Citation Nr: 19136405 Decision Date: 05/10/19 Archive Date: 05/10/19 DOCKET NO. 17-49 625 DATE: May 10, 2019 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) as a result of service-connected disabilities is granted. FINDING OF FACT The evidence of record supports a finding that the Veteran’s service-connected disabilities are so severe as to preclude the Veteran from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to November 1970. Entitlement to a TDIU The Veteran is seeking entitlement to a TDIU on the basis that his service-connected diabetes and bilateral upper and lower peripheral neuropathy all render him unable to obtain and maintain substantially gainful employment. See February 2017 VA Form 21-8940. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are 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. Disabilities affecting of one or both upper or lower extremities, including the bilateral factor; disabilities resulting from common etiology or a single accident; or disabilities affecting a single body system will all be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). The bilateral factor provides for an additional ten percent of the combined value, derived from the combined ratings table, of disabilities affecting both arms, both legs, or paired skeletal muscles prior to converting to degree of disability. 38 C.F.R. § 4.26. Here, the Veteran is currently in receipt of service connection for posttraumatic stress disorder (PTSD) rated at 30 percent disabling; diabetes mellitus, rated at 20 percent disabling; peripheral neuropathy of the left lower extremity affecting the femoral nerve and associated with his diabetes, rated at 20 percent disabling from May 21, 2016; peripheral neuropathy of the right lower extremity affecting the femoral nerve and associated with his diabetes, rated at 10 percent disabling from October 27, 2011, and currently rated at 20 percent disabling from May 31, 2016; bilateral peripheral neuropathy of the upper extremities affecting the median and ulnar nerves and associated with his diabetes, rated at 10 percent disabling from May 31, 2016, and currently rated at 20 percent disabling, effective from December 20, 2016; peripheral neuropathy of the left lower extremity affecting the sciatic nerve and associated with his diabetes mellitus, rated at 10 percent from December 27, 2011 and currently rated at 20 percent disabling, effective from May 31, 2016; tinnitus, rated at 10 percent disabling; and, bilateral hearing loss, rated at 0 percent. His combined rating is 40 percent, effective from October 27, 2011; 60 percent, effective from December 21, 2012; 80 percent, effective from May 31, 2016, and 90 percent from December 20, 2016. Here, the Board finds that effective from May 31, 2016, when the four individual ratings for peripheral neuropathy of the bilateral upper and lower extremities ratings are combined pursuant to 38 C.F.R. § 4.25 and application of the bilateral factor is considered pursuant to 38 C.F.R. § 4.26(c), and then combined again with the 20 percent diabetes rating, the schedular requirements for entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(a) are met due to the common etiology of the disabilities. The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether a veteran’s service-connected disability or disabilities preclude him or her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran’s service-connected disability or disabilities do not prevent him or her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). On his February 2017 VA Form 21-8940, the Veteran indicated that he was prevented from obtaining and maintaining substantially gainful employment due to his service-connected diabetes and peripheral neuropathy disabilities. Also on this TDIU application, the Veteran reported that he last worked in 2009 as a diesel mechanic at the Wonder Bread Factory. The Veteran also reported that he has not attempted to obtain work since 2009 due to the fact that he has been a diesel mechanic his whole life and that was all he knew how to do. He also stated that he is no longer able to stand due to the severity of his disabilities. The VA Form 21-8940 reflects the Veteran’s highest level of education was 2 years of high school. After a review of all the evidence, lay and medical, the Board finds that entitlement to a TDIU is warranted. In the present case, the Veteran was scheduled for VA examinations in August 2016 in connection with his claim for increased ratings for his diabetes and associated neuropathy. During the August 2016 peripheral neuropathy examination, the Veteran reported he retired 7 years ago, so in 2009, but worked part-time in a self-employed capacity restoring vintage vehicles. The Veteran reported intermittent standing limitations from 1 to 3 hours and then experiences increased tingling in feet and has to sit down. The Veteran reported difficulty with placing small screws, fuel jets, bolts or other mechanical activity that involves fine touch of small objects. The Veteran stated he frequently drops small items due to numbness in his fingertips. However, it was also noted the Veteran was independent with all activities of daily living, including driving. An August 2016 VA audiological examination also noted the Veteran’s report of difficulty with speech and noise. No other comment was provided. Thereafter, a November 2016 neurological examination again reviewed the severity of the service connection peripheral neuropathy disabilities. It was noted by the examiner that the diagnosed peripheral neuropathy impacts the Veteran’s ability to work due to difficulty with prolonged standing and walking. No further comment was provided. A December 2016 VA audiological examination noted the Veteran’s hearing loss and tinnitus causes problems communicating with people and interferes with his sleeping. The Veteran was again examined by VA in December 2016 to determine the severity of his peripheral neuropathy. The VA examiner noted that the functional impact of this disability is that the Veteran lacks sensation in his extremities which makes it hard to know where his feet are in time and space, and makes it difficult to feel injury. In March 2017, the Veteran was scheduled for a VA examination to determine the impact of the Veteran’s diabetes and peripheral neuropathy on his ability to obtain and maintain substantially gainful employment. Following a review of the Veteran’s record, the examiner concluded that the Veteran’s diabetes imparts minimal functional limitations. Specifically, the Veteran would need to have access to regular snacks and meals but could perform any tasks. As for the peripheral neuropathy, the examiner concluded this condition also imparts mild functional limitations. The Veteran should avoid standing for prolonged periods or walking great distances, but could perform any sedentary or light duty task. In addition to the examination reports discussed above, the Board has reviewed the Veteran’s VA treatment records. These records are cumulative and are therefore not pertinent to his application for a TDIU. After careful review, the Board finds that evidence shows the Veteran is unable to obtain and maintain substantially gainful employment as a result of his service-connected diabetes and peripheral neuropathy disabilities consistent with his education and occupational experience. As discussed above, the evidence shows that the Veteran has not worked full time since 2009. Further, the record shows that his prior and only work experience as a diesel mechanic requires the ability to stand and grasp small objects. Thus, the the cumulative findings of the VA examinations dating from August 2016 through March 2017 and the Veteran’s statements attesting to the severity of his disabilities would preclude him from obtaining and maintain substantially gainful employment in his field. In giving the benefit of the doubt to the Veteran, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation as a result of the service-connected disabilities. The medical evidence reflects the Veteran’s disabilities limit his physical capabilities, such as standing and grasping, which is required for his job as a mechanic. As all doubt is resolved in favor of the Veteran, the Board finds that the evidence supports a finding of a TDIU. See 38 U.S.C. § 5107. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.