Citation Nr: 18153176 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-35 792 DATE: November 27, 2018 ORDER Entitlement to a total disability rating based upon individual employability due to service-connected disabilities (TDIU) is granted effective June 12, 2017. FINDING OF FACT The probative evidence of record indicates the Veteran’s service-connected disability precluded him from securing and following a substantially gainful occupation since June 12, 2017, but no earlier. CONCLUSION OF LAW The criteria for a TDIU have been met since June 12, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1969 to November 1971, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows 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. In reaching such a determination, the central inquiry 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 arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran had a combined disability rating of 70 percent as of January 2003, of 90 percent as of June 12, 2017, and of 100 percent as of February 15, 2018. The Veteran made the present claim for TDIU in October 2011. He has met the schedular requirements for TDIU consideration throughout the period for review. Prior to June 12, 2017, service connection was in effect for: diabetes mellitus type II with diabetic retinopathy and erectile dysfunction, and adhesive capsulitis of the left and right shoulders. Effective June 12, 2017, service connection was additionally in effect for diabetic nephropathy and left and right upper and lower extremity peripheral neuropathy. The Veteran has a high school education and reported in his October 2011 application for TDIU that he had last worked full time as a maintenance supervisor from January 1995 to April 2011, and that he left the work due to complications from diabetes. During service the Veteran was trained as a field radio equipment repairman. Social Security Administration (SSA) records state that SSA determined the Veteran was disabled as of April 2011 due to a disorder of the back and mood disorders. As the Veteran is not service-connected for these disabilities, the finding of disability by SSA does not support his claim for a TDIU. In connection with his application for SSA disability, the Veteran stated that his work responsibilities from January 1995 through March 2011 had been those of a maintenance supervisor. When he had last worked, the Veteran would supervise associates and check their attendance, approve their time off, keep a log of projects and daily priorities, keep computer records, plan and order office supplies, and draw up plans for offices and changes to building areas. The Veteran stated that as a supervisor, before adjusting his schedule, he was supervisor over all custodial technicians on four shifts, and that he ordered all equipment and answered all security alarm calls. The Veteran was afforded VA examinations in October 2011. The examiner noted that the Veteran’s diabetes required daily insulin injections and resulted in loss of strength. His diabetic retinopathy was described as mild and nonproliferative. His erectile dysfunction did not affect his ability to work. The examiner opined that the service-connected disabilities would not render the Veteran unemployable for sedentary work. The examiner explained that the Veteran had diabetes with painful neuropathies and adhesive capsulitis of his shoulder that would affect active range of motion and that these disabilities would limit the Veteran’s physical ability to do labor activities related to his upper extremities. The examiner felt the Veteran still had good mobility of the torso and bilateral lower extremities. Moreover, the examiner noted the Veteran had many years of supervisory experience, clear judgment, and good interpersonal communication skills. The examiner opined that the Veteran had the ability to be productive in a less physical, more sedentary environment that accommodated his upper extremity disabilities. As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board takes this to mean the Veteran could work in a job where he primarily sat down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). It is recognized that the VA examiner noted the Veteran took pain medications and depression medications, which hampered his ability to concentrate and perform at work. However, these functional impacts were reported as related to the Veteran’s depression and cervical problems, which are not service-connected. Thus, these findings cannot be considered regarding the TDIU claim. Likewise, the Board notes that after a VA peripheral neuropathy examination in December 2011, which included EMG testing, a VA examiner opined that the Veteran’s frozen shoulder with adhesive capsulitis bilaterally was explainable by disuse secondary to neck issues and there was no component which can be attributable to peripheral neuropathy as the Veteran did not in fact have peripheral neuropathy. Service connection is not in effect for peripheral neuropathy until June 12, 2017 and will not be considered prior to that date. VA examinations in July 2015 found that the Veteran’s diabetes and shoulder disabilities had functional impacts on his ability to work. The VA examiners found that the Veteran’s shoulder condition caused pain, fatigue, weakness, and lack of endurance, and that he had a decreased ability to lift and dress. He reported that his wife took care of him and did the driving. An August 2017 VA examiner found that the Veteran’s diabetic peripheral neuropathy had a functional impact on his ability to work because it limited his ability to sit or stand, and also that his glucose fluctuation had a functional impact on his ability to work as it would limit exertion. Other August 2017 VA examinations noted his erectile dysfunction, diabetic retinopathy, and diabetic nephropathy did not affect employment. In May 2018, a VA examination indicated that the Veteran would have difficulty performing all types of occupational tasks due this poorly controlled blood sugars despite the use of medication and diet control. Other VA examinations in May 2018 also stated that the Veteran would have difficulty with all types of occupational tasks due to his disabilities due to his kidney condition and peripheral neuropathy conditions. Also in May 2018, the Veteran reported to the VA that he had to administer insulin nine times per day, and had visited the emergency room three times. The Veteran was then rated as 100 percent disabled in the rating decision of June 2018, and that rating decision had an effective date in February 2018. Upon review, the Board finds the evidence demonstrates that the Veteran’s service-connected disabilities prevent him from securing and following a substantially gainful occupation consistent with his education and experience since June 12, 2017, the date service connection was awarded for peripheral neuropathy. Examination around that time shows that the Veteran’s diabetes would limit exertion and his peripheral neuropathy would limit his ability to sit or stand. Such limitation is not conducive of gainful employment for this Veteran. Prior to June 12, 2017, the Veteran’s service-connected disabilities would not have prevented substantially gainful employment. Notably, the peripheral neuropathy and diabetic nephropathy cannot be considered during this period as service connection was not in effect for these conditions. During this period the Veteran’s erectile dysfunction and diabetic retinopathy are not shown to have caused any significant functional limitation which would affect employment. The evidence does indicate the Veteran would have had problems with employment which required physical work with his shoulders. However, the Veteran was not limited from working in a position that primarily encompassed sitting. The Veteran worked as a supervisor for many years and would be qualified through experience for a variety of positions where he could sit for most of the day and did not have to do physical tasks with his arms. Thus, his service-connected disabilities would not have precluded employment consistent with his education and experience during this period. It is noted that entitlement to SMC under 38 U.S.C. § 1114(s) may be warranted if the Veteran has a TDIU rating based on a single service-connected disability and additional service-connected disabilities that have a combined disability rating of 60 percent. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011), Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In this case, the Veteran is unemployable as a result of the combination of his diabetes, diabetic complications (particularly his peripheral neuropathy), and his shoulder disabilities. There is no single condition resulting in unemployability. Even if the Board was allowed to consider the diabetes and its complications as a single disability and found that they alone resulted in unemployability, which it is not finding, the remaining disabilities – namely, adhesive capsulitis of each shoulder – do not combine to another 60 percent disability rating. Thus, SMC is not warranted in this case. Accordingly, a TDIU is granted June 12, 2017 but no earlier. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ruben D. Rudolph, Jr., Associate Counsel