Citation Nr: 18149933 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-12 374 DATE: November 14, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to July 6, 2017, is granted. FINDINGS OF FACT Prior to July 6, 2017, the Veteran has been unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW Prior to July 6, 2017, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2014); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to October 1968. In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing. The transcript from the hearing has not yet been associated with the file, as this appeal is being adjudicated under the One Touch program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. The Veteran has been granted SMC at the housebound rate as of July 6, 2017. Therefore, the issue of entitlement to TDIU from July 6, 2017 is moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). However, the claim for entitlement to TDIU for period prior to July 6, 2017 remains on appeal. Entitlement to TDIU due to service-connected disabilities VA will grant a TDIU when the evidence shows that a Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). A total rating for compensation purposes 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. 38 C.F.R. § 4.16 (a). The relevant issue is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether the Veteran can perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but no consideration may be given to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. Responsibility for the ultimate TDIU determination is with VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him or her in a different position than other Veterans with the same disability rating. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high 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 or she can find employment. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service-connected for prostate cancer, rated 100 percent disabling from July 6, 2017; diabetic nephropathy with microalbuminuria associated with diabetes mellitus type II with hypertension, rated at 30 percent from January 31, 2011; PTSD in partial remission with major depression in partial remission, rated at 30 percent from January 31, 2011; diabetes mellitus type II with hypertension, rated at 20 percent from June 10, 2004; peripheral neuropathy right arm, rated at 20 percent from January 31, 2011 to August 6, 2015; peripheral neuropathy left arm, rated at 20 percent from January 31, 2011 to August 6, 2015; right upper extremity diabetic peripheral neuropathy, rated at 20 percent from August 6, 2015; left upper extremity diabetic peripheral neuropathy, rated at 20 percent from August 6, 2015; left lower extremity diabetic peripheral neuropathy, rated at 20 percent from August 6, 2015; right lower extremity diabetic peripheral neuropathy, rated at 20 percent from August 6, 2015; peripheral neuropathy right leg, rated at zero percent from January 31, 2011, and at 10 percent from July 31, 2012 to August 6, 2015; peripheral neuropathy left leg, rated at zero percent from January 31, 2011, and at 10 percent from July 31, 2012 to August 6, 2015; and retinopathy, rated at 10 percent from May 23, 2005, and zero percent from May 1, 2010. Initially, the Board notes that the Veteran has met the schedular criteria for a TDIU for the entirety of the appeal period. Beginning on January 31, 2011, the Veteran’s overall combined rating was 80 percent. For purposes of TDIU, the Veteran’s service-connected peripheral neuropathy of the left arm and right arm, being disabilities of both upper extremities including the bilateral factor, are considered one disability, which combined for a rating of 40 percent, with the combined ratings of all service-connected disabilities to be 70 percent or more. Thus, the Veteran meets the criteria for TDIU consideration. 38 C.F.R. § 4.16(a). Therefore, the remaining consideration is whether the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. In a July 2012 claim, the Veteran attributed his unemployability to his service-connected disabilities, specifically conditions related to the progression of his neuropathy, diabetes, and PTSD. The claim reflects that he worked as a union carpenter for some time after military service, and was a self-employed contractor installing hardwood floors from 1980 until he sold his business in 2010. During a February 2008 VA psychiatry consult, the Veteran indicated that he did not complete high school, but did obtain a GED in 1965. The Veteran reported that after discharge from active service, he returned to school to study psychology. In a February 2011 VA mental health note, the Veteran reported that he started to deteriorate and did not work as much at the age of 63. In a March 2011 VA treatment note, the Veteran reported that he had lost a lot of energy over the past two years and had not been able to do actual labor in about one year. During a September 2013 VA examination for the Veteran’s PTSD, the examiner noted that the Veteran had not worked for an income in approximately three years and that he had sold his business in 2010 due to problems with his feet (secondary to diabetes). It was also noted that the Veteran sold his business due to medical problems, specifically with his feet being the primary reason that he does not work. The Veteran also reported that he had to stop working due to his