Citation Nr: 21001678 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-62 517 DATE: January 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the regulations governing payment of monetary awards. FINDING OF FACT The Veteran’s service-connected disabilities (peripheral vascular disease and venous insufficiency of the both lower extremities associated with type 2 diabetes, rated 40 percent, each; diabetic nephropathy associated with type 2 diabetes, rated 30 percent; type 2 diabetes mellitus, rated 20 percent; peripheral neuropathy of both lower extremities associated with type 2 diabetes, rated 20 percent, each; peripheral neuropathy of both upper extremities associated with type 2 diabetes, rated 20 percent, each; erectile dysfunction (ED) associated with type 2 diabetes, rated 0 percent) are rated 90 percent, combined, and are reasonably shown to be of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The schedular criteria for a TDIU rating are met, and a TDIU rating is warranted. 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 appellant is a Veteran who served on active duty, including in Vietnam, from October 1969 to September 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision which, inter alia, denied a TDIU rating. In January 2021, a virtual hearing was held before the undersigned. Entitlement to a TDIU rating is granted. Legal Criteria, Factual Background, and Analysis A TDIU rating may be assigned, where the schedular rating is less than total, when a Veteran is unable to maintain a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated 60 percent or more; if there are two or more disabilities, at least one must be rated 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and work experience, but not age or impairment due to nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s service-connected disabilities (peripheral vascular disease and venous insufficiency of both lower extremities, rated 40 percent, each; diabetic nephropathy, rated 30 percent; type 2 diabetes mellitus, rated 20 percent; peripheral neuropathy of both lower extremities, rated 20 percent, each; peripheral neuropathy of both upper extremities, rated 20 percent, each; and ED, rated 0 percent) are rated 90 percent, combined. The 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating are met. What remains to be determined is whether his service-connected disabilities are of such nature and severity as to preclude his participation in substantially gainful employment consistent with his education and work experience. The Veteran contends that he is unable to work due to his service-connected disabilities, particularly his type 2 diabetes mellitus and associated disabilities. He has a high school degree and worked more than 25 years for a chemical company/manufacturer before retiring in 2013. See September 2014 VA Form 21-8940. His job duties were alternatively listed as “computer operator” and “bulk room operator.” Id; see also November 2014 VA Form 21-4192. His employer did not report that any concessions were made by reason of age or disability. However, in a November 2014 statement, the Veteran reported that he retired due to leg pain and difficulty traversing stairs/walking on concrete floors, and that he “had papers that excused [him] from working if [his] sugar was too high or too low.” At his January 2021 Board hearing, the Veteran testified that all of his work experience has been in jobs requiring physical exertion (none were of an office/clerical type). He reported that he has a 12th grade education and no postservice training. He testified that his disabilities manifest in difficulty getting around and necessitate the use of assistive devices; he reported that he has a lift that takes him up and down stairs in his house. He also testified that he cannot engage in sedentary work due to upper extremity limitations, and inability to sit for prolonged periods. Considering the service-connected disabilities in turn, the Board notes that the 40 percent ratings, each, assigned for peripheral vascular disease and venous insufficiency of the right and left lower extremities produce claudication (pain by limited blood flow) and trophic changes on walking between 25 and 100 yards on level ground at 2 miles per hour. The 30 percent rating assigned for diabetic nephropathy under Diagnostic Code (Code) 7541 reflects renal dysfunction. The 20 percent rating assigned for type 2 diabetes mellitus reflects required use of an oral hypoglycemic agent and restricted diet. The 20 percent ratings, each, assigned for peripheral neuropathy of the lower extremities (under Code 8621 for neuritis) reflect moderate incomplete paralysis of the lower extremities. And the 20 percent ratings, each, assigned for peripheral neuropathy of both upper extremities (under Code 8713 for neuralgia) reflect mild incomplete paralysis of upper extremities. On December 2014 VA diabetes mellitus examination, the examiner (a nurse practitioner) noted the Veteran’s history of working more than two decades for a plastics company. The examiner noted some job duties involved computer work, but that other duties involved “physically laborious work of lifting and carrying 50 pound bags of plastic and cutting materials in a blender.” She opined that he is capable of sedentary employment. On December 2014 VA diabetic neuropathy examination, the Veteran reported constant tingling/needle pain in both feet and “up to above the ankle when he is sitting or immobile.” He reported constant numbness. Regarding the upper extremities, he reported intermittent numbness of both hands. Although the examiner checked the box to indicate the neuropathies have no impact on the Veteran’s ability to work, the report also notes that bilateral lower extremity sensory testing found absent sensation to light touch, position sense, and cold sensation, and diagnoses of upper and lower bilateral diabetic peripheral neuropathy. Given those findings, it may reasonably be assumed (despite the conclusory opinion that there is some impact on occupational functioning. On December 2014 VA artery and vein conditions examination, the same examiner opined the Veteran’s bilateral lower extremity peripheral vascular disease does not impact his ability to work. However, she also listed a June 2013 ankle-brachial index (ABI) test (interpreted by a physician, chief of vascular surgery) established that calcified arteries of both lower extremities rendered ABIs uninterpretable, and that pulse volume recording “suggest mild arterial insufficiency of both lower extremities [even] at rest.” The examiner did not explain how such impairment would not impact on occupational functioning. In a November 2017 statement, the Veteran related that his peripheral vascular disease and peripheral neuropathy cause mobility issues, such as difficulty getting in and out of chairs and bed. He noted that he has a VA-installed chairlift at home and uses a cane or walker. He reported sustaining a fall in January 2015, being hospitalized for one week, and requiring 12 weeks of rehabilitation. [January and February 2016 VA clinical records confirm private hospitalization/treatment following a fall at home, and show recommendations for stair glides, additional walkers to be placed at the top/base of stair glides, a potty chair, and a shower chair with hand-held shower.] The Veteran has a limited (to high school) education; and has had no additional education or training. His occupational experience (although noted to include some computer work [he testified he lacks computer skills] on December 2014 VA examination) has primarily been in physically demanding work as a bulk room operator, as described by the Veteran and his former employer. His peripheral vascular disease, diabetes, and associated peripheral neuropathies of both upper and both lower extremities preclude employment that requires physical labor. They also substantially limit (if not preclude) sedentary work; notably, June 2013 objective testing showed calcified arteries and “mild arterial insufficiency of both lower extremities at rest” (emphasis added) (suggesting limitations with sedentary employment, inability to sit for prolonged periods). Although the December 2014 VA diabetes mellitus examiner opined the Veteran is capable of sedentary employment, she did not address the combined effect of all of the Veteran’s service-connected disabilities on his ability to maintain employment. Furthermore, later treatment records (and the Veteran’s testimony) suggest that his disabilities have worsened since. VA treating providers have since such recommended safety measures as use of stair glides, walkers on each floor of the house, a potty chair, and a shower chair, suggesting the Veteran’s ability to perform the activities of daily living is much more limited than was noted by the December 2014 examiner (i.e. the December 2014 examiner’s conclusion is facially inconsistent with the more recent notations in VA treatment records). Resolving remaining reasonable doubt in the Veteran’s favor, as required (see 38 C.F.R. § 4.3), the Board finds that a TDIU rating is warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.