Citation Nr: 1756663	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  14-04 123	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


ATTORNEY FOR THE BOARD

K. Clark, Associate Counsel 



INTRODUCTION

The Veteran had active duty service from February 1968 to February 1970, to include service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

In March 2016 and December 2016, the Board remanded the issue on appeal for additional development and it now returns for further appellate review. 

Additionally, in March 2016 and December 2016, the Board noted that the issue of entitlement to service connection for a nervous disorder other than posttraumatic stress disorder was raised by the Veteran in a June 2012 informal claim.  This issue still has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

Resolving all doubt in the Veteran's favor, his service-connected disabilities render him unable to secure or follow a substantially gainful occupation.


CONCLUSION OF LAW

The criteria for a TDIU have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

As the Board's decision to grant a TDIU constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. 

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a 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, such disability shall be ratable as 60 percent or more, and 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). 

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App.447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

The sole fact that a claimant 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, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

The Veteran contends that the severity of his service-connected disabilities prevent him from obtaining or maintaining gainful employment. 

As an initial matter, the Board notes that the Veteran meets the schedular requirements for a TDIU throughout the appeal period stemming from his September 2012 claim. In this regard, he is service-connected for diabetes mellitus with noncompensable erectile dysfunction, evaluated as 20 percent disabling; diabetic nephropathy associated with diabetes mellitus, evaluated as 30 percent; lumbar strain, evaluated as 20 percent disabling; peripheral neuropathy of the bilateral upper extremities associated with diabetes mellitus, each evaluated as 20 percent disabling; peripheral neuropathy of the sciatic nerves of the bilateral lower extremities, each evaluated as 10 percent disabling; peripheral neuropathy of the femoral nerves of the bilateral lower extremities, each evaluated as 10 percent disabling; and hypertension, evaluated as noncompensably disabling. Since the Veteran's diabetes, diabetic nephropathy, and peripheral neuropathy disorders have a common etiology as they are part of the diabetic disease process, those disabilities are considered as one disability under 38 C.F.R. § 4.16(a). Consequently, the Veteran meets the schedular criteria requirements for a TDIU throughout the appeal period as his combined rating for the disabilities related to diabetes is 80 percent and his combined rating for all of his service-connected disabilities is also 80 percent.

Furthermore, upon review of the evidence, the Board finds that, after resolving all doubt in the Veteran's favor, his service-connected disabilities render him unable to secure or follow a substantially gainful employment. In this regard, the evidence of record indicates that the Veteran has a high school education and worked in a warehouse of a bubble gum factory as a material handler for 22 years, which entailed driving a forklift to take packages to different places inside the building. 

The Veteran's Social Security Administration (SSA) records reflect that he was awarded disability benefits based on a primary diagnosis of gout arthropathy and a secondary diagnosis of affective disorders. In this regard, the Veteran reported that his depression, high blood pressure, rheumatoid arthritis, and nerve disorders limited his ability to work as he had to stop working due to the severity of his condition. Included in such records is a February 2009 evaluation in which the examiner opined that the Veteran was limited to carry, lift, and handle moderate weight objects. Additionally, a February 2009 mental residual functional capacity assessment noted that the Veteran did not retain the ability to appropriately interact with supervisors, co-workers, and others, and could not adequately complete a normal workweek and workday; however, such assessment was based on the Veteran's nonservice-connected major depressive disorder.

Nonetheless, in November 2012, a private medical opinion was received from Dr. C.Q., who opined that the Veteran was 100 percent disabled and unable to work. In contrast, a November 2012 VA opinion noted that the Veteran was able to obtain, perform, and secure a substantial gainful occupation requiring light, sedentary work, such as in an administrative position as a clerk answering telephones, based on his service-connected disabilities of diabetes with nephropathy, erectile dysfunction, and peripheral neuropathy of the bilateral upper and lower extremities.  However, as noted in the prior remands, the Board found both opinions insufficient to adjudicate the claim because no rationale was provided for either opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").   

In October 2014, the Veteran underwent a VA examination for his diabetic peripheral neuropathy. At such time, the examiner found that such disorder impacted the Veteran's ability to work because it had slowed him considerably and he was losing dexterity. The Veteran was also afforded VA examinations in August 2016 for his diabetes, male reproductive system, kidney conditions (nephrology), diabetic sensory-motor peripheral neuropathy, and hypertension. In each, the examiner stated that the Veteran's disabilities did not affect his ability to work.  However, no explanation or rationale was given for such conclusions. Id.   

Therefore, in the December 2016 remand, the Board requested a description of the effects the Veteran's service-connected disabilities had on his ordinary activities, to include his employability, and in May 2017, such was obtained. The VA examiner found that, after taking into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities, his service-connected disabilities of diabetes with erectile dysfunction, diabetic nephropathy, diabetic peripheral neuropathy of the bilateral upper and lower extremities, and lumbar strain neither impacted his ability to function in a sedentary occupational environment nor impaired him for sedentary employment activities. However, such examiner did not provide a rationale for his opinion. See Nieves-Rodriguez, supra; Stefl, supra. Nonetheless, the Board finds after resolving all doubt in favor of the Veteran, he is entitled to a TDIU.

In this regard, while the May 2017 VA examiner noted that the Veteran could perform sedentary work, the evidence of record does not indicate that he has the skill or expertise to perform such work. Specifically, the Veteran had been employed as a material handler for 22 years and had never held a position in an office setting. Furthermore, the October 2014 VA examiner found that the Veteran's service-connected diabetic peripheral neuropathy impacted his ability to work as such disorder had slowed him considerably and he was losing dexterity. Notably, the question of employability is ultimately a legal one, not a medical one.  The evidence, as described and discussed above, clearly shows that the Veteran is not able to maintain the type of employment he is experienced in due to his service-connected disabilities.  

Thus, based on the analysis above and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful employment.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, Gilbert, supra. Therefore, entitlement to a TDIU is warranted.


ORDER

A TDIU is granted. 



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs