Citation Nr: 21002267 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-35 535A DATE: January 13, 2021 ORDER A total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. From January 28, 2013, the service-connected disabilities were posttraumatic stress disorder with major depressive disorder (PTSD) (50 percent disabling), type 2 diabetes mellitus (20 percent disabling), tinnitus (10 percent disabling), and bilateral hearing loss (10 percent disabling); the combined disability ratings total was 70 percent disabling. 2. From February 24, 2014, the additional service-connected disabilities of peripheral neuropathy of the right upper extremity (20 percent disabling), peripheral neuropathy of the left upper extremity (20 percent disabling), peripheral neuropathy of the right lower extremity (10 percent disabling), and peripheral neuropathy of the left lower extremity (10 percent disabling) were added; the combined schedular disability rating was 90 percent. 3. From January 28, 2013, the Veteran was unable to follow (maintain) substantially gainful employment as a result of the service-connected disabilities. CONCLUSION OF LAW Giving the Veteran the benefit of the doubt, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from May 1968 to June 1971. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied a TDIU. The instant case has been before the Board of Veterans’ Appeals (Board) previously. The prior June 2019 Board decision denied a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which issued a joint motion for partial remand due to favorable evidence that the Board had failed to review. TDIU Legal Authority Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 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). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical question, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the VA adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). TDIU The combined disability ratings for service-connected disabilities is 70 percent as of January 28, 2013, and 90 percent as of February 24, 2014, which includes PTSD rated at 50 percent. Accordingly, the combined ratings criteria of 38 C.F.R. § 4.16(a) for TDIU eligibility have been met for the rating period from January 28, 2013. T Board finds that the evidence is at least in equipoise on the question of whether the service-connected disabilities preclude the Veteran from maintaining substantially gainful employment. There are a variety of potentially relevant factors in order to determine whether a veteran can secure (obtain) and follow (maintain) a substantially gainful occupation under 38 C.F.R. § 4.16: (1) the veteran’s history, education, skill, and training, (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue, including limitations in lifting, bending, sitting, and other similar activities, and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, including difficulty concerning memory, concentration, ability to adapt to change, ability to handle work place stress, ability to get along with coworkers, and ability to demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Concerning history, education, skill, and training, in this case the Veteran worked in aviation fuel systems while in the Navy. The Veteran had some junior college experience prior to joining the Navy. See September 2020 Employability Evaluation. The Employability Evaluation is an assessment provided by the Veteran that was conducted by a vocational specialist concerning the possibility of unemployability due to the service-connected disabilities. After service separation, the Veteran obtained work in 1971 as a chemist helper/coal washer and over time the position changed to coal inspector, which, in essence, was quality control for the coal company. The Veteran had significant interpersonal difficulties and challenges with a supervisor, the impact of which is discussed further in the section on mental abilities. The Veteran changed companies in 1982. In December 1987, after tripping over a beam, the Veteran went out on short-term disability. The Veteran stopped working in 1987 when he was unable to return in a light duty status. That specific post-service work-related disability cannot factor into the TDIU analysis, as it is not a service-connected disability. That said, the Veteran believed strongly that his relationships with his coworkers and supervisor played a role in his termination as well. The Veteran and his wife briefly operated a gutter cleaning business, which was taken over by their son. The Veteran occasionally assists the son with delivering parts or other similar actions. In short, the Veteran’s history, education, skill, and training is largely within the coal company operations. The Veteran has not worked in a significant period of time, and the likelihood of successfully switching to a desk-type job is minimal. The Veteran does not have transferable office-based skills that would lead to the ability to maintain employment in a desk-type job. Concerning whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue, the evidence is at least in equipoise as to the impact of the Veteran’s physical disabilities preclude maintaining substantially gainful employment. There are a variety of opinions assessing the functional impact of the specific physical disabilities. See November 2014 Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire (stating that diabetic peripheral neuropathy would impair physical labor that may cause injury to the hands or feet but would not impair sedentary employment). A November 2014 Diabetes Disability Benefits Questionnaire stated that the diabetes mellitus type 2 would not impair physical or sedentary employment. The November 2014 Hearing Loss and Tinnitus Disability Benefits Questionnaire stated that the degree of hearing loss should not prevent him from gainful employment with proper use of hearing aids bilaterally and that the tinnitus affects concentration. In a May 2014 Report for Disability Insurance Purposes of Treatment in a Hospital or From an Attending Physician, by Dr. C., the physician writes that the disabilities – to include diabetes mellitus, PTSD, hearing loss, and tinnitus – keep the Veteran from being capable of doing all of the work and keep the Veteran from being capable of doing any other work. The Employability Evaluation also states that there are complications from physical disabilities. The Board has specifically considered the functional limitations caused by each of the service-connected disabilities on the ability to perform work functions. Concerning tinnitus, the Veteran reported experiencing constant worsening ringing in his ears, which exacerbated his irritability and compromised attention. Concerning hearing loss, the Veteran reported difficulty with conversational speech and missing what’s being said when not speaking face to face or when in the presence of loud background noise. The glucose swings related to diabetes mellitus type 2 result in feeling groggy, lightheaded, and dizzy. The peripheral neuropathy of the upper extremities has caused numbness, cramping, and weakness in the arms, hands, and fingers. Repetitive reaching, handling, fingering, grasping, and lifting all further exacerbate symptoms. Numbness can result when driving or writing. The lower extremity peripheral neuropathy causes numbness, tingling, burning, and weakness in the legs, feet, and toes, which impacts balance and gait and limits locomotion. Bending, stopping, and kneeling are extremely difficult and dangerous. The Employability Evaluation specifically objected to the statement that the peripheral neuropathy did not impair the Veteran’s ability to perform sedentary employment. The vocational specialist asserted that the Veteran did not have transferable skills for a desk job and that most sedentary unskilled work requires frequent handling, fingering, reaching, and grasping, which the Veteran would be unable to do because of the upper extremity peripheral neuropathy. The largest area of concern with respect to the Veteran’s unemployability is in the mental capacity to handle employment. Symptoms and social and occupational limitations of PTSD with major depressive disorder that were reported to the vocational specialist included depression with decreased motivation, irritability with severe mood swings, impaired impulse control, low stress tolerance, interpersonal difficulties, low self-esteem with feelings of worthlessness, mistrust of authority figures, suspiciousness, recurrent distressing thoughts, flashbacks, anxiety, social isolation, diminished interest in pleasurable activities, and memory and concentration deficits. The September 2018 VA examination included reports of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, and disturbances of motivation and mood. The symptomatology and social and occupational impairment appear to be similar in the different assessments. The vocational specialist has offered an opinion that the Veteran has had struggles related to the service-connected PTSD since he lost his job at the coal mine in 1987. The Veteran reported during the assessment that he believed his firing was in part due to interpersonal problems related to the PTSD. Regardless of whether that specific incident was due to interpersonal issues, the Veteran had significant interpersonal troubles while working, to include trouble with people he was supervising and trouble with people who were supervising him. The vocational specialist offered the opinion that the Veteran was undoubtedly unemployable by January 2013 due to symptoms from service-connected PTSD. The depression, anxiety, irritability, interpersonal difficulties, flashbacks, impaired attention, chronic fatigue, and disrupted sleep due to symptoms from PTSD pose limitations that are inconsistent with the demands of even sedentary unskilled work. The Veteran would be unable to meet an employer’s expectations of daily pace and productivity and would be unable to interact with others in an appropriate and professional manner, as is expected in all competitive employment. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the combination of mental and physical disabilities, in the context of the Veteran’s education and employment history, render him unable to maintain substantially gainful employment. Accordingly, the criteria for a TDIU from January 28, 2013 have been met. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.