Citation Nr: 1802308	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  16-36 954	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

P. Poindexter, Associate Counsel 

INTRODUCTION

The appellant is a Veteran who served on active duty from April 1976 to June 1986 and had 15 years and 8 months of prior active service.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). In October 2017 a hearing was held before the undersigned in Washington, D.C.; a transcript of the hearing is in the record.

[The Veteran's service connected disabilities have been assigned a 100 percent combined schedular rating, effective February 8, 2016, rendering moot entitlement to a TDIU rating from that date.  Accordingly the focus of this decision will be on entitlement to a TDIU rating prior to February 8, 2016.]

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).


FINDINGS OF FACT

From September 19, 2012 to January 22, 2014, the Veteran's service-connected disabilities [posttraumatic stress disorder (PTSD), rated 50 percent, diabetic nephropathy with hypertension, type2 diabetes mellitus with retinopathy and erective dysfunction (ED), and neuropathy of both lower extremities], were rated 80 percent, combined; from November 2013 they have included bilateral hearing loss; from January 22, 2014 to February 7, 2016, they have also included peripheral neuropathy of both upper extremities, and were rated 90 percent, combined; from March 23, 2016, they have included tinnitus; throughout, they are reasonably shown to have been of such nature and severity as to preclude his participation in substantially gainful employment consistent with his education and experience.




CONCLUSION OF LAW

The schedular criteria for a TDIU rating are met throughout, and a TDIU rating is warranted throughout.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.25 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  As the benefit sought is being granted there is no reason to belabor the impact of the VCAA on the matter, as any notice or duty to assist omission is harmless.

