Citation Nr: 1801084 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-09 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). ORDER Entitlement to TDIU is granted. FINDINGS OF FACT 1. The Veteran has a combined disability rating of 90 percent with one disability rated as 70 percent disabling. 2. The Veteran's service-connected disabilities preclude gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for the grant of TDIU have been met. 38 U.S.C. §§ 5110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1969 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In an April 2015, the Veteran requested a video conference hearing before the Board. In a February 2017 communication, the Veteran withdrew his hearing request. As such, the Board considers the hearing to be withdrawn. The Veteran asserts that he is permanently unemployable due to service-connected disabilities, and that a TDIU rating is warranted. 38 C.F.R. § 4.16 (2017). The record indicates that the Veteran has not been gainfully employed since November 2010. See November 2010 TDIU claim. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, TDIU may be granted when it is established that the service-connected disabilities are so severe as to prevent securing or following substantially gainful employment. If there are two or more service connected disabilities, there must be at least one disability rated 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a) (2017). Service connection is in effect for posttraumatic stress disorder (PTSD), rated 70 percent; diabetes mellitus type II with erectile dysfunction, rated at 20 percent; left lower extremity peripheral neuropathy, rated at 10 percent; right lower extremity peripheral neuropathy, rated at 10 percent; left upper extremity peripheral neuropathy, rated at 10 percent; right upper extremity peripheral neuropathy, rated at 10 percent; hypertension, rated at zero percent (noncompensible); and atrial fibrillation, rated as noncompensible. The combined service-connected rating for compensation is 90 percent. The schedular criteria for consideration of TDIU pursuant to 38 C.F.R. § 4.16 (a) have therefore been met. The remaining question is whether the Veteran's service-connected disabilities render him unemployable. The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating is in itself recognition that the disability makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Records show that the Veteran worked at a plywood mill upon separation from service 1971 to 1977. See February 2011 VA PTSD examination in VBMS. He completed two years of college from 1977 to 1979 in the field of civil engineering. The evidence of record shows that the Veteran had worked as a traffic engineer from 1980 to November 2010. He last worked full-time on October 31, 2010, and became too disabled to work the same month (as of November 1, 2010). See November 2010 claim for TDIU. The Veteran underwent a VA PTSD examination in February 2011. The Veteran reported that, prior to enlistment in the military, he worked part-time at gas stations, did farm work, and worked at a plywood mill. The Veteran related that once he was released from service, he again worked at the plywood mill for six years, but had to stop due to two serious back injuries. The Veteran reported that then he went to a community college for two years and studied civil engineering, which qualified him to work for the Oregon Department of Transportation. He worked there for 30 years before retiring, working his way up from doing survey work to being a project manager. The Veteran reported that during periods of high stress, which were frequent, he became even more irritable and detached from those he worked. He also related that during the last few years of his career he became increasingly fatigued and lost the satisfaction he used to have at work. He related that he never completed his two-year degree and denied any other post-secondary education. He reported significant levels of distress and impairment in social and occupational functioning. The examiner opined that the Veteran would be successful in securing and maintaining substantially gainful employment, but that he may require sedentary employment that was loosely supervised and required little interaction with the public. See February 2011 VA PTSD examination in VBMS. The Veteran underwent a VA general examination in February 2011. The examiner noted that the Veteran did construction under a contract for the Oregon Department of Transportation, and returned as of November 1, 2011 due to age or duration of work. The Veteran related that his peripheral neuropathy resulted in a loss of sensation and a burning sensation in his feet, walking and driving made the sensations worse, and elevating his feet, changing positions, flexing, and foot bath massages "made the discomfort tolerable." He reported tingling in the last three fingertips of the left hand, and that his right hand was numb. Flexing and wearing braces made it better, and typing and repetitive motion made it worse. The examiner opined that sedentary to moderate duty employment may be feasible allowing frequent breaks and position changes, but that repetitive motion such as typing would not be feasible. The examiner also opined that as long as the Veteran is compliant with his hypertension treatment, it is unlikely that he would be prevented from securing or maintaining gainful employment, including sedentary employment. The examiner added that sedentary to light duty employment that allowed for rest breaks preventing over-exertion would be feasible. See February 2011 VA general examination, in VBMS. A September 2011 VA hearing examiner opined that the Veteran's bilateral hearing loss and tinnitus had no impact on his work. The Veteran has provided a medical opinion from his private physician, who has treated him for over 20 years, that related that the Veteran's service-connected disabilities of diabetes mellitus type II, bilateral peripheral neuropathy of the upper and lower extremities, and hypertension prevent him from securing and maintaining gainful employment. The physician stated that he based his medical opinion on a careful review of the Veteran's records. See April 2013 private opinion (received May 2013). The Veteran has provided statements relating that he had to retire early due to health issues (his service-connected disabilities) and a hostile work environment, which worsened his health issues. See February 2014 notice of disagreement (NOD). A lay statement from a co-worker of over 25 years stated that the Veteran was essentially forced to retire early due to health issues and work stress, which impacted his health problems. See February 2014 lay statement. The Board notes that the Veteran has been considered disabled by the Social Security Administration (SSA) effective October 31, 2010, with a primary diagnosis of "peripheral neuropathy" and secondary of "anxiety disorders." The Veteran's previous work experience appears to exclusively involve performing physical labor and work which kept him active (on-site project management). There is no indication that he has ever held a sedentary or office-type job. This is important because according to the medical records and lay statements in the record, the Veteran is essentially unable to perform manual physical or active work, as he can no longer perform many of the functions necessary for such employment due to his service-connected disability symptoms. The Veteran is also unable to perform any office-type or work because he is unable to sit for extended periods of time, needs to change positions, and cannot type or perform any such repetitive motions. In sum, the Veteran cannot perform any work which would cause him exertion, and cannot perform work which is more sedentary in nature. The medical professional who has examined and treated the Veteran for over 20 years has stated that the Veteran's service-connected disabilities prevent him from securing and maintaining gainful employment. The Board finds this opinion most persuasive as the physician's decision was made based on his review of the Veteran's treatment records. In addition, all medical opinions on record agree that that the Veteran exhibits those symptoms and that those symptoms impair him physically and occupationally. The Veteran's highest level of education was a couple of years of college. There is no indication in the record that the Veteran has the training, education, or experience that would render him able to maintain employment not requiring standing, walking, or sitting such as sedentary office employment, or that he would be able to complete training leading to such employment. Indeed, per the medical examiners, the Veteran is unable to sit for extended periods of time, as he needs to change positions due to his peripheral neuropathy. All of this combined would preclude him from securing and maintaining gainful employment. The Board finds that the evidence supports a finding that the Veteran is not able to secure or follow substantially gainful employment. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Indeed, coupled with his education, work experience, and employment history, his service-connected disabilities are shown to cause significant impairment in the physical and occupational areas. Thus, the criteria for the award of a TDIU have been met. ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel Copy mailed to: Oregon Department of Veterans Affairs Department of Veterans Affairs