Citation Nr: 1805616 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 07-35 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jarrette A. Marley, Counsel INTRODUCTION The Veteran had active service in the United States Army from February 1970 to October 1971, including service in the Republic of Vietnam from July 1970 to July 1971. His decorations include the Combat Infantryman Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge in March 2010. In October 2016, he was advised that the VLJ who took his testimony was no longer employed by the Board, and given 30 days to request a new hearing. He did not respond. The Board notes that a May 2017 VA peripheral neuropathy examiner found the Veteran's service-connected bilateral lower extremity peripheral neuropathy was moderate in severity, warranting an increased rating. The Board does not have jurisdiction over the rating assigned to the Veteran's bilateral lower extremity peripheral neuropathy, and current regulations do not allow for examination report to be construed as informal claims. The Veteran is therefore advised to file the requisite claim form, should he seek an increase in disability for these conditions in light of the examination findings. FINDING OF FACT The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a grant of TDIU 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 A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in 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, 168 (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 degree in education and his part-time work as a tutor). The Veteran's service-connected disabilities are posttraumatic stress disorder (PTSD) at 50 percent disabling, type 2 diabetes mellitus, tinnitus, bilateral cataracts, bilateral hearing loss, erectile dysfunction, and peripheral neuropathy of the bilateral upper and lower extremities, for a combined 80 percent rating. Therefore, he satisfies the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). What remains to be determined is whether the functional impairment associated with his service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. The evidence shows that the Veteran's worked as a stockman for a railroad company for approximately 37 years, which involved operating a forklift, loading and unloading trucks, checking materials in and selling materials out, and delivering materials to shops. See February 2006 private treatment record. His educational background includes four years of high school. See November 2006 VA Form 21-8940. The Veteran has been unemployed since January 2005 when he suffered a work-related head injury for which he underwent a C5-C6 anterior microdiscectomy and anterior cervical fusion. See May 2005 private treatment records. He also recently suffered a stroke. The pertinent evidence of record includes a March 2006 Railroad Retirement Board disability briefing document in which it was determined that the Veteran could no longer do past relevant work since January 2005, in part due to his nonservice-connected cervical spine disability, and in part due to his service-connected PTSD and diabetes. It was noted that a March 2006 consultative medical opinion found the Veteran was limited to lifting or carrying up to 20 pounds occasionally, and up to 10 pounds frequently (i.e., limited to light work). It was also noted that the Veteran must avoid hazards such as machinery and heights. On May 2017 VA diabetes mellitus examination, the examiner noted that if the Veteran overexerts himself, he becomes hypoglycemic, and that he is required to monitor his blood glucose several times per day and give himself insulin injections four times per day. On May 2017 VA peripheral neuropathy examination, the examiner found that the Veteran's gait and balance were affected by his bilateral lower extremity peripheral neuropathy, and he would be unable to ambulate long distances due to his abnormal gait and balance related to his peripheral neuropathy. The Veteran has competently and credibly testified that he is unable to hold onto anything from the pain caused by his upper extremity peripheral neuropathy. See March 2010 Board hearing transcript at 19. On May 2017 VA audiological examination, it was noted the Veteran had no difficulties when in one-on-one conversation. It was advised that the Veteran may function best in a supervisory role due to his expertise to pass on to other workers. On June 2017 VA PTSD examination, the Veteran reported he could get short-tempered with co-workers at times if triggered. He also stated he did not like being around a lot of people. The examiner opined that given the appropriate setting, training, environment, treatment and support, it was likely the Veteran would be able to effectively function in an occupational environment. After a review of the evidence of record, the Board finds that, when resolving any reasonable doubt in the Veteran's favor and without considering any impact of his age or non-service connected disabilities, including his cervical spine disability and recent stroke, the evidence supports award of a TDIU. In reaching this determination, the Board emphasizes that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this regard, the Board finds significant that the Veteran's employment history has consisted of one job that was physical in nature. Additionally, he has never been employed in a supervisory capacity and does not possess computer or typing skills. See April 2007 VA treatment record. Based on the Veteran's impairment caused by his service-connected upper and lower extremity peripheral neuropathy (inability to hold onto objects, impaired gait and balance), diabetes mellitus (inability to exert himself), and PTSD (conflict with co-workers and anxiety in certain situations, particularly when around a lot of people), as well as the various medications to control the severity and symptomatology of the Veteran's service-connected disabilities, and considering the Veteran's individual employment history and partially favorable findings of the Railroad Retirement Board, the Board finds that the evidence is at least in equipoise regarding whether the functional impairment associated his service-connected disabilities, alone, is of such nature and severity as to prevent him from securing or following a substantially gainful employment. Accordingly, a TDIU is warranted. ORDER A TDIU is granted. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs