Citation Nr: 18140111 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-18 386 DATE: October 2, 2018 ORDER Entitlement to a total disability rating based on unemployability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to October 1973. The Veteran died in November 2014. The appellant is the Veteran’s surviving spouse and has been substituted in the claim. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Veteran was service-connected for diabetes mellitus, type II, with mild non-proliferative diabetic retinopathy, left eye, and cataracts in both eyes, rated as 20 percent disabling; diabetic peripheral neuropathy of the right upper extremity, rated as 20 percent disabling; diabetic peripheral neuropathy of the left upper extremity, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; diabetic peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; diabetic peripheral neuropathy of the left lower extremity, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensable. The disabilities had a combined rating of 70 percent. In this case the percentage criteria for a TDIU under 38 C.F.R. § 4.16(a) are satisfied, as the Veteran had a combined rating to 70 percent or more and the disabilities that resulted from the common etiology of diabetes resulted in a disability rating of 40 percent or more (60 percent). 38 C.F.R. § 4.16(a). The central inquiry in a claim for TDIU 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). In this case, for the reasons discussed below, the Board finds that the evidence of record weighs against a finding that the Veteran’s service-connected disabilities were of sufficient severity to render him unable to follow a substantially gainful occupation. In his March 2011 claim for a TDIU, the Veteran stated that he had last worked full time in April 2006. He indicated he had worked as a custodian from October 2009 to September 2010, and as a dry waller from April 2001 to April 2006. He stated that he could not continue working due to his service-connected conditions. A January 2012 response from his last employer indicated he was on probation as a custodian, and it did not work out. A May 2011 general medical examination reflects that he reported working as a part time custodian and was a retired carpenter. He stated he was fired in September 2010 and was not currently looking for work. He claimed if work was available he would pursue it. The VA examiner opined that “no conditions for which the [V]eteran is service connected related to medical problems allow the [V]eteran to be considered qualified for individual unemployability.” The examiner found at that point the Veteran would be able to be gainfully employable although he requires significant vigilance and better care for diabetes mellitus. No functional impairment or issues relating to unemployability were currently known. In a May 2013 notice of disagreement, the Veteran stated that his service-connected disabilities of diabetes mellitus, type II, and peripheral neuropathy of the bilateral upper and lower extremities caused fatigue and made him unable to handle/carry/lift/push/pull heavy items. He stated he could not lift large sheets of drywall, climb ladders, or handle large brooms/mops, vacuum cleaners, or industrial floor waxers/buffers. He stated that he was unable to climb up or down scaffolds, or stand or walk for any length of time. An October 2013 VA examination report indicated the Veteran reported having paresthesia of the right lateral thigh area and had an electric shock feeling in his feet that had improved after he started taking new medicines. Mild intermittent pain was noted in the bilateral upper and lower extremities. The Veteran had moderate paresthesias of the right lower extremity, and mild numbness of the right lower extremity. The VA examiner found that the diabetic peripheral neuropathy impacted his ability to work. The examiner stated it caused limitation to sensing extremes of temperatures, sensing sharp/dull objects, driving heavy machinery, and fine/gross manipulation of the hands. The report noted the Veteran was able to perform activities of daily living. An October 2013 VA eye examination noted that the Veteran’s eye conditions did not impact his ability to work. On examination the Veteran’s distance and near vision was 20/40 or better. The Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. A February 2014 VA treatment record noted that the Veteran reported walking on a regular basis. It was noted he had a neurology appointment for falls and sciatic nerve damage. A March 2014 VA treatment record indicates walking aggravated the numbness and was associated with calf fatigue, but there was no paresthesias below the knee or posterior thigh. A November 2014 VA treatment record noted that no assistance in activities of daily living was required. It was noted the Veteran used a cane but it was not with him. In an April 2016 substantive appeal, the appellant stated that she saw the Veteran struggle with his diabetes and neuropathy. She stated that it was difficult for him to do basic work around the house or work at a job. She helped dress him, get his shoes on, and helped him in and out of the shower. Based on a review of the evidence of record, the Board finds that the weight of the medical and lay evidence is against a finding that the Veteran’s service-connected disabilities rendered him unable to follow a substantially gainful occupation. The May 2011 VA examiner found that at that point the Veteran would be able to gainfully employable. The October 2013 VA examiner found that while the Veteran’s diabetic peripheral neuropathy impacted his ability to work, he was able to perform activities of daily living. The Veteran was limited in sensing extremes of temperatures, sensing sharp dull objects, and driving heavy machinery, and fine/gross manipulation of the hands. The October 2013 VA eye examination report indicated the Veteran’s eye problems did not affect his ability to work. In his notice of disagreement, the Veteran stated that he could not lift or carry heavy items and was unable to climb up or down scaffolds. In the substantive appeal, the appellant stated the Veteran required assistance with dressing, and getting in and out of the shower due to his diabetes and neuropathy. However, the February 2014 VA treatment record noted the Veteran walked on a regular basis and the November 2014 VA treatment record indicated the Veteran did not require assistance with his activities of daily living. The medical evidence of record does not show the Veteran’s service-connected disabilities, including diabetes and neuropathy, prevented him from lifting objects or doing other physical tasks required for construction or janitorial work, other than sensing extremes of temperatures, sensing sharp dull objects, driving heavy machinery, and fine/gross manipulation of the hands. Such impairment also would not have precluded the Veteran from engaging in sedentary employment. The Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to work solely due to his service-connected disabilities. In conclusion, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran was unable to obtain or maintain substantially gainful employment because of his service-connected disabilities. Therefore, the claim for a TDIU must be denied. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Marenna, Counsel