Citation Nr: 21002413 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-40 154 DATE: January 13, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from August 21, 2012 to November 13, 2014 is granted. FINDING OF FACT The Veteran was unable to secure or follow substantially gainful employment due to service-connected disabilities from August 21, 2012 to November 13, 2014. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU are met from August 21, 2012 to November 13, 2014. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from January 1964 to January 1967. This matter is on appeal from an April 2013 rating decision. In December 2019, the Board, in pertinent part, remanded the issue of a TDIU from August 21, 2012 to November 13, 2014 for referral to the VA Director of the Compensation Service for adjudication of entitlement to a TDIU under 38 C.F.R. § 4.16(b). In November 2020, the VA Director of the Compensation Service considered whether a TDIU under 38 C.F.R. § 4.16(b) was warranted, so there was compliance with the prior remand directives. TDIU Legal Criteria Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. It is provided further that the existence or degree of non-service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to above for the service-connected disability or disabilities are met and, in the judgment of the rating agency, such service-connected disabilities render a veteran unemployable. Id. Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. A veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran’s employment history, his or her educational and vocational attainment, as well as his or her particular physical disabilities are to be considered in making a determination on unemployability. For a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant 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. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether a TDIU should be awarded is not a medical issue, 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 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. 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 Analysis The Veteran seeks a TDIU from August 21, 2012 to November 13, 2014. He contends that the service-connected Parkinson’s disease with right lower extremity peripheral neuropathy has rendered him unemployable during the period at issue. The Veteran has reported that he last worked in 2010, has a high school education, and has past relevant work experience as an electrical maintenance coordinator for a nuclear power plant. For the TDIU rating period from August 21, 2012 to November 13, 2014, service connection was in effect for Parkinson’s disease with mild right lower extremity peripheral neuropathy, rated at 30 percent. Because service connection is in effect for one disability rated less than 60 percent during this period, the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a) were not met. This case was previously referred to the Director of the Compensation Service for consideration of whether an award of a TDIU from August 21, 2012 to November 13, 2014 was warranted under 38 C.F.R. § 4.16(b). In August 2017, the Director of Compensation Service effectively reviewed TDIU eligibility under 38 C.F.R. § 4.16(b) for the entire period of TDIU on appeal and determined that the Veteran was not unable to secure and follow any gainful occupation due to service-connected disabilities on the basis that sedentary work was not precluded. After review of all the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the criteria for a TDIU are met for the rating period from August 21, 2012 to November 13, 2014. Throughout the rating period, Parkinson’s disease was manifested by a mildly stooped posture, moderate balance impairment, moderate bradykinesia or slowed motion, mild to moderate upper extremity tremors, complete loss of sense of smell, mild to severe sleep disturbance, incontinence with no pads and no appliance required, mild constipation, fatigue, and mild to severe sexual dysfunction with no evidence of penile deformity. The right lower extremity peripheral neuropathy associated with Parkinson’s disease was manifested by decreased sensation, to include mild to moderate numbness and mild paresthesias and/or dysesthesias, and showed no motor or muscle deficit other than mild muscle rigidity and stiffness. After review of the record and interview and examination of the Veteran, the March 2013 VA examiner opined that Parkinson’s disease impacted the Veteran’s ability to work because the Veteran reportedly had fatigue that limited his ability to work as an electrical maintenance coordinator for a nuclear power plant, which required six twelve-hour shifts with only one day off out of a seven-day period for five to seven weeks every 18 months. The March 2013 VA examiner further opined that the Veteran’s peripheral neuropathy of the right lower extremity would limit the ability to work because it would make the ability to stand more difficult. Because the Veteran has limited education and the past work experience in electrical maintenance likely involved prolonged periods of standing and required at least some physical exertion, the Board finds that the symptoms and functional impairment caused by service-connected Parkinson’s disease with right lower extremity peripheral neuropathy significantly impeded the ability to maintain substantially gainful employment during the TDIU rating period. Resolving reasonable doubt in favor of the Veteran, the Board finds that the service-connected disabilities precluded substantially gainful employment from August 21, 2012 to November 13, 2014; therefore, a TDIU is warranted for the period. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferguson, 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.