Citation Nr: 21001111 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-56 219A DATE: January 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective November 4, 2015. FINDINGS OF FACT 1. The Veteran filed a formal standalone claim for a TDIU on November 4, 2015. 2. The Veteran’s service-connected disabilities (to include diabetes mellitus and complications stemming therefrom) precluded all forms of substantially gainful employment throughout the entire rating period on appeal. CONCLUSION OF LAW The criteria for a TDIU are met beginning November 4, 2015. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1970 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. TDIU—Laws and Analysis A total disability rating for compensation based on TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Here, the Veteran’s service-connected disabilities (i. e., diabetes mellitus, diabetic neuropathy of the upper and lower extremities, and diabetic nephropathy) result in a 70 percent combined disability rating as of August 30, 2010. As such, the Veteran meets the rating percentage standards for TDIU under 38 C.F.R. § 4.16 (a). Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran’s service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. The Veteran filed a formal and standalone claim for a TDIU on November 4, 2015. At that time, he indicated that he last worked (retired) in 2010 as a sales associate. The Veteran’s formal TDIU application noted that he completed high school and college. The Veteran further indicated that his diabetes disability (and complications stemming therefrom) prevented him from securing or following any substantially gainful occupation. The evidence also includes a December 2010 VA examination, where the Veteran reported progressive loss of strength in his legs and arms and tingling and numbness in his legs and feet. The Veteran also submitted an October 2014 diabetes Disability Benefits Questionnaire, completed by his treating physician, identified as Dr. Mitchell. At that time, the physician noted that the Veteran was to avoid “strenuous activities.” As it pertained to the management of his diabetes disability, Dr. Mitchell explained that the Veteran would be required to monitor his medications and blood sugar. These restrictions, according to Dr. Mitchell, impacted the Veteran’s ability to work. During a December 2015 VA examination for diabetes mellitus, the Veteran reported having pain and numbness in his toes and feet. He further reported having lower extremity edema. The examiner objectively confirmed the bilateral lower extremity edema on examination. In a December 2015 VA neuropathy examination report, the examiner opined that the Veteran’s diabetic neuropathy would impact the Veteran’s ability to work in that the Veteran would be unable to stand for longer than 30 minutes without needing to rest. The Veteran was also unable to walk over 500 feet and had “severe” foot pain at the end of the day if standing or walking more than 1 hour. The Veteran was afforded another VA neuropathy examination in March 2019. This examiner similarly indicated that the Veteran’s diabetic neuropathy would impact his ability to work. Specifically, the examiner stated that the Veteran had a decreased ability to hold objects in his fingers due to loss of sensation. Standing was also limited to less than an hour and repetitive tasks were limited due to numbness in his hands and feet. In his VA Form 9, the Veteran noted that he would be unable to work full-time as it would be difficulty for him to monitor his blood sugar and eat 3-4 different meals a day. During the October 2020 Board hearing, the Veteran also stated that, although he voluntarily retired in 2010, he experienced pain and swelling in his legs in feet while working “every day.” In a November 2017 statement, the Veteran’s spouse indicated that the Veteran could not stand or sit for any length of time due to “swelling in his legs, feet and hands.” She also stated that the Veteran did not have the physical stamina to complete simple household tasks. The Board finds that these statements by the Veteran and his spouse are consistent with the medical evidence discussed above. Based on the foregoing, and with resolution of any reasonable doubt in favor of the Veteran, the criteria for entitlement to a TDIU are met as the evidence reflects that the Veteran is unable to secure or maintain a substantially gainful occupation due to his service-connected diabetes disabilities. As noted, the Veteran has been found to have difficulties with standing, walking, and sitting due to his diabetic neuropathy symptoms and edema in the lower extremities. He has also been found to have a decreased ability to hold objects in his fingers due to loss of sensation. The Board finds that these restrictions would significantly limit the Veteran’s ability to perform any occupational task. As such, the Board resolves doubt in the Veteran’s favor in finding that he is unable to obtain or maintain substantially gainful employment consistent with his educational and work background. Therefore, the Veteran’s TDIU claim is granted. 38 C.F.R. § 4.16. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.