Citation Nr: 18160807 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 10-38 934 DATE: December 27, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied prior to November 27, 2009, but granted from that date. FINDING OF FACT The Veteran only met the schedular criteria for a TDIU as of November 27, 2009, and functional impairment from his service-connected disabilities would have precluded him from substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met from November 27, 2009, and no earlier. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to February 1969. He died in April 2015. The Appellant is the surviving spouse and was substituted as the claimant in January 2016. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision. A January 2016 Board remand instructed the Agency of Original Jurisdiction (AOJ) to issue a supplemental statement of the case (SSOC). This action was not completed. However, in a November 2018 statement, the Appellant and her representative requested that the Board render a decision based on the evidence of record. Entitlement to a TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due a single service-connected disability ratable at 60 percent or more, or due to two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran was service-connected for diabetes mellitus with erectile dysfunction, coronary artery disease, left lower extremity peripheral neuropathy, right lower extremity peripheral neuropathy, and hypertension. Because these disabilities have a common etiology, they are considered to be one disability for TDIU purposes. Nevertheless, the Veteran’s combined rating was only 50 percent prior to November 27, 2009, and therefore he did not meet the schedular TDIU criteria for that period. He may still be considered for an extraschedular TDIU under 38 C.F.R. § 4.16(b). From November 27, 2009, his combined rating was 60 percent, and therefore the schedular criteria were met. The central inquiry is determining whether a TDIU is warranted 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 a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence of record, including VA examination reports and TDIU application forms, show the Veteran had two years of high school education. He worked for about 20 years as a coal miner and then about 17 years as the owner of a pizza parlor. He indicated that he stopped working in 2006. With regard to functional impairment, a June 2013 VA examiner stated that the Veteran’s diabetes required him to take insulin, which would have impaired any type of shift work that interfered with blood sugar regulation. His bilateral lower extremity neuropathy created mild to moderate impairment. This included difficulty with uneven terrain and climbing, as well as the use of ladders and scaffolding. He required frequent breaks from any prolonged standing or walking, or would be restricted to a sedentary position. Finally, the examiner found that there was no impairment from his heart disability, as his heart size, ejection fraction and overall function were normal. The impairment documented in his METs testing – consistent with no more than eating, dressing, bathing and walking slowly – was due solely to a nonservice-connected respiratory disorder. This latter finding was echoed by VA examiners in May 2010 and March 2014. The Board finds that a TDIU is warranted as of November 27, 2009. As of that date, he met the schedular criteria for a TDIU, and the functional impairment from his service-connected disabilities would likely have precluded him from gainful employment. Specifically, the need for frequent breaks from prolonged walking or standing would certainly have restricted him from physically-oriented employment, including his prior work as a coal miner. The VA examiner suggested this impairment would also have limited the Veteran to sedentary positions. It seems likely that this impairment, together with his use of insulin and the necessity of regulating his blood-sugar level, would likely have precluded him from effectively operating a pizza parlor as well. Finally, his education level would not have been conducive to finding another form of gainful employment that would satisfy the constraints discussed above. Therefore, a TDIU is warranted from November 27, 2009. Prior to that date, a TDIU is not warranted. The Veteran did not meet the schedular criteria for a TDIU before November 27, 2009, and the evidence of record does not reflect some factor that takes his case “outside the norm” of any other veteran rated at the same level. Van Hoose, supra. The 50 percent rating assigned during this period already contemplated impairment in earning capacity and a considerable loss of working time. 38 C.F.R. § 4.1. Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel