Citation Nr: 18158769 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-32 282 DATE: December 18, 2018 ORDER Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to an evaluation in excess to 70 percent for posttraumatic stress disorder (PTSD). Entitlement to an evaluation in excess to 20 percent for diabetes mellitus type II. Entitlement to a compensable evaluation for left lower extremity peripheral neuropathy from July 28, 2010 to April 24, 2013, and in excess of 10 percent from April 24, 2013. Entitlement to a compensable evaluation for right lower extremity peripheral neuropathy from July 28, 2010 to April 24, 2013, and in excess of 10 percent from April 24, 2013. Entitlement to a compensable evaluation for bilateral upper extremity peripheral neuropathy. FINDING OF FACT The Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to May 1969, with service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2012 and November 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).   Entitlement to a TDIU requires evidence of service-connected disability so severe that it is impossible for the veteran in particular, or an average person in general, to follow a substantially gainful occupation. 38 U.S.C. § 1155, 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). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations indicate that when a veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Marginal employment is not considered substantially gainful employment. Id. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran’s service-connected disabilities are PTSD, rated as 70 percent disabling, diabetes, rated as 20 percent disabling, tinnitus, rated as 10 percent disabling, left lower extremity peripheral neuropathy, rated as 10 percent disabling, right lower extremity peripheral neuropathy, rated as 10 percent disabling, bilateral upper extremity peripheral neuropathy, rated as noncompensable, and hearing loss, rated as noncompensable; the combined service-connected disability rating is 80 percent. Thus, the Veteran has one disability ratable at 40 percent or more and a combined disability rating to 70 percent, and the percentage rating standards are met. The question is now whether the Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. In a May 2017 claim, the Veteran indicated that he had performed the duties of a cable company supplier since 1976 and had last worked full time in January 2013. The Veteran indicated that he was currently enrolled in college. At a July 2012 VA PTSD examination, it was noted that the Veteran had been psychiatrically hospitalized in May 2010 following a suicide attempt. Symptoms included depressed mood, anxiety, suspiciousness, near continuous panic or depression affecting the ability to function independently appropriately and effectively, chronic sleep impairment, mild memory loss such as forgetting names directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, suicidal ideation, and obsessional rituals which interfere with routine activities. In an April 2018 letter, a certified rehabilitation registered nurse and private vocational consultant, DM, provided an opinion that the Veteran could no longer work due to his service-connected disabilities. The examiner reviewed the medical records associated with the claims file. DM indicated that the Veteran had a good work history prior to the increasing problems with his service connected conditions, noting that the Veteran had worked for 28 years in sales and management until his service connected disablements made it not possible to continue. It was further noted that the Veteran had operated several businesses of his own but had been unable to continue to maintain employment secondary to his service connected PTSD and other medical conditions. DM noted that although the Veteran had been able to go to work, by the afternoon he would become so emotionally anxious and he would become physically sick, preventing him from completing work that day. Further, DM indicated that the Veteran's social impairment was having a negative impact on his employment. In this regard, it was noted that the Veteran had made a living most of his life in sales but that he would now become too emotionally anxious. Although the Veteran had been involved in counseling and had been prescribed medications, the Veteran's problems overwhelmed his coping abilities. DM further observed that after losing his long-time employment, the Veteran attempted to return to work at several different companies only to fail within a short period of time due to service connected health problems. DM also noted that the Veteran's anxiety and depression had been further worsened by the Veteran's diabetic medications which had caused erectile dysfunction. DM stated that the Veteran's service-connected disabilities made him unable to obtain or maintain substantially gainful employment in both physical and sedentary occupations. DM concluded by stating that his opinion was based upon more than 45 years of nursing experience, specialized education, and special certifications. The Board finds that the Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. DM's opinion is based on a knowledge of the Veteran’s current and past medical history, and is supported by the fact that the Veteran has a serious PTSD disorder. Accordingly, entitlement to a TDIU is warranted. 38 U.S.C. § 5107. REASONS FOR REMAND As for the issues of entitlement to increased ratings for PTSD, diabetes, left lower extremity peripheral neuropathy, right lower extremity peripheral neuropathy, and upper extremity peripheral neuropathy, remand is required for current VA examinations. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). VA last examined the Veteran with respect to these disabilities in 2012 (PTSD and diabetes) and 2014 (upper and lower extremity peripheral neuropathy). Additionally, the Veteran has reported that these disabilities had worsened since that time period. Accordingly, the Veteran should be afforded current VA examinations. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after February 12, 2016. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and the representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and the representative.   3. After any additional records are associated with the claims file, provide the Veteran with the appropriate VA examinations to determine the current severity of the service-connected PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected diabetes, left lower extremity peripheral neuropathy, right lower extremity peripheral neuropathy, and upper extremity peripheral neuropathy disabilities. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Nelson