Citation Nr: 20043768 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 19-14 026 DATE: June 29, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1965 to October 1985, including service in Vietnam. The Board notes that, in the substantive appeal (VA Form 9), the Veteran specified that he is appealing only the denial of TDIU, and it is therefore the only issue for which the Board has jurisdiction at this time. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, but the percentage requirements of § 4.16(a) are not met, the matter may be referred to the Director, Compensation Service, for consideration of entitlement to the benefits on an extraschedular basis. 38 C.F.R. § 4.16(b). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). VA’s duty to maximize benefits requires it to assess all of a claimant’s service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, 22 Vet. App. 280, the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a “total” rating. When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230. 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). Marginal employment shall be deemed to exist when a veteran’s earned annual income does not exceed the poverty threshold for one person, or on a facts found basis when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Id. A determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, VA is responsible for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the disability makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the purposes of assigning effective dates, TDIU claims are treated as if they are increased rating claims. 38 C.F.R. § 3.400 (o). Here, the Veteran meets the schedular criteria for TDIU with a combined rating of 90 percent for the entirety of the appeal period. Currently, he is service-connected for nephropathy with hypertension (60%); diabetes mellitus, type 2 (20%); peripheral neuropathy, right upper extremity (20%); peripheral neuropathy, left upper extremity (20%); hearing loss (20%); hypothyroidism (10%); peripheral neuropathy, right lower extremity (10%); peripheral neuropathy, left lower extremity (10%); tinnitus (10%); and a noncompensable rating for cataracts associated with diabetes mellitus, type 2. In his application for a TDIU, the Veteran indicated that he had a high school education and had not worked since 2004, when he was employed at a manufacturing company that closed. On a May 2017 VA hypertension examination, the examiner found that the Veteran’s service-connected hypertension did not impact his ability to work. At a VA kidney examination on the same day in May 2017, the Veteran reported no current symptoms or treatment for his service-connected nephropathy. According to the report of this examination, laboratory studies and diagnostic testing were normal. The examiner found that the Veteran’s nephropathy did not impact his ability to work. On VA examination in June 2017 for peripheral neuropathy, the Veteran reported numbness and tingling in toes and fingers. The examiner found mild bilateral extremity incomplete paralysis in the median, ulnar, and sciatic nerves. On VA examination in June 2018 for hearing loss, the Veteran reported that his hearing loss caused difficulty hearing clearly in conversation, with worsening when there is background noise. In an opinion received in May 2019, the Veteran’s treating physician stated that the Veteran’s high dosage pain medications for polyneuropathy caused him to be incapable of working. On VA examination in October 2019 for peripheral neuropathy, the examiner noted that the Veteran’s peripheral neuropathy caused limitation of standing and ambulation to approximately 10 to 15 minutes, or 1 to 2 blocks walking. The examiner also found that the Veteran experienced intermittent severe pain in his lower extremities due to peripheral neuropathy and constant mild pain. He also had moderate paresthesias and numbness in his lower extremities. The Veteran exhibited decreased feeling and cold sensation in his lower extremities. On VA examination in November 2019, the examiner indicated that the Veteran’s diabetes mellitus had progressed from Type 2 to Type 1, where oral medications were not effective and can only be treated with insulin. However, the examiner found that the Veteran’s diabetes did not impact his ability to work. In light of the significant peripheral neuropathy of the Veteran’s lower extremities, and required pain medication, and medical opinion concerning his neuropathy, in addition to his difficulty hearing, the Board finds that the evidence supports a finding of entitlement to a TDIU. His peripheral neuropathy not only makes it impossible for him to work in a physically demanding job, it also prohibits him from walking more than a block or two or standing for more than 10 to 15 minutes. Further, his hearing loss would make it difficult for him to obtain work at a desk job because talking on the phone would be difficult. Finally, the medical opinion from his treating physician makes it clear that the Veteran is prescribed pain medication that would also inhibit his ability to work. The Veteran meets the schedular criteria for a TDIU rating. 38 C.F.R. § 4.16(a). Based on the evidence of record, the Board finds the overall evidence is persuasive that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Specifically, he is limited both by his hearing loss and his neuropathy to the point that gainful employment is not possible. Entitlement to a TDIU is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.