Citation Nr: 1808885 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 16-22 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1964 to July 1968. This matter is before the Board of Veterans' Appeal (Board) on appeal from a March 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (2012). FINDING OF FACT The Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Veterans Claims Assistance Act of 2000 (VCAA) Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board does not need to address compliance with the VCAA in the context of the issue of entitlement to service connection for a TDIU. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). 2. TDIU The Veteran seeks entitlement to a TDIU. VA will grant a TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry in a TDIU claim 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). A total disability rating for compensation may be assigned when the veteran receives less than a total disability rating (less than 100 percent) and is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Regulations provide that if a veteran is service-connected for one disability, it must be rated as 60 percent disabling or more. If a veteran is service-connected for two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. In making this determination, the following will be considered one disability: 1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). However, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of whether a veteran satisfies the above percentage evaluations. 38 C.F.R. § 4.16 (b). In such a case, the Board may not assign a TDIU without ensuring that the claim is referred to VA's Director of Compensation Service (Director) for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As such, the Board will consider whether a particular job is realistically within the physical and mental capabilities of the veteran. The Veteran is service-connected for (1) major depressive disorder, rated at 50 percent, (2) diabetes nephropathy with hypertension, rated at 30 percent, (3) diabetes mellitus, rated at 20 percent, (4) left upper extremity neuropathy, rated at 20 percent, (5) right upper extremity neuropathy, rated at 20 percent, (6) left lower extremity neuropathy, rated at 10 percent, (7) right lower extremity neuropathy, rated at 10 percent. The combined evaluation for these disabilities is 90 percent. As such, the Veteran meets the preliminary schedular criteria for consideration for entitlement to a TDIU. See 38 C.F.R. § 4.16. Thus, the Veteran may be awarded a TDIU if evidence shows that his service-connected disabilities preclude substantial and gainful employment. The Board finds that the competent evidence of record does support such a conclusion. The Veteran's VA Form 21-8940 (Veteran's Application for Increased Compensation based on Unemployability) provided that the Veteran retired in 2003. The Veteran worked between the years of 1968 to 2003, as a meter reader for an energy company. The Veteran noted that he became too disabled to work in 2013. The Veteran indicated that he did not leave his last job due to his service-connected disabilities and has not tried to obtain employment since becoming too disabled to work. The Veteran's highest level of education is four years of college. The Veteran was provided VA examinations in March 2015 and November 2016 related to his service-connected major depressive disorder. The March 2015 VA examiner provided that the symptoms related to the Veteran's major depressive disorder caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The November 2016 VA examiner provided that the Veteran's symptoms related to his major depressive disorder resulted in occupational and social impairment with reduced reliability and productivity. The Veteran was provided VA examinations in October 2013, December 2014, February 2015, October 2017, and December 2017 related to his upper and lower bilateral neuropathy. The October 2013 and December 2014 VA examinations found that the Veteran's neuropathic conditions of the upper and lower extremities did not impact his ability to work. The February 2015 VA examiner found that the diabetic peripheral neuropathy impacted his ability to work due to limitations in standing and walking. The examiner also provided that fine repetitive finger and feet movement would be difficult for the Veteran. The October 2017 examiner also found that the Veteran's diabetic peripheral neuropathy impacted his ability to work. The examiner noted that the Veteran was retired, and assigned the Veteran a diagnosis of trigger finger, which caused the Veteran's fingers to cramp. The examiner provided that the Veteran cannot lift due to the pain and weakness in his fingers. Moreover, the examiner opined that the Veteran was not able to climb stairs or ladders because of tingling in his feet and bending down to lift was difficult due to bilateral foot burning and numbness. The December 2017 VA examination found that the Veteran's diabetic peripheral neuropathy impacted his ability to work due to the inability to stand, walk, climb stairs, and drive due to lower extremity neuropathy. The Veteran underwent VA examinations in February 2015 related to his diabetes mellitus and diabetes nephropathy. The examiner ruled that the Veteran's diabetes mellitus impacted his ability to work due to unrestricted manual labor not being feasible nor firm repetitive foot controls or fine fingering (repetitive) activities. However, the examiner ruled that the Veteran's diabetes nephropathy had no impact on the Veteran's ability to work. In light of the above, the Board finds that the Veteran's service-connected disabilities render him unable to secure and maintain substantial and gainful employment. In making this finding, the Board gives great probative weight to the opinions of the VA examiners regarding the Veteran's functional limitations. The VA examiners have noted the impact of the Veteran's diabetic conditions on the motor skills of the Veteran, specifically the VA examiners have identified the inability to perform repetitive foot controls and fine fingering activities. The examiners also identified complications with standing and walking for prolonged periods of time. The February 2015 examiner opined that unrestricted manual labor would be unfeasible for the Veteran. To that end, the Veteran is unable to return to the work as a meter reader, or any position that requires walking and standing for prolonged periods. Moreover, the Veteran's inability to perform repetitive finger movements would also make a sedentary position difficult despite his college education. The Veteran also has reduced employability due to his service-connected major depressive disorder. The Board does acknowledge that the Veteran has indicated that he retired in 2003, after 35 years (1968 to 2003) of employment and became too disable to work 10 years after retiring in 2003. Additionally, he provided that he did not retire due to his disabilities and has not sought employment since he became too disable to work. The Board notes that the aforementioned are factors that may be considered in whether a veteran is entitled to a TDIU, but not determinative. The impact of the Veteran's service-connected disabilities on his employability is well documented, and the Board resolves the benefit of the doubt in favor of the Veteran in this case. Therefore, the Board finds the Veteran's service-connected disabilities render the Veteran unable to secure and follow substantial and gainful employment. Based on the foregoing, the Board finds the evidence has shown that the Veteran would be unable to obtain and maintain employment based on his service-connected disabilities. The appeal is granted. ORDER Entitlement to TDIU is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs