Citation Nr: 20046612 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 17-49 154 DATE: July 13, 2020 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted, subject to the law and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for neuropathy of the upper extremities is remanded. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy of the left lower extremity is remanded. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy of the right lower extremity is remanded. FINDING OF FACT The evidence as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities is, at least, in equipoise. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1968 to July 1972, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In a May 2019 brief, the Veteran’s attorney raised the issue of his entitlement to a TDIU as part and parcel of his claim for higher ratings for the diabetic peripheral neuropathy of his lower extremities. The Board has expanded the appeal accordingly. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU The Veteran and his attorney contend that he is unable to work due to his service-connected disabilities, to include, in part, the service-connected neuropathy of the lower extremities. The Veteran stated in his application for TDIU (VA Form 21-8940) that he had not worked since August 2007. Under Rice, VA is required to consider a TDIU claim if, in connection with making a claim for the highest rating possible for a disability, a claimant submits evidence of a medical disability and evidence of unemployability. See also Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). A total disability rating for compensation may be assigned where the schedular rating is less than total and 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 such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Unlike the rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). In this case, the duty to assist in developing a TDIU claim is triggered by evidence of unemployability presented within the context of the Veteran’s appeal for an increased rating of his diabetic neuropathy of the lower extremities. Specifically, by a May 2019 brief, the Veteran’s attorney argued for an increased rating for peripheral neuropathy of the lower extremities, to include individual unemployability. The attorney then submitted medical and vocational opinions indicating that the collective impact of the Veteran’s service-connected disabilities have rendered him unemployable since May 20, 2014. See, e.g., March 2019 opinion issued by H.S., MD; see also April 2019 vocational opinion issued by S.G.B., RhD, CVE, CRC, NCC, LPCC. As for eligibility for a schedular award of TDIU, the Board finds that the Veteran meets the threshold requirements. He is currently in receipt of the following: a 70 percent rating for posttraumatic stress disorder (PTSD); a 20 percent rating for diabetes mellitus, type II; a 20 percent rating for diabetic peripheral neuropathy of the right lower extremity; a 20 percent rating for diabetic peripheral neuropathy of the left lower extremity; and a 10 percent rating for residuals of myocardial infarction. The Board further finds that the evidence supports an award of a TDIU. As the Veteran’s attorney has aptly stated, the Veteran’s October 2015 PTSD examination demonstrates the presence of severe symptoms that interfere with employment and impair social and occupational functioning. These impairments are echoed throughout the claims file. See, e.g., July 2018 PTSD examination. Medical experts specializing in vocational training have reviewed the Veteran’s service-connected disabilities and his VA treatment history and have offered probative opinions in support of the Veteran’s TDIU claim. See, e.g., January 2019 opinion of H.H.-G. PhD, HSPP; March 2019 opinion of H.S., MD. See also April 2015 opinion of S.G.B., RhD, CVE, CRC, NCC, LPCC. Each of these evaluations is entitled to significant probative weight. The authors have each demonstrated that they are informed with regard to sufficient facts; they have offered fully articulated opinions; and their opinions are supported by reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The final determination with respect to a veteran’s entitlement to a TDIU is an adjudicatory, not a medical, function. With that said, under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran’s description of the functional effects of his service-connected impairments, the Board is persuaded that he is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A TDIU is therefore granted. In arriving at this conclusion, the Board intimates no opinion, either legal or factual, as to the appropriate effective date of the award. That matter will be addressed by the agency of original jurisdiction when the award is effectuated.  REMANDED 1. Entitlement to service connection for neuropathy of the upper extremities is remanded. The Veteran is service connected for diabetes mellitus, type II. He is presumed to have been exposed to herbicide agents, including Agent Orange, while serving in Vietnam. VA treatment records indicate the presence of chronic pain in the Veteran’s upper extremities as early as 2009. See, e.g., December 2009 Mental Health follow up note. Specifically, the Veteran complained of pain related to joints in his hands. During a 2010 VA examination for diabetes, the Veteran denied the existence of any neurologic symptoms. By May 2014 written correspondence, the Veteran indicated that he was being treated at the Sussex County VA Medical Center (VAMC) for several disabilities, including “diabetic neuropathy in all limbs and hands.” Treatment records from Sussex County identify a diagnosis of arthritis in the Veteran’s hands and knees. See, e.g., July 2014 nurse practitioner treatment record; see also January 2014 pain medication management note. There was no indication of a diagnosis of upper extremity neuropathy. In August 2015, the Veteran underwent a VA diabetes examination. The examination report listed no complications of diabetes. In October 2015, a VA examiner, S.M., ARNP-BC, reviewed the Veteran’s VBMS file, performed an in-person assessment, and determined that the Veteran did not suffer from diabetic neuropathy. See October 2015 VA diabetic sensory examination. However, the October 2015 examiner did not have the benefit of reviewing the results of EMG (electromyographic) testing subsequently conducted in November 2015, which showed evidence of peripheral neuropathy of the lower extremities. Accordingly, the examiner was asked to provide an addendum opinion. The examiner was also asked to consider VA treatment records from the Wilmington VAMC, dated in April and August 2013, which were added to the record and referenced an impression of diabetic peripheral neuropathy with an examination showing paresthesia and allodynia to the bilateral hands, arms, and legs. In December 2015, the Veteran underwent an additional VA examination for diabetic neuropathy. The same clinician who performed the October 2015 examination determined that the Veteran did, in fact, suffer from diabetic neuropathy of the lower extremities. The examiner also indicated, in pertinent part, that the Veteran had not been diagnosed with upper extremity neuropathy. She did not comment on the April and August 2013 VA treatment reports, however. In addition, later in the report, she opined that the Veteran had a “bilateral upper extremity peripheral neuropathy” that was “most likely due to or the result of” the Veteran’s service-connected diabetes mellitus. Because the report is incomplete and internally inconsistent, another examination is warranted. 2. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy of the left lower extremity is remanded. 3. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy of the right lower extremity is remanded. Because the peripheral neuropathy examination being ordered in connection with the aforementioned issue may produce further evidence pertinent to the evaluation of the Veteran’s bilateral lower extremity peripheral neuropathy, the Board will remand this issue as well. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for another issue). These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA diabetic neuropathy examination. If feasible, the examination should be conducted by an individual other than the clinician who conducted the previous examinations. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should indicate whether the Veteran suffers from diabetic peripheral neuropathy, paresthesias, or any similar neurologic disability of the upper extremities. If any such disability is identified, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability has been (a) caused or (b) aggravated by the Veteran’s diabetes. In doing so, the examiner should consider VA treatment records from the Wilmington VAMC, dated in April and August 2013, which reference an impression of diabetic peripheral neuropathy with an examination showing paresthesia and allodynia to the bilateral hands, arms, and legs. The examiner should also assess the severity of the Veteran’s service-connected bilateral lower extremity peripheral neuropathy, reporting all signs and symptoms necessary for evaluating the Veteran’s disability under the relevant rating criteria. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, Associate 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.