inability to do the business stuff and the physical end. During a September 2013 VA examination for the Veteran’s diabetes mellitus, the examiner indicated that the Veteran suffered complications from diabetes including chronic calcified pancreatitis (to include insulin deficiency with secondary diabetes), diabetic peripheral neuropathy, and diabetic retinopathy. The examiner found that the Veteran’s diabetes (and complications) did not impact the Veteran’s ability to work. In a September 2013 VA examination for general medicine, the examiner noted that the Veteran’s chronic pancreatic insufficiency impacted the Veteran’s ability to work. Specifically, attacks of the abdominal pain lasting a couple of days up to three weeks and that the Veteran was totally incapacitated during the attacks. The Veteran was noted to experience a couple of attacks per month, with reduced frequency recently. In a September 2013 VA examination for diabetic peripheral neuropathy, the examiner indicated that the Veteran’s diabetic peripheral neuropathy impacted his ability to work; specifically, the Veteran avoided ladders due to poor balance. Nevertheless, the examiner concluded that the Veteran’s service-connected conditions would not render him unable to secure or maintain substantially gainful employment. The examiner believed that sedentary employment, employment in a loosely supervised situation, or employment requiring little interaction with the public was feasible. During an August 2015 VA examination for PTSD, the examiner noted that the Veteran sold his business and quit working in 2010, largely because of physical problems rather than mental health problems. The examiner also indicated that when the Veteran was working, he could only work for himself in a self-paced business that allowed him to answer to no one and take time off for equipment failures when he needed to. The examiner opined that the Veteran would not do well in a traditional work setting and had difficulty in establishing and maintaining effective work and social relationships. During an October 2018 Board hearing the Veteran reported that he owned his hardwood flooring business for about 40 years or so, and that he self-selected that occupation to avoid working with other people. The Veteran also reported he sold his business in 2010. The Veteran testified that his service-connected peripheral neuropathy made the hardwood installing work hard to do, specifically because the physical labor was getting harder, and because his PTSD made it difficult to deal with clients. The Veteran also reported he did not attend social gatherings anymore. The Board recognizes the conflicting evidence of record, particularly that the Veteran was unable to continue employment due to his service connected disabilities. The September 2013 VA examiner for diabetes mellitus indicated that the Veteran’s diabetes (and complications) did not impact the Veteran’s ability to work. Similarly, the examiner found that the believed that the Veteran’s service-connected conditions did not render him unable to secure or maintain substantially gainful employment, believing that sedentary employment, employment in a loosely supervised setting, or employment requiring little interaction with the public was feasible. However, the examiner did not address the Veteran’s specific education and work history. However, after consideration of the record, and resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran’s service-connected disabilities have been sufficiently disabling as to render the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background. The evidence during the appeal period suggests that the Veteran’s service-connected disabilities rendered him unable to perform his work in his normal occupation as a hardwood floor installer. The Veteran has spent the entirety of his post-military career in physical labor type work, including working as a carpenter and a hardwood floor installer. The Veteran consistently reported that he was no longer able to do actual labor due to his service-connected disabilities. In his July 2012 claim, the Veteran reported that as a hardwood floor installer, he participated in all phases of installation, including excavation of old floors and sanding and refinishing wood floors and decks. The Veteran described being unable to perform routine work, specifically with the inability to stand or perform tasks for any time, and numbness in his fingertips. The Veteran also reported he had to stop working and sell his business because he was unable to do the business and physical labor. He also reported poor balance and avoided the use of ladders. A September 2013 VA examination report also described the Veteran’s chronic pancreatic insufficiency and its impact on the Veteran’s ability to work, specifically the duration of the attacks lasting a couple of days up to three weeks, and the Veteran’s total incapacitation during the attacks. An August 2015 VA examiner also opined that the Veteran would not do well in a traditional work setting. The Veteran testified at the October 2018 Board hearing that his service-connected peripheral neuropathy made it difficult for him to do physical labor and his PTSD made it difficult to deal with clients. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Therefore, entitlement to a TDIU is granted. 38 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel