Citation Nr: 18141042 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-18 117 DATE: October 9, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT With full consideration of the Veteran’s educational and occupational background, the evidence of record is in equipoise as to whether his service-connected disabilities combine to render him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 5107 (2012); 38 C.F.R. §§ 3.341 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from February 1986 to February 1990. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Service Connection- TDIU Legal Criteria A total disability rating for compensation purposes may be assigned when 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 a result of a service-connected disability. 38 C.F.R. § 4.16 (a); see also 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341 (2013). Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce as to the poverty threshold for one person. Consideration shall be given in all claims to the nature of the employment and the reasons for termination. 38 C.F.R. § 4.16 (a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16 (a). In determining whether the Veteran is entitled to a TDIU rating, consideration may be given to his level of education, special training and previous work experience, but neither his advancing age nor impairment from his nonservice-connection disabilities may be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unemployability, in service-connected claims, associated with advancing age or intermittent disability, may not be used as basis for a total disability rating. 38 C.F.R. § 4.19. The Veteran is service-connected for: right upper extremity diabetic peripheral neuropathy at 30 percent, left upper extremity diabetic peripheral neuropathy at 20 percent, diabetes mellitus (DM) type 2 with renal failure and diabetic retinopathy at 20 percent, left lower extremity diabetic peripheral neuropathy at 20 percent, right lower extremity diabetic peripheral neuropathy at 20 percent, left lower extremity diabetic peripheral neuropathy at 20 percent, tinnitus at 10 percent, bilateral hearing loss at 10 percent, scar of the right inguinal area at 10 percent, and status post right inguinal herniorrhaphy at noncompensable rating for a combined rating of 80 percent. The Veteran’s rating for diabetes mellitus type 2 and peripheral neuropathy of the upper and lower extremities are from a common etiology and are considered as one disability. As such, the Veteran meets the minimum percentage requirement as set forth in 38 C.F.R. § 4.16 (a). The determinative issue is whether the Veteran is unemployable due to his service-connected disabilities. A May 2013 SSA disability decision shows that it was determined that the Veteran’s disabilities of DM with peripheral neuropathy, right shoulder glenohumeral arthritis, and bilateral shoulder adhesive capsulitis was not disabling under the standards set by social security standards. It was determined that the Veteran was capable of light exertional occupations. In August 2014, the Veteran submitted a TDIU application (VA Form 21-8940). He indicated that he had a high school education. He also indicated that he was last employed in December 2008 in the retail industry. The Veteran wrote that his service-connected disabilities combined caused him to be unable to secure gainful employment. In June 2014, the Veteran was afforded a diabetic sensory-motor peripheral neuropathy VA examination. The Veteran reported that he first developed symptoms of hand and foot paresthesias in about 2007. He was diagnosed with diabetic peripheral neuropathy and was prescribed gabapentin at that time. He had a history of fluctuating blood sugars and uncontrolled DM. He was currently treated for his peripheral neuropathy with venlafaxine 225 mg daily. The Veteran reported that he no longer experienced pain or paresthesias to the extremities, but now had significant numbness to the hands and feet. He indicated that he recently had bilateral great toe infections that required great toenail removal, and that he did not experience any pain with this. The Veteran was right hand dominant. The Veteran had moderate numbness in his bilateral upper extremities and had severe numbness in his bilateral lower extremities. The Veteran did not have any constant pain, intermittent pain, and paresthesias/dysesthesias in his bilateral upper and lower extremities. The Veteran had incomplete paralysis in his radial nerve in the bilateral upper extremities at a moderate level of severity. The Veteran had incomplete paralysis in his sciatic nerve at a moderate level of severity. The examiner opined that the Veteran’s diabetic peripheral neuropathy impacted his ability to work. The examiner noted that the Veteran last worked as a retail clerk in June 2009. The Veteran quit his job due to moving to a new state. He indicated that the Veteran did go through computer training and was unable to find work. The examiner concluded that it was his medical opinion that the Veteran had functional limitations related to significant numbness of the bilateral hands and feet caused by his service-connected diabetic peripheral neuropathy that would preclude the Veteran from engaging in any meaningful physical labor. However, he would not otherwise be limited from working in a sedentary capacity based on his diabetic peripheral neuropathy. In June 2014, the Veteran was afforded a hernia VA examination. The Veteran reported that he had a hernia repair in August 1988.The Veteran reported that he had occasional pain in the area of the scar. The Veteran denied any recent medical care related to his right inguinal hernia and associated scar. The examiner opined that the Veteran’s hernia condition did not impact his ability to work. The Veteran had no functional limitations when considering his service-connected status-post right inguinal herniorrhaphy with residual scar. In June 2014, the Veteran was afforded a scars/disfigurement VA examination. The examiner noted that the Veteran had scars that were painful. The Veteran reported that he occasionally got twinges of pain around the right inguinal hernia scar. The examiner opined that the Veteran’s scar or disfigurement did not impact his ability to work. The examiner noted that the Veteran’s status-post right inguinal herniorrhaphy with residual scar had no functional limitations. In June 2014, the Veteran was afforded a hearing loss VA examination. On the authorized audiological evaluation in 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 45 45 40 40 LEFT 30 55 50 55 60 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 76 percent in the left ear. The examiner noted that the Veteran’s hearing loss did impact ordinary conditions of daily life, including his ability to work. However, the examiner concluded that it was her medical opinion that the