Citation Nr: 20021387 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-09 676 DATE: March 25, 2020 ORDER For the appeal period prior to October 31, 2017, a total disability rating based upon individual unemployability (TDIU) is denied. For the appeal period on and after October 31, 2017, and until August 22, 2018, a TDIU is granted. FINDINGS OF FACT 1. Prior to October 31, 2017, the Veteran’s service-connected disabilities did not render him unable to secure and follow substantially gainful employment. 2. Since October 31, 2017, the Veteran’s service-connected disabilities have rendered him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. For the appeal period prior to October 31, 2017, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. Since October 31, 2017, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to November 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a TDIU. The Veteran contends that he is unable to work due to his service-connected disabilities. Specifically, he alleges that complications from his diabetes mellitus, in particular peripheral neuropathy render him unemployable. He further alleges that his heart disability precludes employment. Upon review of the evidence, the Board finds that the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation for the period on appeal prior to October 31, 2017, but they have rendered him unable to secure and follow substantially gainful employment since. Initially, the Board confines the instant appeal to the period from August 7, 2015, to August 22, 2018. The instant appeal arises from a VA Form 21-8940 received by VA in March 2016 on which the Veteran claimed entitlement to a TDIU based on diabetes mellitus, type II, and mental health conditions. The Veteran had awarded service connection for diabetes and its complications in a December 2015 rating decision issued in response to a claim received on August 7, 2015. The Board concludes that the beginning of the period on appeal is August 7, 2015. The RO found, and the Board agrees, that entitlement to a TDIU was moot from August 23, 2018, to the present by reason of the grant of a schedular 100 percent rating as of that date. The RO has also assigned special monthly compensation at the housebound rate from August 2018. Thus, the Board confines the instant appeal to the period from August 7, 2015, to August 22, 2018. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the disability ratings assigned for his or her service-connected disabilities met certain thresholds. 38 C.F.R. § 4.16(a). As of August 7, 2015, the Veteran was in receipt of service connection for right upper extremity neuropathy, evaluated as 30 percent disabling; left upper extremity neuropathy, evaluated as 10 percent disabling; bilateral lower extremity neuropathy, evaluated as 20 percent disabling each; diabetes mellitus, evaluated as 10 percent disabling; and bilateral hearing loss and hypertension, both evaluated as non-compensably disabling. Applying the combined ratings table, the Veteran had a combined rating of 70 percent at the beginning of the appeal period with all compensable ratings due to a common etiology. As of October 31, 2017, the Veteran has been awarded service connection for a coronary artery bypass graft with coronary artery disease evaluated as 60 percent disabling. His combined rating was increased to 90 percent. Consequently, the Veteran meets the schedular criteria for a TDIU for the entire appeal period. See 38 C.F.R. § 4.16(a). The Board turns to the second aspect of TDIU: whether the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (2003). Pertinent to the Veteran’s educational history, he has a high school diploma and a two-year college degree. Turning to his work history, he worked for the Puerto Rico State Police from 1969 until 1995 when he retired. See March 2016 Application for Increased Compensation Based on Unemployability. Thereafter, he worked as a messenger for Atlantis Healthcare Group for nearly 15 years until July 2014, when he resigned for unspecified medical reasons. His employer noted that his medical issues worsened incrementally over the last year of his employment until he could no longer complete the duties of the job, and no possible reasonable accommodation could be made. See September 2014 Letter From Atlantis Healthcare Human Resources. The Veteran has not worked since such time. The medical problems causing his 2014 resignation were the result of non-service-connected disabilities. The Veteran had been previously found entitled to VA pension benefits as a result of non-service-connected immune thrombocytopenia purpura, rated as 100 percent disabling. A September 2013 rating decision awarded him special monthly pension at the housebound rate due to additional disabilities. His diabetes was first diagnosed in July 2014, per August and November 2014 VA treatment records, after his general health had degraded to the point of forcing his separation from Atlantis. Thus, the reference to accommodations by his former employer must refer to non-service-connected disabilities. The Veteran’s loss of employment is not an indication that the Veteran’s service-connected disabilities render him unable to secure or maintain employment. A November 2014 VA psychologist note indicates that the Veteran was having significant impairments due to an adjustment disorder. The Veteran’s reported symptoms included memory and cognitive difficulties with forgetfulness severe enough that he would get lost in his own home. The Veteran was subsequently rated as incompetent to handle his own funds by VA in 2015 and his spouse was appointed his fiduciary. As of the beginning of the period on appeal, the Veteran’s diabetes, neuropathies, bilateral hearing loss, and hypertension do not appear to have impacted the non-economic aspects of his employability. Turning to the Veteran’s actual occupational impairment due to his service-connected disabilities, prior to October 31, 2017, the Veteran primarily contends, and the record reflects, that his main impairment was due to his diabetic neuropathy in his upper and lower extremities. In this regard, the Veteran’s neuropathy was evaluated during a November 2015 VA examination and in a May 2016 VA opinion. The November 2015 examination found that the Veteran had bilateral upper and lower extremity peripheral neuropathy, with moderate incomplete paralysis of median nerves and mild incomplete paralysis of the sciatic nerves. Specifically, the Veteran was found to have numbness and pain in both feet and hands, which caused limitation with prolonged standing and walking. He had mild intermittent pain in all extremities, and mild numbness in the upper extremity, with moderate lower extremity numbness. He further abnormal deep tendon reflexes, with decreased right biceps, bilateral triceps, and right brachioradialis, and absent reflexes in the bilateral ankles. Finally, he had decreased sensation in hands/fingers and feet/toes, but otherwise he had normal strength and all other testing. In the May 2016 opinion, the clinician found that the Veteran’s lower extremities cause difficulty standing for extended periods, but he would operate successfully in a position that did not require extensive standing or walking, and allowed for resting and position changes every 2 hours. Further, his upper extremity loss of sensation, weakness, and pain decrease his manual dexterity, and thus he is not able to perform activities that require fine tuning or handling dangerous items. During this period on appeal, and the entire period on appeal as well, the Veteran was limited by his other service-connected disabilities of hearing loss and hypertension only. Notably, his diabetes mellitus with erectile dysfunction required only a restriction of diet and did not affect his occupational function, and his hypertension did not affect his occupational function. See e.g. June 2016 VA Diabetes Examination; August 2018 VA Hypertension Examination. Turning to his hearing loss, such has been mild for the entire appeal period, but worsened in severity towards the latter end of the period on appeal. In this regard, as noted in a November 2015 VA audiological examination, the Veteran’s pure tone thresholds averaged at 25 decibels in the right ear and 40 in the left ear, and caused only some difficulties understanding the tv and his wife. Moreover, he denied tinnitus at that time. Similarly, an August 2018 VA examination noted comparable Puretone thresholds, and that his hearing loss caused some difficulty hearing in conversations, but no occupational impairment, and he again denied tinnitus. Based on the foregoing, the Board finds that the Veteran’s service-connected disabilities did not render him unable to secure or follow substantially gainful employment prior to October 31, 2017. In this regard, as described above, the Veteran’s only occupational impairment was mild and moderate peripheral neuropathy. Notably, his mental faculties were not affected by his service-connected disabilities at that time. Further, although the Board notes that such disabilities would cause some impairment to his occupational abilities, as is represented by his already assigned disability ratings, such impairment does not preclude employment and he would be able to perform the duties to a reasonably successful degree of employment. In this regard, the Veteran would be limited in securing and following occupations that require a high degree of physical duties, however he would not be very limited in occupations that do not require such, such as office work. Notably, the Veteran had a long career in law enforcement, he worked as a messenger for many years, and he has a two-year college degree, all of which would help him find employment. In this regard, the Board notes that the Veteran’s employer indicated that his health was the main reason he resigned from his work as a messenger in 2014. However, upon a review of the records, the Veteran has numerous disorders that are not service-connected, including some mental health disorders which cause memory loss and forgetfulness, which seemed to be the basis of such health-related work problems. Importantly, the Board can only consider the occupational impairment caused by the Veteran’s service-connected abilities, and thus, such mental impairment does not factor into this analysis. Therefore, prior to October 31, 2017, the Board finds that the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. As such, a TDIU prior to such date is not warranted. As October 31, 2017, the Veteran was service-connected for coronary artery bypass graft with coronary artery disease, which was evaluated in a January 2018 VA examination. A that time, the examiner noted the Veteran had bypass surgery and an aortic valve replacement in February 2017. He was further noted to have fatigue at 5 to 7 METs (metabolic equivalents), which is consistent with activities such as walking up one flight of stairs, golfing (without cart), or mowing the lawn. Thereafter, his heart disability was evaluated again in an August 2018 VA examination. Importantly, the examiner noted that the Veteran has chronic congestive heart failure. Further, 3 to 5 METs results in dyspnea, fatigue, and angina. Conversely however, both examiners opined that his heart disability does not impair him in a sedentary employment situation. During this period on appeal, the Veteran’s peripheral neuropathy also worsened, as shown by an August 2018 VA examination. The findings from such examination showed the Veteran’s neuropathy had worsened to become severe incomplete paralysis of the median nerves and moderately severe incomplete paralysis of the sciatic nerves. He was found to have moderate intermittent pain, paresthesias/dysesthesias, and numbness in all extremities, as well as less grip strength. He also had decreased hand/fingers, ankle/lower leg, and feet/toes sensations bilaterally, as well as decreased position sense and vibration sense. Again however, the examiner found that such impairment would not preclude sedentary employment. Based on the foregoing, and resolving all doubt in the Veteran’s favor, the Board finds that his service-connected disabilities have rendered him unable to secure and follow substantially gainful employment since October 31, 2017, the date he was service-connected for a heart disability. In this regard, although the examiners opined that the Veteran’s disorders would not preclude sedentary employment, the Bord finds that the Veteran’s chronic congestive heart failure would make any employment difficult to secure and would require substantial accommodations. Further, the combined physical burden of all his disabilities would make even occupations with light physical activity very difficult. Finally, the Veteran’s worsening peripheral neuropathy, including the lessened grip strength, would cause significant difficulty with any employment due to his weakness and decreased dexterity. (Continued on the next page)   Thus, based on the foregoing and resolving all doubt in the Veteran’s favor, the Board finds that his service-connected disabilities prevented him from securing or following a substantially gainful employment since October 31, 2017. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, entitlement to a TDIU as of such date is warranted. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan M. Estes 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.