Citation Nr: 1806735 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 08-25 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 28, 2012. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and N. B. ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from January 1964 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran filed a claim for entitlement to service connection for diabetes on March 23, 2006. The Veteran's claim was granted in an April 2006 rating decision effective March 23, 2006 and the Veteran submitted a timely notice of disagreement as to the effective date and initial disability rating assigned for diabetes mellitus, type II. In June 2006, the RO granted the Veteran's service-connected diabetes mellitus, type II, effective March 23, 2005 as warranted per 38 C.F.R. § 3.114. The Veteran appealed the issue of the initial disability rating to the Board following issuance of a statement of the case in July 2008. In an August 2011 decision, the Board found that the issue of entitlement to a TDIU was raised as part of the appeal for a higher initial rating for diabetes mellitus, type II. See Rice v. Shinseki, 22 Vet. App. 447 (2009). If the claimant or the record reasonably raises the question of whether the veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Rice, 22 Vet. App. at 55. Under governing law, the effective date of an award of disability compensation in conjunction with a grant of entitlement to service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b) (2). In this case, as summarized above, the Veteran's claim for entitlement to a TDIU arises from his appeal for a higher initial rating for diabetes mellitus, type II, which followed the grant of service connection for that disability, ultimately effective March 23, 2005. As such, the earliest date for which a TDIU may be awarded is March 23, 2005, the effective date of the award of service connection for diabetes. This case was previously remanded by the Board in August 2011, July 2013, October 2014 and June 2017. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In May 2011, the Veteran testified during at a Travel Board hearing before the undersigned Veterans Law Judge at the Winston-Salem, North Carolina RO. A transcript of the hearing is associated with the claims file. FINDING OF FACT The most probative evidence does not reflect that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to June 28, 2012. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to June 28, 2012, are not met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to a TDIU The Veteran seeks entitlement to a TDIU prior to June 28, 2012. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran contends that his service-connected disabilities prevented him from securing or following a substantially gainful occupation. Effective since March 23, 2005 and prior to June 28, 2012, the Veteran has been service connected for diabetes mellitus, type II, rated as 20 percent disabling prior to March 8, 2008 and 40 percent from March 8, 2008; peripheral neuropathy of the right lower extremity, rated as 10 percent disabling from March 23, 2006 through December 6, 2009, and 20 percent from December 7, 2009; and peripheral neuropathy of the left lower extremity, rated as 10 percent disabling from March 23, 2006 through December 6, 2009, and 20 percent from December 7, 2009. The Veteran's combined rating for his service-connected disabilities was 20 percent from March 23, 2005, 40 percent from March 23, 2006 through March 7, 2008; 50 percent disabling from March 8, 2008 through December 6, 2009 and; 60 percent disabling from December 7, 2009 through June 27, 2012. Accordingly, the schedular percentage requirements for a TDIU were not met prior to June 28, 2012. See 38 C.F.R. § 4.16 (a). Nevertheless, the Board will consider whether the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation such that consideration of entitlement to a TDIU on an extra-schedular basis is warranted under 38 C.F.R. § 4.16 (b) at any time during the period prior to June 28, 2012. In that regard, the Board notes that the AOJ referred the case to the Director, Compensation Services, in September 2017 for extra-schedular consideration. In October 2017, the Director, Compensation Services, provided an administrative decision denying entitlement to a TDIU on an extra-schedular basis prior to June 28, 2012. See 38 C.F.R. § 4.16(b). The October 2017 administrative decision includes a statement of reasons for the decision and a summary of the evidence considered. The Board notes that the Director's decision is one of fact, not one of opinion, discretion, or policy, and is reviewable by the Board on a de novo basis. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Although the Board is precluded from assigning an extra-schedular rating "in the first instance," the Board may assign extra-schedular ratings when reviewing either a grant or a denial of an extra-schedular rating by the Director, as is the case here. See id.; Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). Accordingly, the Board may determine whether the Veteran is entitled to a TDIU prior to June 28, 2012, on an extra-schedular basis. The Veteran indicated on a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in February 2012 that he last worked full time in April 2005 performing insurance work. He further indicated that he was unable to secure or follow a substantially gainful occupation due to his service-connected diabetes and bilateral peripheral neuropathy. The Veteran further indicated that he had a high school degree with two years college education with no further education or training. In a February 2012 buddy statement, J. J. stated that he observed the Veteran becoming uncomfortable after sitting for fifteen minutes. J. J. stated that he did not believe the Veteran could work in an occupation that required meetings, siting, and travel or in an environment that did not facilitate his ability to monitor his blood sugar levels. The Veteran was provided a VA diabetes mellitus examination in June 2006. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that he retired from his insurance company manager position in April 2005 but maintained his position as a part-time city consultant. The VA examiner noted that the Veteran is able to perform daily activities such as walking continuously for 15 minutes without difficulty. The Veteran reported that he walked three times per day for the last six months. The Veteran stated he was able to help with the housework including vacuuming and cutting the grass with a riding mower. His functional capacity was estimated at 9 METs. The Veteran was provided a VA diabetes mellitus examination in September 2008. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted that the Veteran did not require hospitalization due to his service-connected diabetes. The Veteran stated that he walks three miles a day, three days a week. A February 2010 private treatment record reflects that the Veteran was retired but worked part-time in real estate. In May 2010, VA received a letter from Dr. S. S. Dr. S. S. stated that he reviewed the Veteran's medical file. Dr. S. S. stated that the Veteran should maintain a restricted diet and he should avoid strenuous occupational and recreational activities due to his inability to control glucose levels. The Veteran was provided a VA diabetes mellitus examination in March 2011. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that he had difficulty walking or exercising due to his service-connected bilateral peripheral neuropathy. The Veteran reported he retired because he was eligible by age or duration of work. The VA examiner opined that the Veteran's service-connected disabilities would not affect his usual occupation. During the May 2011 Board hearing, the Veteran testified that he suffers from fatigue due to his service-connected disabilities. He further testified that due to his fatigue he cannot stand or walk for long periods of time. The Veteran testified that he is able to do handy work and other simple tasks. In February 2012, VA received a letter from the Veteran's private physician, Dr. S. S. Dr. S. S. stated that he treats the Veteran for his service-connected and non-service connected disabilities. Dr. S. S. stated that it is more likely than not that the Veteran could not maintain employability. In February 2012, the Veteran submitted to VA a second opinion by Dr. S. B. Dr. S. B. stated that he saw the Veteran in December 2011 relating to his service-connected and nonservice-connected disabilities. Dr. S. B. stated that in light of the Veteran's service-connected and nonservice-connected disabilities he would have significant difficulty in any type of employment. In view of the above, the Board finds that, although the probative evidence of record shows that, prior to June 28, 2012, the Veteran was likely unable to secure or follow an occupation involving heavy physical exertion due to his service-connected disabilities, it does not show that it is at least as likely as not that the Veteran was unable to secure or follow a sedentary substantially gainful occupation consistent with his education and occupational experience solely as a result of his service-connected disabilities. In arriving at this conclusion, the Board recognizes that the Veteran's service-connected disabilities have an impact on his occupational functioning. In that regard, the evidence clearly shows that the Veteran's service-connected diabetes mellitus, type II and bilateral peripheral neuropathy limit his ability to stand or walk for extended periods. In essence, it shows that the Veteran is unable to perform heavy exertional, physical work. Furthermore, the Veteran and J. J. have presented competent and credible lay witness statements that the Veteran's activities of daily living are limited by his service-connected disabilities. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay witnesses are competent to testify to features or symptoms of an injury or illness). The Board finds the statements from the Veteran and J. J. to be probative as to the Veteran's inability to perform a full range of work inasmuch as they are consistent with the other evidence of record. However, the Board finds the Veteran's statements and J. J.'s statements to be inconsistent with the other evidence of record, to include the medical treatment records and the VA examination reports, which reflect a level of disability that does not render the Veteran unable to secure or follow a substantially gainful occupation. Therefore, the Board affords little probative value to the lay witness statements from the Veteran and J. J. inasmuch as they assert that the Veteran is unemployable. The Board instead affords great probative weight to the opinions from the VA examiners and VA treatment records. These medical professionals examined the Veteran and/or reviewed his medical records, provided statements as to the relative level of severity of the Veteran's disabilities supported by appropriate rationale. The June 2006 VA diabetes mellitus examination reflects that the Veteran was able to walk continuously for 15 minutes without difficulty and that he walked three times per day for the past six months. The March 2011 VA diabetes mellitus VA examination reflects that the Veteran had difficulty walking and standing. The VA examiner opined that the Veteran's service-connected disabilities would not affect his usual occupation. The Board accepts these opinions as probative evidence of the Veteran's ability to follow a sedentary position. The Board affords probative weight to those opinions because they were based on and are consistent with examinations of the Veteran and/or the evidence of record. See Nieves-Rodriguez, 22 Vet. App. 295 (2008). The Board further notes that, prior to June 28, 2012 the Veteran was able to perform part-time real estate work and maintained his position as a part-time city consultant. Thus, the record shows that the Veteran was able to perform some sedentary work after he retired in April 2005. The Board affords little probative weight to the February 2012 letters from the Veteran's medical treatment providers. The Board notes that the statements as to the Veteran's limitations and his overall inability to work were made in consideration of both the Veteran's service-connected disabilities and his nonservice-connected disabilities. The Veteran's nonservice-connected disabilities are not for consideration in determining whether he is entitled to a TDIU prior to June 28, 2012. Therefore, the physical limitations opined in the private physician letters are not related solely to a service-connected disability and are not for consideration in determining whether a TDIU is warranted prior to June 28, 2012. Accordingly, due to his service-connected disabilities prior to June 28, 2012, the Veteran was limited to sedentary positions such as clerical work, inspection work, or assembly work. His ability to perform such work was not additionally limited by any of his service-connected disabilities. The Board concludes that, as the Veteran was able to perform essentially a reduced range of sedentary work, he was not unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities prior to June 28, 2012. See 38 C.F.R. § 4.16. In determining whether the Veteran is entitled to a TDIU prior to June 28, 2012, the Board has considered the Veteran's level of education, special training, and previous work experience. See 38 C.F.R. §§ 4.16. As noted above, the Veteran has indicated that he has two years of college with no additional training. The Board finds that the Veteran's level of education is not inconsistent with an ability to perform a reduced range of sedentary work such as clerical work, inspection work, or assembly work. In addition, the Veteran has past work experience in the insurance industry. The Board finds that although the Veteran may no longer be able to perform his past work due to the amount of travel required in insurance positions, his work history would not prevent him from transitioning to a sedentary occupation with the restrictions described above, or from securing or following such an occupation. In view of the foregoing, the most probative evidence of record does not establish that it is at least as likely as not that the Veteran was unable to secure or follow a substantially gainful occupation consistent with his educational and occupational experience, due solely to his service-connected disabilities prior to June 28, 2012. Prior to June 28, 2012, the Veteran's service-connected disabilities limited him to sedentary positions such as clerical work, inspection work, or assembly work. He has two years of college and a history of working in the insurance industry. The Veteran's education and occupational experience did not further limit his ability to secure or follow substantially gainful employment within the reduced range of a sedentary work described above. As the preponderance of the evidence is against entitlement to a TDIU prior to June 28, 2012, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, a TDIU is not warranted. ORDER Entitlement to a TDIU prior to June 28, 2012, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs