Citation Nr: 18153180 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-00 318 DATE: November 27, 2018 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the regulations governing payment of monetary awards. FINDING OF FACT The Veteran’s service-connected disabilities (posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), rated 50 percent; left and right lower extremity peripheral neuropathy, 40 percent, each; bilateral nephrolithiasis, 30 percent; ischemic heart disease, 30 percent; right upper extremity peripheral neuropathy, 30 percent; left upper extremity peripheral neuropathy, 20 percent; type 2 diabetes mellitus, 20 percent; tinnitus, 10 percent; and, bilateral hearing loss, 0 percent) are rated 100 percent, combined, and are reasonably shown to be of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The schedular criteria for a TDIU rating are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1967 to March 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision. Legal Criteria, Factual Background, and Analysis A TDIU rating may be assigned, where the schedular rating is less than total, when the Veteran is unable to maintain a substantially gainful occupation due to service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and work experience, but not age or impairment due to nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran contends that he is unable to work due to his service-connected disabilities. See June 2012 VA Form 21-8940. He is a high school graduate, and has worked solely as a self-employed, owner and operator of dump truck from 1973 to 2012. Id. The Veteran’s service-connected disabilities (PTSD with MDD, rated 50 percent; left lower extremity peripheral neuropathy, 40 percent; right lower extremity peripheral neuropathy, 40 percent, bilateral nephrolithiasis, 30 percent; ischemic heart disease, 30 percent; right upper extremity peripheral neuropathy, 30 percent; left upper extremity peripheral neuropathy, 20 percent; type 2 diabetes mellitus, 20 percent; tinnitus, 10 percent; and, bilateral hearing loss, 0 percent) are rated 100 percent, combined. The 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating are met. What remains to be determined is whether the Veteran’s service-connected disabilities are of such nature and severity as to preclude his participation in substantially gainful employment consistent with his education and work experience. The 50 percent rating assigned for PTSD with MDD reflects occupational and social impairment with reduced reliability and productivity; symptoms include depressed mood, anxiety, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful situations, and unprovoked irritability with occasional violence. See July 2013 VA (fee basis) examination report. The 40 percent ratings assigned for peripheral neuropathy of each lower extremity reflect incomplete, moderately severe paralysis in the sciatic nerves of both legs, and a physician has reported that the disabilities render the Veteran “unable to drive more than a couple of hours without stopping to take off his shoes and elevate his feet until they stop burning/tingling.” See February 2018 VA examination report. Regarding the heart, kidney, and diabetes (excluding peripheral neuropathy) disabilities, examiners have opined that they do not impact his ability to work; however, a July 2013 interview-based METs test found the Veteran unable to perform heavy physical work. See July 2013 VA examination report. His bilateral upper extremity peripheral neuropathy was noted to pose limitations “in some safety sensitive positions such as climbing.” See July 2013 VA peripheral neuropathy examination report. His hearing loss (without hearing aids) “would create a disability preventing gainful employment in most job positions,” and with hearing aids still difficulty understanding speech unless he is “one-on-one in a quiet situation while being able to see the person’s face while they speak to him.” Finally, his tinnitus is “bothersome.” See July 2013 VA hearing loss and tinnitus examination report. VA treatment records in June 2012 note that the Veteran sold his work truck “because his neuropathy has gotten to the point that he couldn’t keep up with the expected pace as a contractor.” Although he reported staying active tending to his garden and horses (June and August 2012), and by fishing (February 2013), other treatment records (in October 2014) note drowsiness when driving (related to neuropathy medication). In an October 2013 private medical statement in support of the claim the physician noted that the Veteran has PTSD, neuropathy, heart disease, and multisite osteoarthritis (the last of which is not service-connected), and opined that the Veteran is “100% totally and permanently disabled.” He explained “[The Veteran] has need for rest 3-4 times daily with multiple position changes for pain relief, difficulty with concentration, following direction, and working with others. Mood disorder severe with depression, insomnia, and difficulty with concentration. Medication helping a little.” In a July 2017 statement, the Veteran reported that his neuropathy “pain + burning in my feet + hands” became “so intense that I couldn’t stand to operate my truck all day.” He explained that he lost customers and was unable to generate enough income to continue his business. Considering the foregoing, the Board finds that the evidence of record is at least in equipoise regarding whether the Veteran’s service-connected disabilities preclude him from maintaining regular substantially gainful occupation consistent with his work experience and education. As noted above, he has a limited (to high school) education, and is not shown to have had any training for employment of a less strenuous nature. His nearly four decades occupational experience has been limited to the heavy-trucking industry. The functional impairment from his service-connected disabilities, combined, is such that he is restricted from participation in any regular substantially gainful employment consistent with his education and occupational experience. While several examiners have opined that his heart, kidney, and diabetes (excluding related peripheral neuropathies), of themselves, each have no impact on his ability to work, and that other disabilities considered do not fully preclude maintenance of gainful employment, the opinions do not address the cumulative effect of all of the Veteran’s service-connected disabilities (on his ability to work). Resolving remaining reasonable doubt regarding degree of disability in the Veteran’s favor as required (see 38 C.F.R. § 4.3) the Board finds that the criteria for a TDIU rating are met, and that a TDIU rating is warranted. [The effective date of the award is a downstream issue for the AOJ to address in the first instance.] GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dupont, Jason