Citation Nr: 1801670 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-13 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. REPRESENTATION Veteran represented by: Diane Haar, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1961 to August 1966. This matter is before the Board of Veterans'Appeal (Board) on appeal of a November 2012 rating decision of the Honolulu, Hawaii, Regional Office (RO) of the Department of Veterans Affairs. In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. FINDING OF FACT The Veteran's service-connected disabilities, alone, preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities are met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. § 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In light of the fully favorable decision as to the issue of entitlement to a TDIU, no further discussion of compliance with VA's duty to notify and assist as to that issue is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). II. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. 4.16(a). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. 4.16(a). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. 4.16(a). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by non-service connected disabilities. See 38 C.F.R. 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The Veteran is currently service-connected for diabetic neuropathy associated with diabetes mellitus with erectile dysfunction, rated as 80 percent disabling; posttraumatic stress disorder (PTSD), rated as 50 percent disabling; bilateral hearing loss, rated as 30 percent disabling; coronary artery disease with myocardial infarction status post coronary artery bypass surgery rated as 30 percent disabling; diabetes mellitus with erectile dysfunction, rated as 20 percent disabling, left lower extremity diabetic peripheral neuropathy (sciatic nerve) associated with diabetes mellitus with erectile dysfunction, rated as 20 percent disabling; right lower extremity diabetic peripheral neuropathy (sciatic nerve) associated with diabetes mellitus with erectile dysfunction, rated as 20 percent disabling; left lower extremity diabetic peripheral neuropathy (femoral nerve) associated with diabetes mellitus with erectile dysfunction, rated as 20 percent disabling; right lower extremity diabetic peripheral neuropathy (femoral nerve) associated with diabetes mellitus with erectile dysfunction, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and residual scar associated with coronary artery disease, rated as 0 percent disabling. The Veteran asserts that he is too disabled to work on account of his service-connected disabilities, especially posttraumatic stress disorder. In this case, the Veteran meets the threshold requirements for TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Throughout the appellate period, the Veteran had a combined rating of 70 percent or more. Additionally, in October 2017 the Veteran received a rating of 80 percent for diabetic neuropathy. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). With the threshold requirements met, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. In determining whether the Veteran is capable of obtaining and maintaining gainful employment, the Board must consider the Veteran's work history education, and any special training. The Veteran attended three years of college with no additional special training. The Veteran has been unemployed since 1995, prior to which he worked as a general contractor. At the April 2017 Board hearing, the Veteran testified that he was always tired and would get angry with others at work, which is why he left his job. The record reflects that the Veteran repeatedly alleged irritability and difficulty maintaining focus; in addition to, frequent fatigue, shortness of breath, difficulty controlling his blood sugars, and severe numbness in his feet. The Veteran is competent to report such symptoms and their effects on his ability to work, as they are lay observable. Jandreau v. Nicholson, 492 F.3d 1372 (2007). In September 2012, the Veteran underwent a VA examination for PTSD and reported irritability, difficulty maintaining focus, and daydreaming, which caused significant problems in managing and working with others. The VA examiner opined that the Veteran does have significant symptoms that impact his ability to fully function in a working environment including irritability, difficulty with conflict, social withdrawal and being distracted but found that he is not rendered unemployable. In May 2014, at another VA examination for PTSD, the VA examiner noted the Veteran had reduced reliability and productivity due to his occupational and social impairment. Review of the Veteran's mental health treatment notes from the VA, notes complaints of anxiety, nightmares, and irritability. In April 2016, the VA examination for the Veteran's heart condition noted that the Veteran's heart impairment affected his ability to work and that he would be limited in performing prolonged strenuous activities. Additionally, the Veteran's treatment records report that the Veteran complained of tiredness in the afternoon and feeling like he is going to "blank" out. The doctor's impression noted that the Veteran's fatigue in the afternoon may be related to hypoglycemia. See CAPRI July 2016. The Veteran went to a VA examination for diabetes in October 2017, where he reported difficulty managing his blood sugar and severe numbness in his feet. The VA examiner noted that his treatment required a restricted diet, oral hypoglycemic agents, and insulin, which requires more than one injection per day but opined that Veteran's diabetes did not affect or impact his ability to work. The Veteran's private physician, Dr. T.C., in June 2017, opined that the Veteran is rendered incapable to working due to his ongoing, unresolved problems with attention, insomnia, mood, and hyper-vigilance. Dr. T.C. specifically stated "he is unable to sustain attention due to intrusive thoughts that render him incapable of following instructions in a reliable manner. His insomnia, additionally, is of such a type as to sap his daytime energy. He is typically home-bound, and engages in limited social activity outside those of his extended family and immediate neighbors." See Medical Treatment Record Non-Government Facility June 2017. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is at least in relative equipoise on the question of whether the Veteran is unable to follow a substantially gainful occupation as a result of his service-connected disabilities. Given the Veteran's credible lay statements regarding the impact of his service-connected disabilities on his ability to work and the functional limitations described by both VA and private examiners, the Board finds that the Veteran's service-connected disabilities likely prevent him from obtaining and maintaining gainful employment. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner). Accordingly, resolving all doubt in favor of the Veteran, the criteria for a TDIU has been met, and the claim is granted. ORDER Entitlement to TDIU is granted. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs