Citation Nr: 1754475 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-31 330A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marines Corps Reserves from April 1971 to October 1971. He also served on active duty with the United States Marine Corps from March 1972 to September 1973, November 1973 to February 1983, and from April 1990 to November 1991. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This case was certified to the Board by the VA RO in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge in June 2017. A transcript of that hearing is of record. FINDING OF FACT The schedular criteria for a TDIU are met and the competent medical evidence of record is at least in equipoise as to whether his service-connected disabilities prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R §§ 3.102, 3.340, 3.341, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. The Veteran has contended that he is unable to maintain substantially gainful employment due to his service-connected disabilities. The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the Veteran is 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, or 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. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology will be considered as one disability. See 38 C.F.R. § 4.16(a)(2). At present, the Veteran is currently service connected for left rotator cuff tendonitis (30 percent disability rating), hearing loss (30 percent disability rating), diabetes mellitus with hypertension and erectile dysfunction (20 percent disability rating), peripheral neuropathy of the left upper extremity associated with diabetes mellitus (20 percent disability rating), peripheral neuropathy of the right upper extremity associated with diabetes mellitus (20 percent disability rating), right ankle disability (10 percent disability rating), tinnitus (10 percent disability rating), peripheral neuropathy of the left lower extremity associated with diabetes mellitus (10 percent disability rating), and peripheral neuropathy of right lower extremity associated with diabetes mellitus (10 percent disability rating). The Veteran is also service connected for pes planus, right ankle scar, left knee osteoarthritis, left knee meniscal tear, and nephropathy, each with a noncompensable disability rating. The Veteran's total combined disability rating is 90 percent. Prior to September 8, 2015, the Veteran's peripheral neuropathy of the upper extremities was evaluated at 10 percent for each extremity. As stated above, for the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology will be considered as one disability. See 38 C.F.R. § 4.16 (a)(2). The Board finds that the Veteran's diabetes mellitus with hypertension and erectile dysfunction, peripheral neuropathy of the left upper extremity associated with diabetes mellitus, peripheral neuropathy of the right upper extremity associated with diabetes mellitus, peripheral neuropathy of the left lower extremity associated with diabetes mellitus, and peripheral neuropathy of right lower extremity associated with diabetes mellitus, constitute disabilities all resulting from the Veteran's diabetes mellitus. During the entire appeal period, the Veteran's diabetes mellitus and compensable complications combine to result in at least a 40 percent disability rating. 38 C.F.R. § 4.25. Accordingly, the schedular criteria for entitlement to TDIU due to two or more service-connected disabilities are met. 38 C.F.R. § 4.16(a). The record must reflect that circumstances, apart from non-service-connected conditions, place the Veteran in a different position than other veterans having the same compensation rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran's claims file contains an April 2017 VA Vocational Rehabilitation and Employment (VR&E) Counseling Record - Narrative Report. In the report, the Veteran notes his last day of full-time employment was in May 2010. The report states: [The Veteran's] service-connected disabilities significantly impair his ability to prepare for, obtain, and/or retain employment. Because of these conditions he is hindered in ability to engage in long distance driving, prolonged operation of machinery, working above ground, prolonged standing, walking and running, frequent climbing and balancing, working environments that may present or result in foot trauma, and related functions, as well as, perform activities that require constant, repetitive lifting, pushing, pulling, carrying, typing, driving, using hand tools, fine dexterity manipulation, and related activities with [d]ifficulty comprehending verbal communication and following verbal directives in loud/noisy environments, and should avoid positions that require tasks which would negatively impact or be limited by the [V]eteran's condition(s). As a result he is precluded from working in positions such as dispatcher, policeman, or manual laborer. The Veteran's service-connected disabilities place him at an employment disadvantage compared to similarly circumstanced veterans. His service-connected disabilities are the cause for the above limitation as he is unable to obtain maintain or prepare for specific employment in the labor market that does not aggravate his service connected disabilities. Therefore the effects of the impairment contribute in an identifiable, measurable, or observable way to the Veteran's ability to obtain, maintain, or retain employment that is consistent with his disabilities. The impairments were found to result in substantial part from the Veteran's service-connected disabilities. The Veteran meets the criteria for an employment handicap due to the fact that the [service-connected disabilities] contribute in substantial part to the vocational impairment and the Veteran has not overcome the effects of the impairment through further education, transferable skills, or obtaining and maintaining suitable work. Based upon the findings of the April 2017 VA VR&E Counseling Record - Narrative Report, the Board finds the Veteran is not capable of performing the physical and mental acts required by employment due to his service-connected disabilities, when taking into account his education and occupational history. See Van Hoose, 4 Vet. App. 361. Accordingly, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16 ORDER Entitlement to a TDIU is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs