Citation Nr: 18145600 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 10-06 556 DATE: October 29, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU) from June 9, 2007 to May 2, 2011, on an extraschedular basis, is denied. FINDING OF FACT From June 9, 2007 to May 2, 2011, the Veteran’s service-connected diabetes mellitus, Type II, and bilateral diabetic peripheral neuropathy of the lower extremities, did not rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Prior to May 2, 2011, the criteria for TDIU, to include on an extraschedular basis, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to April 1972, including service in the Republic of Vietnam during the Vietnam War. The appeal was remanded by the Board in July 2012, October 2014 and January 2017, for additional development, which as further discussed below, has been substantially accomplished. The Board apologies for the delays in the full adjudication of this case. Entitlement to a TDIU from June 9, 2007 to May 2, 2011, on an extraschedular basis. The Veteran contends that from June 9, 2007 to May 2, 2011, his service-connected disabilities rendered him unemployable. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). In this case, from June 9, 2007 to April 28, 2010, the Veteran’s combined disability rating was 30 percent and service connection was in effect for diabetes mellitus, Type II, rated as 10 percent disabling; right diabetic peripheral neuropathy of the lower extremities, rated as 10 percent disabling; and left diabetic peripheral neuropathy of the lower extremities, rated as 10 percent disabling. Effective April 28, 2010, his rating for diabetes mellitus, Type II, was increased to 20 percent disabling and the Veteran’s combined disability rating increased to 40 percent. Thus, the Veteran did not meet the percentage requirements for consideration of a TDIU on a schedular basis prior to May 2, 2011. 38 C.F.R. § 4.16 (a). Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (Veterans Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon the Veteran’s actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. After a review of all of the evidence, the Board finds that the Veteran’s diabetes mellitus, Type II, and bilateral diabetic peripheral neuropathy of the lower extremities, did not render him unable to secure or follow a substantially gainful occupation prior to May 2, 2011. The Board notes that the Veteran’s occupational history, particularly as to when he stopped working, is unclear. While the Veteran has stated that he has been unemployed since September 1997, there is evidence of record that demonstrates he was not been substantially gainfully employed since 1998. There is also some evidence of additional employment thereafter, as recently as September 2009 when, according to Social Security Administration (SSA) records, he was employed full-time (eight hours a day, five days a week) as a packer at a food bank. Further, on VA examination in January 2017, he stated that he was last gainfully employed part-time in 2011. The Veteran’s occupational background includes work as an electrician and as a driver. The evidence shows that the Veteran’s highest level of education attained was high school, and he also had training as an electrician. The Veteran submitted a June 2007 VA physician statement. In this statement, the physician opined that the Veteran could not sustain meaningful employment due to diabetes mellitus with neuropathy, asthma, and carpal tunnel syndrome. However, the physician did not indicate the extent of any occupational impact of his service-connected disability of diabetes mellitus with neuropathy in contrast to his non-service-connected disabilities of asthma and carpal tunnel syndrome. The SSA produced the Veteran’s claims file, which consisted of a disability assessment by a physician in April 2007. The physician assessed the Veteran with chronic back pain, carpal tunnel syndrome, diabetes, hypertension, asthma, and depression, and opined that he was physically capable of participating in substantial gainful activity, limited to no heavy lifting, repetitive bending and twisting, prolonged standing or walking, rapid movements with wrists and hands. The SSA found the Veteran disabled as of September 17, 2009, based on his impairments of diabetes mellitus with peripheral neuropathy, asthma, bilateral hallux valgus deformities, carpal tunnel syndrome, degenerative disc disease and spondylolisthesis. As noted above, during the period on appeal, diabetes mellitus with peripheral neuropathy were the only service-connected disabilities in this list and their impact on the Veteran’s ability to maintain substantial gainful employment was not discussed. Simply stated, most of the evidence cited above indicates that the Veteran can not work as the result of service and nonservice connected problems, not his service connected problems, standing alone. The Veteran was provided a VA examination for peripheral neuropathy for his complaints of numbness in his feet in October 2007. The Veteran reported inability to stand longer than 10 to 15 minutes due to lower extremity numbness that required him to walk it off. He was able to walk ¼ mile. The VA examiner assessed the Veteran with peripheral neuropathy secondary to diabetes mellitus, type II, but did not provide an opinion as to whether the Veteran’s peripheral neuropathy impacted his occupation. The Veteran was provided a VA examination for diabetes mellitus in November 2009. The Veteran reported that he used to work as a driver until April 2009 and had to quit that due to peripheral neuropathy and low back pain. Reportedly, he was then sent to work in a warehouse but could not do work in that capacity because he could not lift, bend, or do any prolonged walking or standing. The examiner assessed the Veteran with adult-onset diabetes mellitus, type 2, which was under dietary control, and mild to moderate peripheral neuropathy in the lower extremities, which was secondary to diabetes. However, the VA examiner did not provide an opinion as to whether the Veteran’s diabetes mellitus, type II, impacted his ability to maintain substantial gainful employment. Accordingly, in January 2017 the Board remanded the claim to obtain a medical opinion addressing the impact of the Veteran’s service connected disabilities on his ability to function in an occupational setting prior to May 2, 2011, and directed the agency of original jurisdiction (AOJ) to refer the claim for a TDIU to the Director of Compensation Service for a determination. The development was accomplished and, while a VA examination was conducted instead of a vocational assessment, the Board is of the opinion that the report of examination, which revealed very thorough examination and included references to, and a discussion of, the impact of the Veteran’s mellitus and bilateral peripheral on his employability, properly answered the core question that arises from the matter on appeal, which is whether these disabilities alone rendered the Veteran unemployable. It is also noted that while the examiner did not specifically address the period prior to May 2, 2011, the examiner reviewed the records from 2005 to the present, and in any event his disabilities as they exist today, are if anything more disabling than they were during the period in question. Accordingly, the development accomplished render unnecessary another remand at this time. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). As discussed, the requested examination, when taken together with all the evidence of record, was adequate for the Board’s adjudication, and hence substantially fulfilled the remand requirements. Further delay in the full adjudication of this case, considering the delays already in this case, must be, if possible, avoided. In this case, under these limited circumstances, the Board finds that it can proceed in this case and that further development serves no constructive purpose. The VA examiner in January 2017, noted the Veteran was last employed part time in 2011 as a driver, and although he was a skilled electrician, he was unable to work in this capacity due to his limitations with prolonged standing or sitting, and his inability to grip objects. The Veteran also related frequent back spasms. He also reported inability to sit down for too long. Following an examination of the Veteran and a review of the claims file, the examiner found that the Veteran’s diabetes mellitus did not affect his ability to be substantially employed in any capacity. While his bilateral sensory neuropathy of the lower extremities did impair his ability to do any prolonged standing or walking, if he were able to take sitting breaks, he would be capable of working in physical or sedentary employment. The examiner noted that the Veteran’s major factors impacting his physical employability were his low back and knee problems. He was capable of sedentary employment. The Board notes that the AOJ referred the issue of consideration of an extraschedular rating for a TDIU to the Director of Compensation and Pension Service. Here the Director issued a decision that concluded that an extraschedular rating was not warranted. However, pursuant to Wages v. McDonald, 27 Vet. App. 233, 236 (2015), nothing in the language of 38 C.F.R. § 4.16 (b) purports to limit the Board’s scope of review of the Director’s decision and that the Board shall be the final authority on all benefits decisions under 38 U.S.C. § 7104 (a). While Wages dealt with extraschedular TDIU, the Court extended a similar holding to extraschedular ratings under § 3.321(b). See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). As such, the Board will make its own determination regarding whether the Veteran’s symptoms warrant extraschedular ratings. The Director authored an advisory opinion on this matter in July 2018. The Director noted that during the period on appeal, there was no evidence that the Veteran’s diabetes mellitus or peripheral neuropathy of either lower extremity resulted in any hospitalizations or emergency room visits. Significantly, the VA examiner in January 2017, who reviewed records from 2005 to present, found that diabetes mellitus had no impact on any occupation, and the neuropathy would impact standing and walking for prolonged periods, but would not prevent employment. The Director further noted that examination had revealed that it was the Veteran’s nonservice-connected disabilities that had the greatest impact on the Veteran’s ability to work. Accordingly, based on the reasons stated above, the Director determined that none of the available objective evidence supported the Veteran’s contention that any of his service connected disabilities or a combination of the effects of the disabilities prevented all types of gainful activity for the time period of this review. Thus, the Director concluded that entitlement to a TDIU for any time period prior to May 2, 2011, was not established. The Board has also considered the Veteran’s experience and education which fail to provide a basis for finding that the Veteran was unable to transition to a job involving physical labor with some standing and walking limitations, or sedentary activity. In this regard, the Board places great probative value on the opinion of the VA medical examiner, who is sum, did not find that Veteran’s service-connected disabilities prior to May 2, 2011, rendered the Veteran unemployable. Finally, as noted above, the July 2018 Director’s advisory opinion also concluded that there was no evidence that the Veteran was unemployable due solely to his service connected disabilities prior to May 2, 2011. Since there was no overall finding of unemployability, entitlement to an extraschedular evaluation pursuant to 4.16(b) was not warranted. The Board has determined that the analysis of the Director’s decision is correct in the specific circumstances in this case and agrees with its findings pertaining to the issue of entitlement to a TDIU on an extraschedular basis from June 9, 2007 to May 2, 2011. The Board has also carefully considered the Veteran’s statements regarding the effects of his disabilities on his employability from June 9, 2007 to May 2, 2011. Although the Veteran experienced symptoms in his lower extremities on prolonged standing or walking that he attributed to his neuropathies, and these were found to cause some impact on his daily functioning, that impact was considered in the scheduler ratings currently assigned. Simply stated, if he did not have issues with his service connected problems, there would be no basis for compensable evaluations for these disabilities. The fact that he did have problems does not provide a basis to grant TDIU prior to May 2, 2011, particularly considering what can only be cited as extensive medical evidence against this claim, as cited above. (Continued on the next page)   Moreover, statements from the Veteran and clinical findings from June 9, 2007 to May 2, 2011, mostly attributed the Veteran’s occupational limitations to his nonservice-connected back and carpal tunnel disorders. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana