Citation Nr: 18156043 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-11 961 DATE: December 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to controlling regulations applicable to the payment of VA monetary benefits. FINDINGS OF FACT 1. Since receipt of the claim for a TDIU and prior to March 5, 2015, service connection has been in effect for coronary artery disease status post bypass surgery (rated 60 percent disabling), right knee osteoarthritis status post total knee arthroplasty (rated 30 percent disabling), posttraumatic stress disorder (PTSD) (rated 30 percent disabling), type II diabetes mellitus (rated 20 percent disabling), diabetic peripheral neuropathy of both upper and both lower extremities (each rated 10 percent disabling), tinnitus (rated 10 percent disabling), and hearing loss and a post-operative scar status post coronary artery bypass graft (each rated noncompensably disabling); the combined evaluation for compensation was 80 percent effective May 26, 2011 and 90 percent effective May 22, 2012. 2. The Veteran is unable to secure or follow a substantially gainful occupation consistent with his education including some college and usual occupation as a network analyst or provisioner due to service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1964 to September 1968, from April 1969 to February 1976, and from February 1985 to July 1989. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2013 rating decision. Entitlement to a TDIU due to service-connected disabilities The Veteran’s claim for a TDIU was received on June 27, 2011. In his application, he asserted that his coronary artery disability precluded his ability to obtain or maintain employment. He indicated he became too disabled to work and last worked in November 2007 as a full-time provisioner for a telecommunications company, but reported he did not leave that position due to disability. Prior to that job, he worked mostly at other telecommunications companies, also as a provisioner or a network analyst. He reported completing high school and denied receiving other education or training either before or after becoming too disabled to work. In subsequent correspondence in support of his claim, he asserted that many of his service-connected disabilities collectively precluded his ability to obtain or maintain employment. Total disability ratings 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 as 60 percent or more, and if there are two or more 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); see also 38 C.F.R. §§ 3.340, 3.341. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran’s nonservice-connected disabilities on his ability to function. Since receipt of the claim on June 27, 2011, service connection has been in effect for coronary artery disease status post bypass surgery (rated 60 percent disabling), right knee osteoarthritis status post total knee arthroplasty (rated 30 percent disabling), posttraumatic stress disorder (PTSD) (rated 30 percent disabling), type II diabetes mellitus (rated 20 percent disabling), diabetic peripheral neuropathy of both upper and both lower extremities (each rated 10 percent disabling), tinnitus (rated 10 percent disabling), and hearing loss and a post-operative scar status post coronary artery bypass graft (each rated noncompensably disabling). The combined evaluation for compensation was 80 percent effective May 26, 2011 and 90 percent effective May 22, 2012. The Veteran meets the threshold schedular criteria for entitlement to a TDIU pursuant to 38 C.F.R. 4.16(a). Parenthetically, the Board notes that a March 2015 rating decision increased the assigned ratings for right and left lower extremity peripheral neuropathy to 40 percent each, effective March 5, 2015, resulting in a combined evaluation for compensation of 100 percent from the same date. Therefore, the decision herein considers whether a TDIU is warranted from the date the claim was received on June 27, 2011 and prior to March 5, 2015. The record does not show, nor does the Veteran contend, that he is unemployable due solely to any one service-connected disability. In April and May 2012, the Veteran was afforded VA audiological and general medical examinations to evaluate his service-connected disabilities. The audiologist found the Veteran’s hearing loss would cause trouble understanding in difficult listening situations; however, with proper amplification, his hearing impairment alone would not render him unemployable. Similarly, the audiologist determined the Veteran’s tinnitus caused no functional impact on his ability to work. The May 2012 examiner detailed that the Veteran’s coronary artery disease did not cause functional limitations and his diabetes mellitus was well-controlled on oral medication. In comparison, the examiner opined that the Veteran would not be able to perform a job that required standing all day due to peripheral neuropathy symptoms of burning, tingling or numbness, and pain in his feet, but believed he could most likely perform his usual work as a network analyst. Finally, while the examiner noted bilateral upper extremity neuropathy on examination, the report does not describe the functional impact on the Veteran’s ability to work. During a May 2013 VA PTSD examination, the Veteran reported completing a couple years of college and last working for Sprint from 2000 to 2008. He explained that within that time frame he was laid off several times and the last time he was laid off he decided to retire. The examiner opined the Veteran’s PTSD resulted in occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he generally functioned satisfactorily, with normal routine behavior, self-care, and conversation. In July 2013 correspondence, the Veteran’s private physician, T. Stastny, M.D., summarized the Veteran’s current health status upon his request. Dr. Stastny reported the Veteran’s bilateral lower extremity neuropathy caused some balance difficulty, his [right] knee flare-ups limited “standing and walking such as a security guard might be required to do,” PTSD caused sleep impairment, and peripheral neuropathy limited his grip strength in the left hand and arm. Dr. Stastny opined that the Veteran was likely unable to hold a full-time job given the multitude of medical limitations and risks of exacerbating a nonservice-connected back disability and service-connected “nerves, diabetes, circulation [coronary artery disease] and balance problems.” In March 2015, the Veteran was afforded VA examinations to evaluate his service-connected disabilities. Generally, the severity and functional impact of his disabilities had remained stable. However, the examiner explained that the peripheral neuropathy in all four of the Veteran’s extremities, worse in the feet, could be a safety issue in an occupational setting, interfering with stability with ambulation and manual dexterity. Right knee instability also was a safety concern. The Board has considered the entire record, including the Veteran’s educational background and his occupational history as a provisioner or network analyst, and finds that the evidence is at least evenly balanced as to whether the limitations due to his service-connected disabilities preclude him from securing or following a substantially gainful occupation. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). On the one hand, the evidence indicates that the Veteran voluntarily retired in 2007 after being laid off. On the other hand, the evidence indicates the Veteran has some occupational impairment due to PTSD and more serious impairments affecting his safety and function in a work setting due to peripheral neuropathy of his upper extremities, lower extremities, and right knee. (Continued on the next page)   In summary, considering the Veteran’s educational attainment including some college and his occupational history working as a network analyst, the Board resolves all reasonable doubt in favor of the Veteran and finds that his service-connected disabilities result in his inability to obtain or maintain a substantially gainful occupation. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel