Citation Nr: 20042385 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 16-33 021 DATE: June 23, 2020 ORDER Entitlement to a total disability rating based on individual unemployment (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities, most notably his prostate cancer, peripheral neuropathy, and peripheral vascular disease, prevented him from being able to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The criteria are met for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Marines from March 1964 to September 1968. This appeal to the Board of Veterans’ Appeals (Board) originates from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in April 2019 and, consequently, the Board summarily dismissed this appeal in July 2019. However, his surviving spouse, so widow, since has been substituted as the Appellant to process this claim to completion. Entitlement to a TDIU is granted. On his February 2016 TDIU application (on VA Form 21-8940), the Veteran contended that his service-connected disabilities, specifically, his prostate cancer, peripheral neuropathy, and peripheral vascular disease, prevented him from being able to obtain and maintain substantially gainful employment. According to other information he provided on this form, he had last worked as a crane operator in March 1998, so several years earlier. An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability or disabilities. For schedular consideration, a Veteran must meet one of the following conditions: 1) if he has just one service-connected disability, it must be rated at 60 percent or more, or 2) if he has more than one service-connected disability, at least one must be rated at 40 percent or more with additional service-connected disability sufficient to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, however, disabilities resulting from common etiology or single accident or affecting one or both upper or lower extremities will be considered as one, collective, disability. Id. During the applicable review period beginning in February 2015 and continuing until his unfortunate death in April 2019, the Veteran had the following service-connected disabilities and corresponding ratings for them: Prostate Cancer (60 percent from June 2013); Peripheral Neuropathy of the left upper extremity (30 percent from December 2013; 20 percent from March 2016; and 30 percent from September 2017); Diabetes Mellitus Type II (20 percent from October 2013); Peripheral Neuropathy of the right upper extremity (20 percent from December 2013); Bilateral Peripheral Neuropathy of the lower extremities (20 percent from December 2013 and 10 percent from October 2017); Diabetic Peripheral Vascular Disease of the bilateral lower extremities (40 percent from July 2016 and non-compensable from November 2018). He had a combined rating of 70 percent or higher since June 2013. Consequently, the ratings for the Veteran’s service-connected disabilities meet the criteria for schedular consideration of entitlement to a TDIU. Moreover, as will be discussed, the evidence indicates his service-connected disabilities, when also considering his level of education, training and prior work experience, rendered him incapable of obtaining or maintaining substantially gainful employment. Thus, this claim must be granted. Substantially gainful employment is defined as work that is more than marginal, and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). In making this determination, consideration may be given to his level of education, special training, and previous work experience, but not to his age or to impairment owing to non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As already alluded to, the Veteran worked as a crane operator, but not only did he work in that occupation he also did it for many years – from March 1967 (i.e., from when he was in service) until he could no longer work in March 1998, so for over 30 years. He maintained that his urinary incontinence attributable to his service-connected prostate cancer, in combination with his peripheral neuropathy (also service connected), which affected his hands and feet, prevented him from re-entering the workforce and obtaining or maintaining any employment that could be considered substantially gainful versus just marginal in comparison. Specifically, he noted in his Notice of Disagreement (NOD) that he required the use of adult diapers and frequent toileting as a result of his prostate cancer—sometimes multiple times an hour. In addition, regarding his peripheral neuropathy, he indicated both in written statements and to VA examiners that it resulted in numbness in his hands and feet, in turn making walking, standing, and typing or using the phone difficult. For example, his VA treatment records indicate he had great difficulty dressing himself and required help from family members because of the extent of the numbness in his hands. It is worth repeating that, to receive a TDIU, the service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, 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. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment. Here, in his pleadings the Veteran indicated that his prostate cancer resulted in more frequent urination (meaning more frequent trips to the restroom). He also indicated that his bilateral (left and right) upper and lower extremity diabetic peripheral neuropathy caused pain and numbness in his hands and feet, thus, making it difficult to impossible for him to do any movements with his hands or feet requiring dexterity such as walking, typing or using the phone and other things of those sorts involving maneuvers.   Moreover, while VA examinations concluded the Veteran’s service-connected disabilities did not prevent him from working, in part, because his difficulty walking also resulted from non-service-connected arthritis in his knees, the Board finds that the combination of his incontinence, neuropathy, as well as leg pain he experienced as a result of his peripheral vascular disease (referred to in treatment notes and in the reports of his VA examinations as claudication—that is to say, pain resulting from too little blood flow to muscles during exercise) resulted in an inability to obtain and maintain substantially gainful employment. It also appears that each VA examiner based his/her conclusion just on the particular disability or disabilities being examined at that exact point in time, not instead when also considering the other service-connected disabilities that were being examined separately or not at all. And while it is true that VA is not obligated to obtain a medical opinion on the “combined effect” of the Veteran’s service-connected disabilities (including especially in the context of determining whether an extra-schedular rating is warranted for a particular disability), the functional impairment owing to them in combination must be considered in determining whether a TDIU is warranted. 82 Fed. Reg. 57,830 (Dec. 8, 2017); Thurlow v. Wilkie, 30 Vet. App. 231(2018). Also, notably, it is the VA adjudicator, not medical examiners, who ultimately determines whether a TDIU is warranted. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran had little-to-no experience other than operating a crane since he did that for more than 30 years, indeed, for the entire time he worked, and the diabetic peripheral neuropathy affecting his hands and feet and his peripheral vascular disease made it unlikely he could have returned to working in that capacity or even in any similar, substantially gainful, position requiring use of these extremities separately or in combination. The Court has explained the total (100 percent) unemployability is not a prerequisite for a TDIU, hence, use of the qualifying word “substantially” to give some measure of flexibility in the determination. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).   All things considered, the Board finds the Veteran's service-connected disabilities were sufficiently severe as to render him unable to secure or maintain any form of substantially gainful employment prior to his unfortunate death. Accordingly, a TDIU is warranted, subject to the statutes and regulations governing the payment of monetary benefits. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.