Veteran did not have a functional limitation when considering his service-connected hearing loss and tinnitus. She noted that her opinion was supported by the degree of hearing loss and the Veteran’s reports that his hearing loss or tinnitus did not interfere with his ability to obtain and maintain substantially gainful employment. In June 2014, the Veteran was afforded a DM VA examination. The Veteran’s DM treatment included insulin with more than one injection per day. The Veteran had complications of DM which included diabetic peripheral neuropathy and diabetic retinopathy. The examiner opined that the Veteran’s DM (and complications of DM if present) did not impact his ability to work. The Veteran was not currently working. He last worked as a retail clerk in June 2009. The Veteran quit that job due to moving to Cincinnati from West Virginia. The Veteran went through a computer training program at Goodwill and had since been unable to find work. The VA examiner concluded that the Veteran had no functional limitations when considering his service-connected and claimed conditions of diabetes mellitus type 2 and renal failure secondary to diabetes mellitus type 2. In June 2014, the Veteran was afforded an eye VA examination. The Veteran was diagnosed with proliferative diabetic retinopathy left eye, non-proliferative diabetic retinopathy right eye, and clinically significant diabetic macular edema both eyes. The Veteran reported that he had blurred vision in his left eye. The Veteran had a retinal condition that caused a mild decrease in vision of the left eye secondary to diabetic macular edema (20/40). The examiner opined that the Veteran’s eye condition did not impact his ability to work. The examiner concluded that the Veteran had severe non-proliferative diabetic retinopathy right eye with mild macular edema. The examiner noted that vision was still correctable to 20/20 in the right eye. The Veteran had proliferative diabetic retinopathy with clinically significant macular edema in his left eye. The examiner noted that vision was correctable to 20/40 in the left eye. The examiner noted that the Veteran was scheduled with a retina specialist and would likely have retinal laser therapy to address neovascularization and macular edema. A September 2014 VA treatment note documented that the Veteran had hand cramping. The examiner noted that the hand cramping was worse with use. The Veteran did not have any perioral numbness. In November 2014, the Veteran had a vocational assessment. W.C. indicated that the Veteran is service-connected for bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral, DM with renal failure and diabetic neuropathy, hearing loss, tinnitus, and scar on his right inguinal area. The Veteran graduated from high school and had a course in Microsoft Office. The Veteran was exposed to the use of the Microsoft program to write letters and perform simple office tasks. The Veteran previously worked as a truck mechanic, roofer, forklift operator, assembler factory laborer, post office mail sorter, stock clerk, surveyor’s helper, and as a retail clerk. W.C. indicated that none of the Veteran’s acquired skills transfer to jobs performed at the sedentary level of physical demand. W.C. noted that the Microsoft Office course he completed did not provide the Veteran with enough skills to perform any kind of competitive job. W.C. noted that the that VA examiners agreed that the Veteran had difficulty using his hands secondary to his service-connected neuropathy. He indicated that the Veteran had significant numbness of the bilateral hands and feet. W.C. wrote that the Veteran was limited to no more than occasional handling or fingering because of his service-connected peripheral neuropathy in his upper extremities. He wrote that the Veteran had limited ability to stand as a result of his peripheral neuropathy in his lower extremities. Therefore, the Veteran was only limited to sedentary work activity. He noted that only unskilled and semiskilled sedentary work could be considered appropriate for the Veteran. However, W.C. noted that unskilled and semiskilled sedentary jobs required at least the ability to handle and/or finger at a frequent level. Frequent handling and fingering meant that these activities performed at least two thirds of the 8-hour workday. W.C. opined as a vocational expert that the Veteran was permanently and totally occupationally disabled. He noted that this conclusion was reached considering the Veteran’s education, work history, and his limitations that he had as a result of his service-connected disabilities. Based upon a full review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities renders him unable to secure or follow substantially gainful employment. The Veteran does not have a college degree, and evidence reveals that he has worked as a truck mechanic, roofer, forklift operator, assembler factory laborer, post office mail sorter, stock clerk, surveyor’s helper, and as a retail clerk. The Veteran’s severe peripheral neuropathy of the bilateral lower extremities eliminates potential employment which requires physical activity. Additionally, the Veteran’s peripheral neuropathy of the bilateral upper extremities would limit sedentary work. The Veteran has complained of numbness in his upper extremities. Furthermore, the private vocational assessment shows that the Veteran would have a difficulty using his hands at a sedentary type of employment. A September 2014 VA treatment note documents that the Veteran complained of hand cramps. Potential sedentary employment would be prevented because the symptoms associated with the service-connected peripheral neuropathy of the upper extremities. While the VA opinion did not conclude that the Veteran was unable to obtain or retain substantially gainful employment, the November 2014 private vocational expert opinion did conclude that the Veteran was unemployable. The Board finds that the opinions are both competent and credible. The Board acknowledges that the May 2013 SSA disability decision determined that the Veteran’s service-connected DM with peripheral neuropathy and other non-service connected disabilities did not cause him to be disabled under social security standards. Regardless, the decision of whether a Veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that “applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.”). The Board has the ultimate authority to decide whether or not the Veteran is employable and finds that the evidence indicates the Veteran was unable to maintain employment due to his service-connected disabilities. Considering the Veteran’s education, job history, and the severity of his service-connected disabilities, the Board finds that the evidence, to include the medical opinions of record, is at least in equipoise, and entitlement to TDIU is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel