Citation Nr: 20037545 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 19-36 653 DATE: June 2, 2020 ORDER A total disability rating based on individual unemployability (TDIU) is granted, subject to the statutes and regulations controlling the payment of compensation. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran’s service-connected disabilities preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. CONCLUSION OF LAW The criteria are met for his entitlement to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.   REASONS AND BASES FOR FINDING AND CONCLUSION In the recent May 2020 Informal Hearing Presentation (IHP), the Veteran’s representative suggests there may be VA clinical records dated from January 2005 to February 2011 that have not been obtained and associated with the claims file. The local regional office (RO) has determined that no such records exist, however. Moreover, in October 2011, when seen at the Stockton VA facility to “establish healthcare”, the Veteran stated that he had been followed by a non-VA care provider for the last 20 years. Thus, there is no indication he was treated at a VA facility prior to 2011. He was notified of this lack of VA treatment records in the November 2019 Statement of the Case (SOC). Regardless, so in any event, the pertinent period being considered in this appeal is from the date he filed his claim for compensation in 2017. Thus, records from more than six years earlier have not been shown to be relevant to his claim, and the Board is granting his claim anyway based on the evidence already in the file since, itself, sufficient to award this requested TDIU benefit. The Veteran is in receipt of service connection for several disabilities – posttraumatic stress disorder (PTSD), diabetes, and several complications of it, namely, erectile dysfunction (ED), peripheral neuropathy of the upper and lower extremities, cataracts, and onychomycosis. In August 2017, the Veteran filed a claim for an increased rating for his diabetes, as well as for service connection for other disabilities. The RO correctly considered his claim also as one for a TDIU since derivative of those other claims, including especially for a higher, i.e., increased rating for his diabetes and associated complications. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The combined rating for his service-connected disabilities has been 90 percent effectively since July 31, 2017; thus, he meets the § 4.16(a) schedular rating requirements for a TDIU.   The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. In other words, the disability rating, itself, recognizes that there is occupational impairment to some specified extent, depending on the schedular rating assigned for the service-connected disability. Therefore, to show additional entitlement to a TDIU, there must be occupational impairment above and beyond what is contemplated by the schedular rating assigned for the disability. In determining whether a Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. See Van Hoose v. Brown v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities, alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Veteran has a high school education and occupational experience as a welder in service. Post service, he was employed for more than two decades in some form of law enforcement/corrections/security. The claims file includes the report of a January 2018 VA examination for PTSD wherein the examiner opined that the Veteran’s PTSD symptoms are best summarized as causing occupational and social impairment with deficiencies in most areas. The examiner found that the Veteran’s intrusive and unbidden images of his in-service traumas can recur and thereby distract him from attention and tasks at hand. In addition, the examiner opined that the Veteran’s hypervigilance and startle response interfere with continuation and completion of tasks, as does his anxious mood. The examiner also found that the Veteran’s persistent negative emotional state and lack of positive feelings interfere with motivation to maintain a pace at work. Partly owing to that VA examiner’s assessment, the Veteran has a 70 percent rating for his PTSD, so aside from the several additional ratings he has for his diabetes and multiple complications. See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. A July 2017 VA clinical record notes the Veteran walks ½ mile a day and is trying to increase to one mile. He reported “no problems with walking”. However, the report of a January 2018 VA examination shows he reported that his peripheral neuropathy symptoms include numbness in his hands and feet and a tingling “like ants” sensation in his toes. He was found to have no pain but moderate lower extremity paresthesias and/or dysesthesias and mild numbness of his upper extremities. The diagnosis was mild incomplete paralysis of the upper and lower extremities. The examiner opined that the Veteran’s peripheral neuropathy would not impact his ability to work. Ultimately, however, the determination of whether a TDIU is warranted is for the VA adjudicator, not instead medical examiner, who only determines the functional impact of the service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board finds that the lack of attention, interference with pace at work due to intrusive thoughts, an anxious mood, and numbness of the upper extremities can all be reasonably expected to have some effect on employment as a welder and/or in law enforcement. Working as a security officer can reasonably be found to require working with one’s hands, to include using/holding a radio and/or weapon to manipulate them, and work as a welder can reasonably be found to require handling tools and attention to detail. Also, notably, the Veteran is in receipt of service connection for his cataracts, as well, which, although described as mild, reasonably can be expected to nonetheless cause some vision impairment; vision can reasonably be found to be important while welding. It is not necessary that the Veteran have been unable to return to working as a security officer, police officer, or welder, specifically, in other words in the jobs he had for many years. However, it does not appear he has other transferable skills that would not require him to have full or at least nearly full attention to detail, feelings in his hands, and feelings in his legs/feet. While each of the Veteran’s disabilities alone may not be sufficient to preclude substantially gainful employment, in giving him the benefit of the doubt, the Board finds that a TDIU is warranted based on the combined effect of his service-connected disabilities. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.