Citation Nr: 18143524 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 14-40 472 DATE: October 19, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from October 1, 2010 to June 24, 2013 is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from October 1, 2010 to June 24, 2013. CONCLUSION OF LAW The criteria for a TDIU from October 1, 2010 to June 24, 2013 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to January 1973. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision. A review of the record reveals that while the Veteran initially requested a Board hearing before a Veterans Law Judge with his October 2014 formal appeal. However, prior to the hearing being held, the Veteran cancelled his hearing request. As such, since the Veteran cancelled his hearing request, the Board will proceed to adjudicate the claim on appeal. TDIU In his July 2010 TDIU claim, the Veteran contends that his service-connected disorders prevented him from engaging in substantially gainful employment and, therefore, he is entitled to a total disability rating. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran’s education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). From October 1, 2010, to present, the combined rating was at least 80 percent. The Veteran’s service-connected disabilities satisfy the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). For the period of June 24, 2013 forward, the Veteran was awarded a 100 percent combined disability rating, and special SMC under 38 U.S.C. § 1114 and 38 C.F.R. § 3.350 (a). Therefore, the period on appeal for entitlement to a TDIU is limited to the remaining period prior to June 24, 2013 (the date the Veteran was assigned a 100 percent combined disability rating and SMC) and the issue of entitlement to a TDIU from June 24, 2013 is rendered moot. Sabonis v. Brown, 6 Vet app. 426 (1994). The Veteran is no longer employed. In an application for increased compensation based on unemployability received in July 2010, he reported that he was last employed in December 2006 as a salesman. He had completed high school but denied receiving any other education or training. He contended that his service-connected depression, diabetes mellitus, renal insufficiency, diabetic retinopathy, and peripheral neuropathy disabilities prevented him from securing and maintaining substantially gainful employment. His last employer indicated in a July 2010 request for employment information that the Veteran left his employment in December 2006 due to kidney problems and pain in his hands and feet. The Board notes in July 2010, the Social Security Administration (SSA) determined the Veteran was disabled due to his psychiatric condition. SSA determinations are relevant and the records relied upon to make SSA determinations are probative evidence in consideration of the Veteran’s appeal; however, they are not binding on the Board. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Additionally, the Veteran is not service-connected for all disabilities considered by SSA. On June 2010 VA diabetes examination, the examiner noted the Veteran’s diabetes causes fatigue, requiring light duty work. He also requires insulin several times a day and oral hypoglycemics. The Veteran underwent a VA mental health examination in October 2010. The examiner opined that the Veteran has severe depression resulting in decreased energy and motivation which would interfere with his ability to perform on the job. Further, the examiner noted his psychiatric symptoms cause occupational and social impairment with reduced reliability and productivity as evidenced by disturbance in mood and motivation and difficulty establishing and maintaining relationships, with a poor prognosis for improvement. On December 2010 VA diabetic peripheral neuropathy examination, the examiner noted that the Veteran experienced odd sensations and heaviness. Further, his neuropathy and diabetes causes fatigue and exhaustion that would impact his ability to perform physical and sedentary activities. Finally, an August 2011 letter from Dr. C.O.B. opined that the Veteran is totally and permanently disabled due to uncontrolled diabetes mellitus, depression, and peripheral neuropathy. The physician noted that the Veteran’s diabetes is uncontrollable despite 294 units of insulin daily and 1000mg of metformin twice daily. The physician opined that the Veteran is unable to participate in physical activities, to include prolonged walking or standing in excess of five to eight minutes. Based upon review of the evidence, including VA treatment records and examinations, as well as lay statements provided by the Veteran, the Board finds that the Veteran was unable to secure or maintain any substantially gainful employment due to his service-connected disabilities between October 1, 2010 and June 24, 2013. The overall conclusion to be drawn from the medical evidence of record is that the Veteran’s ability to perform physical or sedentary work at this point was severely impaired due to a variety of disabilities, effecting both physical and mental capabilities. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unemployable. Therefore, the benefit of the doubt doctrine applies and a TDIU will be granted. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel