Citation Nr: 20044698 Decision Date: 07/06/20 Archive Date: 07/06/20 DOCKET NO. 12-08 014A DATE: July 6, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), on an extraschedular basis, is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU, on an extraschedular basis, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1969 to August 1971. This matter comes to the Board of Veterans’ Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in St. Petersburg, Florida, which, in pertinent part, granted service connection for diabetes mellitus with mild cataracts of both eyes, assigning a 20 percent rating, effective August 28, 2009. In February 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board video conference hearing at the AOJ. This case was before the Board in April 2016, at which point the Board denied a higher rating for diabetes mellitus. The Veteran appealed the Board’s April 2016 decision to the U.S. Court of Appeals for Veterans Claims, only so far as the Board did not adjudicate the issue of entitlement to a TDIU that was raised by the record. The Veteran did not challenge the merits of the Board’s decision with respect to the rating assigned for his diabetes mellitus. See U.S. Court of Appeals for Veterans Claims August 2017 memorandum decision, p. 2. The Board remanded the claim, pursuant to the Court’s memorandum decision, in May 2018. The AOJ was to send the Veteran a notice letter addressing the criteria for substantiating a claim for a TDIU; ask the Veteran to identify any additional, relevant treatment records for his service-connected disabilities; obtain a VA medical examination and opinion to determine the functional impairment caused by the Veteran’s service-connected disabilities including the degree of interference with capacity for employment; and refer the claim for the Director of C&P Service for consideration of entitlement to an extraschedular TDIU rating under 38 C.F.R. § 4.16 (b). The directives of the Board’s remand having been substantially complied with the case is now returned for appellate review. 1. Entitlement to a TDIU on an extraschedular basis The Veteran contends that he is unemployable because of his service-connected disabilities. The question for the Board is whether the Veteran’s service-connected disabilities render him unemployable. The Board concludes that the preponderance of the evidence weighs against finding that the Veteran’s service-connected disabilities render him unemployable. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2017); Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran’s service-connected disabilities are diabetes mellitus with mild cataracts of both eyes, rated as 20 percent disabling, effective August 28, 2009; and neuropathy of the bilateral lower extremities, associated with diabetes mellitus type II with mild cataracts of both eyes, each rated as 10 percent disabling, effective September 6, 2014. The Veteran’s combined disability rating is 20 percent, effective August 28, 2009; and 40 percent, effective September 6, 2014. Thus, the Veteran’s combined schedular rating for service-connected disabilities does not meet the schedular criteria for a TDIU. See generally 38 C.F.R. § 4.25, Table I – Combined Ratings Table. Nevertheless, even if the Veteran does not meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for TDIU, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would have justified a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). 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). In this Veteran’s case, the Director of Compensation denied TDIU on an extraschedular basis in May 2020. However, the Director’s decision is not evidence, but is rather akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). A TDIU determination is left to the Board’s discretion, not a medical examiner’s discretion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects a disability, or disabilities, have upon a person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Similarly, the Veteran is competent to report symptoms that he experiences which are observable through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran noted on his formal TDIU claim in March 2018 that he last worked as an independent contractor/ truck driver in 2010. He noted that his peripheral neuropathy of the bilateral lower extremities prevented him from securing or following any substantial gainful occupation. He indicated that his highest education was eighth grade. He also noted that he attended Road Master Driving School in 1999 and had no other education and training since he became too disabled to work. The Court’s memorandum decision cited to the Veteran’s July 2009 Social Security Administration benefits application, in which the Veteran stated that his diabetes, high blood pressure, irregular heartbeat, and pain following a kidney removal limited his ability to work, and that he became unable to work in January 2009. See U.S. Court of Appeals for Veterans Claims August 2017 memorandum decision, p. 2. The Court also alluded to the Veteran’s VA examination report in February 2010 in which the examiner noted that the Veteran’s cataracts had significant effects on his employment. Id. at 3. The Court found that the issue of TDIU had been raised by the record on the basis of this evidence. The Veteran’s attorney also submitted a private February 2018 TDIU vocational assessment report from a certified rehabilitation counselor with a waiver of AOJ jurisdiction noting that the Veteran’s diabetes mellitus with cataracts, and neuropathy of the bilateral lower extremities rendered him unemployable since 2010. The rationale was that the Veteran’s symptoms due to his service-connected diabetes would result in significant amount of time off tasks and would reduce productivity, which would not be tolerated by any employer. The opinion also noted that the Veteran would have difficulty with a sedentary job because he would have to get up often, and also would have problems with continuing his line of work as a truck driver because his feet would get stiff. It was noted that the Veteran’s education of having only completed eighth grade and his work history would not be transferable to another type of job. While the examiner describes the Veteran’s functional impairment as a result of his diabetes with cataracts and peripheral neuropathy of the bilateral lower extremities, and notes that the Veteran would be limited in different types of employment, functional impairment does not amount to unemployability and notably there is significant evidence that is not in agreement with the private examiner’s conclusions. Disability ratings, in and of themselves, are meant to account for lost time from work, including the average impairment in earning capacity resulting from the disabilities in civil occupations. See 38 C.F.R. § 4.1. As it was determined that the evidence as it stands is insufficient to rate the claim, additional examination was provided in November 2018. A November 2018 VA examination addressing the Veteran’s diabetes notes that the Veteran was encouraged to exercise and stay active. It was noted that the diabetes did not require regulation of activities as part of medical management of his diabetes mellitus. The Veteran visited his diabetic