Legal Criteria, Factual Background, and Analysis

A TDIU rating may be assigned, where the schedular rating is less than total, when a Veteran is unable to maintain a substantially gainful occupation as a result of service connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16.  If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).
In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but age and impairment caused by nonservice-connected disabilities are not factors for consideration.  38 C.F.R. §§ 3.341, 4.16, 4.19.
From September 19, 2012 to January 22, 2014 the Veteran's service connected disabilities (PTSD, rated 50 percent, diabetic nephropathy with hypertension, diabetes with retinopathy and ED, and peripheral neuropathy of the lower extremities were rated 80 percent combined.  From November 2013, they have included bilateral hearing loss.  From January 22, 2014 they have also included peripheral neuropathy of both upper extremities, and were rated 90 percent combined.  From March 2016 they have included tinnitus.  Therefore, the 38 C.F.R. § 4.16(a) schedular rating requirement for a TDIU rating is met.  The remaining (and dispositive) question is whether the service-connected disabilities have rendered him incapable of participating in a regular substantially gainful occupation consistent with his education and work experience.
The Veteran has reported that he completed four years of college.  Following service, he was self-employed, in lawn service and worked briefly for a school board.  See January 2014, August 2016 and November 2016 VA Forms 21-8940.  He has reported that he last worked full-time in April 2002.  
On September 2013 VA hypertension examination, the Veteran reported that that he was able to walk for fifteen minutes without problems.  On clinical examination, his blood pressure readings were 144/76, 142/72, and 140/70.  It was noted that the Veteran was on continuous medication for hypertension.  The examiner opined that the Veteran's hypertension did not impact his ability to work.
On September 2013 VA diabetes examination, it was noted that the Veteran's type 2 diabetes mellitus was managed by restricted diet, prescribed oral hypoglycemic agents and more than one daily injection of insulin.  It was also noted that he did not have restrictions on activity for medical management of diabetes mellitus.  His diabetes mellitus complications consisted of diabetic peripheral neuropathy and diabetic nephropathy and renal dysfunction.  The examiner opined that the Veteran's diabetes mellitus did not impact on his ability to work.  
On September 2013 VA peripheral neuropathy examination, the diagnosis was diabetic peripheral neuropathy of the lower extremities.  The examiner opined that the Veteran's neuropathy impacts on his ability to work because it "affects sustained or strenuous work but allows sedentary or limited activity".  
On November 2013 PTSD examination, the Veteran reported that he has very few friends and spends most of his time in his workshop.  He took Prazosin.  His symptoms included: anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stress circumstance.   The examiner noted that the Veteran's degree of impairment was best summarized as occupational and social impairment with reduced reliability and productivity.  
On July 2014 PTSD examination, the Veteran reported depressed mood over the past month and feelings of worthlessness.  He felt distant from others.  He also reported irritability or angry outbursts once a week, difficulty concentrating, sleep difficulties and unwanted memories.  The examiner noted that the Veteran's PTSD symptoms included: anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships.   The examiner noted that the Veteran's degree of impairment was best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The examiner opined that the Veteran's PTSD symptoms would likely impact on his ability to function in any occupational environment, and that the Veteran's reported chronic sleep difficulties would impact on performance in sedentary or physical environments that require alertness or attention to detail and his irritability would impact on functioning in environments that require interaction with others, including supervisors and coworkers.   
In a January 2015 letter, the Veteran's private physician noted that his diabetes was uncontrolled; he was being maintained on Lantus insulin 70 units twice a day, Novolog Flexpen 20 units three times daily and Metformin 1000 mg twice daily. 
In a February 2015 statement the Veteran related that he blacks out when his blood sugar drops, and that the blackouts prevent him from obtaining employment.  He stated that due to his neuropathy he sometimes has to "sit down, remove [his] shoes and socks in order to massage away some of the pain and burning sensation."  
On November 2015 examination, the examiner opined that the Veteran's ED does not impact on his ability to work. 
On a May 2016 PTSD evaluation, the examiner indicated that the Veteran's degree of impairment due to PTSD was best summarized as occupational and social impairment with reduced reliability and productivity.
On May 2016 and June 2017 DBQs, the examiner opined that the Veteran's bilateral hearing loss and tinnitus impacts ordinary conditions of daily life, including his ability to work.  He noted that the Veteran wears hearing aids in both ears and reported difficulty understanding speech and trouble hearing sirens and horns while driving.   
At the October 2017 hearing before the undersigned, the Veteran testified that his PTSD interferes with his ability to work.  He testified that he has not worked in approximately five years.  He testified that he had a lawn service business but due to his physical disabilities he was no longer able to maintain the business.  He also testified that when his sugar drops too low, he passes out. 
Given the nature and severity of the Veteran's service connected disabilities throughout (most notably PTSD, type II diabetes mellitus and peripheral neuropathy) and his limited occupational experience, the Board finds it reasonably shown that his service-connected disabilities have rendered him unemployable throughout.   
The Board finds that the effects of the Veteran's peripheral neuropathy considered with those due to diabetes, preclude him from participating in any type of employment that requires prolonged standing or walking, or any substantial physical exertion.  The Board also finds noteworthy the Veteran's report (which the Board finds no reason to question) that he passes out when his blood sugar drops.  Notably, his private treating physician has observed that the Veteran is taking high dosage medication to control his diabetes.  VA psychiatric examiners have opined that the Veteran's degree of impairment is best summarized as occupational and social impairment with reduced reliability and productivity.  A July 2014 PTSD examiner noted that the Veteran's PTSD symptoms impact on his ability to perform in physical and sedentary environments requiring alertness, attention to detail interaction or with others.  The medical evidence cited reasonably supports that that symptoms of the Veteran's PTSD preclude his participation in the less strenuous/sedentary forms of employment.
In summary, it is reasonably shown that due to the cumulative effect of his service connected disabilities the Veteran has been precluded from participating in both physically demanding and less strenuous/sedentary forms of employment.  Resolving any remaining reasonable doubt regarding degree of disability in the Veteran's favor as required (see 38 C.F.R. § 4.3), the Board finds that the requirements for establishing entitlement to a TDIU rating are met, and that such rating is warranted throughout the period under consideration.   


ORDER

A TDIU rating is granted throughout, subject to the regulations governing payment of monetary awards.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs