Citation Nr: 19147482 Decision Date: 06/18/19 Archive Date: 06/18/19 DOCKET NO. 15-20 338 DATE: June 18, 2019 ORDER Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) for the period on appeal is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s service connected disabilities have precluded him from securing or following a substantially gainful occupation for the period on appeal. CONCLUSION OF LAW The criteria for entitlement to TDIU for the period on appeal have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Air Force from January 1968 to November 1971. In September 2013 the Veteran was granted service connection for several disabilities, including in pertinent part: diabetes mellitus, type 2 associated with herbicide exposure; neuropathy of the right and left lower extremities secondary to the Veteran’s service connected diabetes mellitus; and tinnitus. The Veteran was granted increased ratings for peripheral neuropathy of both the right and left lower extremities in July 2014. The Veteran applied for TDIU in September 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, denying entitlement to TDIU. 1. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is granted. The Veteran maintains that his service-connected disabilities preclude him from obtaining and maintaining any form of gainful employment. In particular, he reports severe and constant pain in his feet and legs running up to his groin that makes it difficult for him to sit, stand, and walk, or concentrate on a task. The Veteran last worked in 2009, as a gate guard in Fort Myers, Florida. VA will grant a TDIU where the evidence shows that a Veteran is precluded, by reason of service connected disabilities, from obtaining and maintaining any form of gainful employment. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from a common etiology; and/or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 4.16, 4.26. VA must consider all medical and lay evidence of record. 38 U.S.C. § 5107. As a threshold determination, the Board concludes that throughout the claim period, the Veteran has met the schedular criteria for TDIU. Effective April 2014 the Veteran was service connected for peripheral neuropathy of the left (30 percent disabling) and right (30 percent disabling) legs; together, these disabilities of both lower extremities resulting from a common etiology are considered a single disability under 38 C.F.R. § 4.16 with a combined rating of 56 percent. The Veteran’s peripheral neuropathy in both legs is considered in conjunction with his diabetes mellitus (20 percent disabling); and tinnitus (10 percent disabling) for a combined rating of 70 percent. The Board notes that the Veteran has been afforded two VA examinations during the pendency of his TDIU claim, in January 2015 and February 2015. While both examiners concluded that the Veteran’s peripheral neuropathy did not impact his ability to work, neither examiner provided any supporting rationale for their conclusions. Therefore, the Veteran finds these examinations to be of limited probative value in evaluating the Veteran’s ability to secure or follow a substantially gainful occupation. The probative evidence of record demonstrates that the Veteran’s disabilities preclude him from securing or following a substantially gainful occupation. An April 2014 electromyographic study documented severe axonal and demyelinating type sensorimotor polyneuropathy. An April 2014 ambulatory care note from the East Orange VA Medical Center noted a diagnosis of peripheral neuropathy resulting in difficulty balancing. In a statement submitted with his September 2014 claim for TDIU, the Veteran detailed the pain he experiences in his feet and legs throughout his day and described how it limited his normal daily activities and ability to concentrate. An October 2014 treatment note by the Veteran’s treating neurologist documented the Veteran’s reports of pain; an inability to sit, stand, walk, or perform physical activities; and concentration issues related to his pain. A July 2016 treatment note from the Veteran’s treating podiatrist documented peripheral neuropathy with callus formation; loss of vibratory sensation; loss of protective sensation; and loss of deep tendon reflexes, among other symptoms. At his December 2018 hearing, the Veteran testified that his neuropathy symptoms impeded his ability to function at his last job as a country club gate guard, making it difficult to stand and balance. In a March 2015 written statement to the Board the Veteran described pain and discomfort so great that by early in the afternoon he is incapable of doing anything but lying down. He also described discomfort associated with trying to sit still or stand in one place. The Veteran further described his inability to perform household chores. The claims file also includes written statements from the Veteran’s spouse (September 2014); neighbor and son (March 2015); and daughter (June 2015) describing their observations of the impact of the Veteran’s painful disabilities on his ability to function. The Board finds the cumulative lay and medical evidence to be probative of the Veteran’s employability. Given the above, the Board finds that, as a result of his service connected disabilities, the Veteran experiences pain on a consistent basis, and has difficulty walking and maintaining his balance. As a result, the Veteran is unable to sit or stand comfortably for any meaningful length of time and is unable to concentrate on or perform even sedentary tasks. Accordingly, the criteria for TDIU have been met and entitlement to TDIU is granted for the period on appeal. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. C. Sametshaw 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.