care provider for episodes of ketoacidosis and/ or hypoglycemia less than two times per month. He had no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations in the last 12 months. Regarding his peripheral neuropathy, the Veteran stated that his feet would always burn, and he felt like he was walking on pebbles. He noted that he had neuropathy shoes with extra cushion that helped; but his toes were numb and felt really bad in them. He also noted that his hands were stiff and hurt. On physical examination, the examiner determined that the Veteran had mild incomplete paralysis of the sciatic nerve. Well-fitting, sturdy shoes were indicated due to diminished protective sensation in the feet. With respect to the cataracts, the Veteran was found to have mild nonproliferative diabetic retinopathy in the left eye; and no diabetic retinopathy in the right eye. The examiner found that this condition did not result in any visual impairment noted on the eye examination. Overall, the examiner found that while the Veteran’s diabetes mellitus and complications impacted his ability to work, it did not prevent him from functioning in an occupational environment. The Veteran described work as a truck driver for the latter years of his career. Prior to that, he was an entrepreneur and owned and ran his own roofing business. Review of the Veteran’s treatment records revealed no specifically prescribed activity restrictions related to his service-connected disabilities. On the contrary, he was recommended to exercise and engage in physical activity, including walking. The examiner noted that if the Veteran was working, reasonable accommodations would be needed for access to meals and snacks and depending on hours worked – for self-insulin administration/ storage/ blood glucose monitoring. Marked variations in physical activity (such as working swing shifts, or a physically strenuous job on variable days) would most likely result in the need for adjustment of insulin dosages. The examiner also noted that the US Department of Transportation Federal Motor Carrier Safety Administration recently issued an updated ruling that enabled insulin-treated diabetics on a stable regimen to obtain a Medical Examiner’s Certificate to operate commercial vehicles. Individuals with insulin-treated diabetes no longer had to obtain an exemption from the Federal Motor Carrier Safety Administration. In February 2019, the Veteran’s attorney argued that the examination and opinions provided in November 2018 were insufficient. Specifically, his attorney argued that the examiner offered contradictory findings by noting that the Veteran’s peripheral neuropathy symptoms would impact his ability to maintain employment because of diminished sensation in his feet that would require well-fitting, sturdy shoes; but also found that his service-connected conditions, in an aggregate sense, would not impact his ability to function in an occupational environment. The Board disagrees that the November 2018 VA medical opinion is contradictory. The examiner acknowledged that the Veteran’s diabetes mellitus and complications impacted his ability to work. However, the examiner further found that the Veteran’s diabetes and complications did not prevent the Veteran from functioning in an occupational environment. The examination was based on a physical examination of the Veteran, review of his medical history, and included a rationale with supporting reasoning for the opinion provided. It was noted that the Veteran’s diabetes did not require any restriction of activities; in fact, he was encouraged to exercise and be physically active. With respect to his need for regular eating and administering insulin, he would need to have reasonable accommodations in employment. Regarding his diabetic neuropathy, he would need to have well-fitting, sturdy shoes due to diminished protective sensation in his feet. The November 2018 VA examination report is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The record shows that the Veteran did not attend high school and has a history of working as a truck driver with some additional driving training and working as an entrepreneur as an owner of a roofing company. The evidence does not support that he was unemployable as a result of his service-connected disabilities. He was encouraged to continue to do physical activity. His peripheral neuropathy caused discomfort in his feet and required the use of special shoes to protect his feet but did not prevent him from maintaining employment. Based on the record, the evidence does not show that the Veteran was incapable of performing physical and mental acts required by employment, notwithstanding the limitations caused by his service-connected disabilities, particularly the peripheral neuropathy of the lower extremities. While the Veteran’s peripheral neuropathy would impact his ability to keep or obtain employment due to his functional impairment and symptoms, as noted, his disability rating for his peripheral neuropathy is recognition of this impairment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Even though the Veteran’s peripheral neuropathy would interfere with prolonged walking without the use of special shoes, and the Veteran had complaints of burning and numbness in his feet, the medical evidence does not establish that the Veteran is prevented from working as a result of his service-connected peripheral neuropathy either alone or in combination with the service-connected diabetes mellitus. As for the evidence of record that the Veteran was unable to work since January 2009, the Veteran noted on his SSA application that he was asserting that in addition to his diabetes, other nonservice-connected disabilities, including high blood pressure, irregular heartbeat, and pain following kidney removal caused him to be unable to work. See July 2009 Social Security Administration benefits application. SSA records show that the Veteran indicated that diabetes was one of the disabilities that limited his ability to work but did not assert that he was unemployable solely as a result of his diabetes. While the Veteran had a physical residual functional capacity assessment with a primary diagnosis of diabetes mellitus, the primary and secondary diagnosis on which his SSA benefits were based were disabilities other than diabetes. Nonservice-connected disabilities are not for consideration in determining entitlement to a TDIU. As noted, a VA examination in February 2010 indicated that the Veteran’s vision difficulty would impact his occupational activities. But an eye examination in August 2016 noted that the Veteran’s eye condition did not impact his ability to work. VA examination reports in February 2010, January 2014, February 2015, and May 2017 also note that there was no impact on the Veteran’s ability to work as a result of his diabetes and diabetic neuropathy. While the Veteran believes his service-connected disabilities rendered him unemployable, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of how physical and mental disabilities affect functioning in a work environment, and complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence of record. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, Counsel 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.