Citation Nr: 18106915 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 02-12 016A DATE: June 1, 2018 ORDER Entitlement to total disability due to individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him incapable of securing and following substantially gainful employment for the entire appeal period. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(b), 4.18, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to October 1974. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue on appeal was previously remanded by the Board in April 2017 for further development. Extraschedular TDIU—Laws and Analysis The Veteran maintains that he is entitled to a TDIU as a result of his service-connected diabetes disability, to include diabetic neuropathy. The Veteran submitted a claim for TDIU in January 2014. The claim was construed as part and parcel of the previously addressed increased rating claim for diabetes that was adjudicated by the Board in April 2017. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In his claim, the Veteran indicated that he became unemployed in July 1997 and it was due to his service-connected diabetes disability. He indicated that he completed 4 years of college with education and training in computer software. Service connection is in effect for diabetes mellitus with erectile dysfunction, rated as 20 percent disabling; peripheral neuropathy of the right lower extremity, rated as 10 percent disabling; and peripheral neuropathy of the left lower extremity, rated as 10 percent disabling. The combined evaluation is 40 percent. As noted above, the Board remanded the question of extraschedular unemployability as the Veteran did not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16. It is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Therefore, if a veteran fails to meet the schedular requirements set forth in 38 C.F.R. § 4.16 (a), an extraschedular rating may nevertheless be considered under 38 C.F.R. § 4.16 (b) where a veteran is unemployable due to service-connected disabilities. The Board is prohibited from assigning an extraschedular TDIU under 38 C.F.R. § 4.16 (b) in the first instance without initially referring the claim to the Director of VA’s Compensation and Pension Service. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). In a February 2018 Memorandum to the Director of Compensation Service, the Veterans Service Center Manager recommended that the issue of entitlement to TDIU on an extraschedular basis be granted from March 26, 2011, the effective date of the Veteran’s diabetes disability and associated complications. Although the Director found that an extraschedular TDIU was not warranted (see Director’s determination dated in March 2018), the Board may make an independent determination on this matter. See Anderson v. Shinseki, 22 Vet. App. 423 (2008). Therefore, the Board will now independently consider whether the Veteran is entitled to an extraschedular TDIU. Weighing in favor of the Veteran’s claim is a private medical opinion from Dr. B. B. dated in December 2014. Dr. B. B. conducted a physical examination and interviewed the Veteran. The Veteran’s journal entries were also reviewed by Dr. B. B., which showed that the Veteran typically dozed off and napped consistently either in the afternoon. The Veteran also complained of fatigue, tiredness, and drowsiness. It was then opined that it was “very likely” that the Veteran’s significant diabetes disability and his anti-diabetic medication regimen contributed to his daytime sleepiness and prevented him from substantial gainful employment. In support of this opinion, Dr. B. B. stated that the side-effects from the diabetic drugs (fatigue, sleepiness, asthenia, light-headedness, and tiredness) prevented gainful employment. VA treatment records also include a June 2013 VA endocrinology clinic note where the Veteran was noted to have a “history of fatigue.” In a January 2016 VA diabetic sensory-motor peripheral neuropathy examination report, the Veteran reported having decreased sensation to the feet. He had difficulty feeling the ground when stepping or walking. This was noted to be a constant issue. The examiner then indicated that the Veteran’s bilateral lower extremity neuropathy impacted his ability to work. Specifically, the examiner noted that the Veteran could only perform employment requiring him to stand or walk for 45 minutes at a time. Weighing against the claim are the March 2010 and February 2015 VA examinations, which found that the Veteran’s diabetes disability did not impact his ability to work. In the March 2010 VA examination, the Veteran reported that he had been unemployed for 5-10 years because he was “unable to find employment.” The Board notes that the Director’s determination in March 2018 that the Veteran was not unemployable as a result of his service-connected disabilities was based, in pertinent part, on a finding that “none of the examination conducted prior to or after Dr. [B. B]’s examination note any significant problems with fatigue or side effects of medication.” Notably, however, VA treatment records include a June 2013 VA endocrinology clinic note where the Veteran was indeed noted to have a “history of fatigue.” In weighing the lay and medical evidence of record, as well as the Veteran’s education and work history, the Board finds that it is unlikely that the Veteran would be able to find substantially gainful employment in another profession or field given his daytime sleepiness and fatigue, in addition to his limitations with standing and walking. (Continued on the next page)   Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that that it is reasonably shown that by virtue of his service-connected diabetes and related complications, that the Veteran is precluded from participating in any substantially gainful employment consistent with his education/training and experience, and that a TDIU rating is warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel