Citation Nr: 18155600 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-31 411 DATE: December 4, 2018 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran’s service-connected disabilities have precluded him from maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to March 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a TDIU. TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Generally, to be eligible for a TDIU claim, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to show 100 percent unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Nevertheless, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the rating enumerated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. §4.16(b). In the present case, service connection is in effect for diabetes mellitus Type II at 20 percent; diabetic neuropathy left upper extremity at 20 percent; diabetic neuropathy right upper extremity at 20 percent, tinnitus at 10 percent; diabetic neuropathy left lower extremity at 10 percent; diabetic neuropathy right lower extremity at 10 percent and PTSD with a noncompensable rating. With consideration of the bilateral factor for the upper extremity neuropathy, the Veteran’s combined evaluation for the period on appeal is 70 percent. Additionally, the Board notes that the Veteran’s service-connected diabetes and the neuropathy of the bilateral upper and lower extremities stem from a common etiology, meeting the requirement for at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16(a). Thus, the Board finds that the schedular requirements for TDIU are met. Next, the Board will look to the relevant evidence regarding whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran filed an application for TDIU in August 2014. On the application he asserted that he last worked full time in July 2011, as a salesman of parts for a machinery company. He stopped working due to complications from his service-connected diabetes. The Veteran indicated that he became too disabled to work on September 24, 2013. There was no formal education or training identified post-high school. The Veteran filed his TDIU claim in August 2014, the same month that he received an RO rating decision granting service-connection for upper and lower extremity peripheral neuropathy related to his diabetes. The decision was predicated on VA examinations in June 2014 for diabetes and peripheral neuropathy. During the June 2014 VA examination for diabetes, the Veteran reported he was prescribed medication for his diabetes and there had been no hospitalizations related to ketoacidosis or hypoglycemic reactions. The VA examiner recorded no weight or strength loss. Moreover, the examiner noted diabetic neuropathy was a complication associated with the diabetes diagnosis. There was no functional impact associated with his ability to work. Regarding the neuropathy report at the June 2014 VA examination, the examiner diagnosed upper and lower extremity peripheral neuropathy. The examiner recorded mild paresthesias and/or dysesthesias of both upper and lower extremities. He had moderate numbness of all extremities. Muscle strength was normal across all functional areas tested. There was no muscle atrophy. Moreover, his upper extremities were characterized by moderate incomplete radial nerve paralysis bilaterally. The examiner opined that the neuropathy had no impact on employability. VA treatment notes in April 2015, annotated the Veteran reported a gradual increase in numbness in his hands and feet along with intermittent sharp pain. In addition, to occasional sensations in one or both of his hands. In June 2015 VA received a letter from the Veteran’s private physician stating that she had treated the Veteran for the prior 8 years and his diabetes along with his toxic peripheral neuropathy made him unable to maintain substantial gainful activity. She cited limitations in endurance; gait and balance; and numbness bilaterally with his hands and feet that would prevent him from ambulating or using his hands for fine motor work. At the request of the RO, his private physician submitted the underlying treatment records supporting the unemployability decision in May 2016 for treatment from April 2007 to May 2015. In April 2016, the Veteran was afforded a VA examination to evaluate his diabetes and neuropathy. He reported being prescribed oral medications to control his diabetes. There had been no episodes of hospitalization for ketoacidoses or hypoglycemic reactions. The examiner recorded functional limitations of lifting of 25 to 50 pounds once a day and unlimited lifting below 25 pounds. Activities such as standing were limited to 15 minutes at 6 times a day and sitting was limited to 15 minutes also for 6 times a day. Furthermore, walking was limited to no more than ¼ mile twice a day. The examiner opined that although the Veteran was unable to perform his salesmen occupation; he could work a normal 8-hour workday. The functional limitations above, did not preclude him from substantially gainful employment. Regarding his peripheral neuropathy, the Veteran reported since his last examination in June 2014, he felt his symptoms were progressively worse. In his lower extremities he felt slight discomfort and pain with less sensitivity. Moreover, his hands tingled with less feeling and his writing was affected by the symptoms. He also felt that he could no longer grasp objects as well; in addition to his fine motor skills deteriorating. The examiner recorded mild incomplete paralysis bilaterally in his radial nerve, median nerve, and ulnar nerves. In his lower extremities the examiner recorded mild incomplete paralysis of the sciatic nerve and femoral nerve. There was no atrophy recorded and strength testing was normal. The examiner referenced the limitations in the above diabetes examination regarding the impact of his neuropathy on substantial gainful occupation. Based on the evidence above, the Board finds the evidence is in equipoise as to whether the Veteran’s service-connected disabilities preclude him from substantially gainful employment. Specifically, the Board notes the increase in symptomatology from his initial VA examination in June 2014 to April 2016. The Veteran reported at the April 2016 examination that his symptoms were progressively worse in his lower extremities. He asserted feeling discomfort and pain in addition to less sensitivity. Furthermore, his hands tingled with less feeling and his writing ability had been impacted. However, the VA examiner recorded there was still no muscle atrophy, normal strength and generally mild incomplete paralysis of his nerves. Moreover, the examiner stated that the Veteran could work with some functional limitations. The functional limitations will be addressed further below. In contrast, the Veteran’s private physician’s June 2015 letter stated the Veteran was unable to sustain substantially gainful employment. She cited limitations in endurance; gait and balance; along with numbness bilaterally of the feet and hands that would prevent the Veteran from sustaining employment. His private physician’s letter was supported by medical treatment records from April 2007 to May 2015. The Board notes the Form 9 submitted in June 2016 to perfect the appeal, annotated a probative fact regarding the April 2016 VA examination. The examiner limited lifting of 25 to 50 pounds once a day and unlimited lifting below 25 pounds. Activities such as standing were limited to 15 minutes a day 6 times a day and sitting was limited to 15 minutes a day also for 6 times a day. Calculating the total time allotted for the day equals solely 3-hours of a workday. If the Veteran can only function for the allotted time recommended/prescribed by the VA examiner while engaged in substantially gainful employment; the Veteran’s functional limitations preclude him from performing a full 8-hour workday of employment. As such, the Board finds the competent evidence is in balance regarding whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the benefit of the doubt doctrine is applicable; entitlement to TDIU is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel