDIU that was raised by the record. Moreover, entitlement for TDIU is not warranted as the record shows that his disabilities do not preclude him from performing sedentary work. As the evidence fails to establish that the Veteran's service-connected disabilities preclude him from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience, TDIU is not warranted. See 38 U.S.C.A. § 5107(b) (West 2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER TDIU is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs