Citation Nr: 21004853 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 12-23 118 DATE: January 28, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) from March 29, 2012 to June 19, 2013 is granted. Entitlement to a TDIU prior to March 29, 2012, is denied. FINDINGS OF FACT 1. Effective March 29, 2012, with the grant of service connection for diabetes and pathology in all extremities, it is as likely as not that his service connected disabilities rendered him unable to follow substantially gainful employment 2. Prior to March 2012, service connection was granted for coronary artery disease rated 30 percent disabling. Diabetes was service connected at 20 percent disabling as of March 21, 2012. He did not meet the schedular criteria for TDIU prior to March 29, 2019, and it is not shown that the disabilities then service connected precluded gainful employment. He reportedly last worked as a store owner in August 2011. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for a TDIU from March 29, 2012 to June 19, 2013 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2019). 2. The criteria for a TDIU prior to March 29, 2012 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1968 to October 1969. The Board most recently remanded this issue in August 2019 for further development. The appeal has since been returned to the Board for further appellate action. Entitlement to TDIU prior to June 19, 2013. In general, if a Veteran’s schedular evaluation is less than 100 percent, a TDIU rating may be assigned if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Veteran must meet either objective (38 C.F.R. § 4.16(a)) or subjective criteria (38 C.F.R. § 4.16(b)). The objective criteria stipulate that total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities; or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system (e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); multiple injuries incurred inaction; or multiple disabilities incurred as a prisoner of war. Prior employment or unemployment status is immaterial if the disabilities render the Veteran unemployable. 38 C.F.R. §§ 3.340, 3.341, 3.343, and 4.16. There are also provisions under 38 C.F.R. § 4.16(b) for establishing TDIU on an extraschedular basis. The Board cannot do that in the first instance. Rather, if the evidence warrants, the matter is referred to the Director of the Compensation Service for initial review. For reasons herein explained, the Board has not referred the period prior to March 29, 2012, to the Director. Analysis Review of the record reveals that as of March 2012, service connection was granted for diabetes, and effective March 29, 2012, that grant included peripheral neuropathy of all extremities. Combined with the rating for coronary artery disease, as of the date the schedular criteria for TDIU were met. Prior to that date a rating of 30 percent was in effect for coronary artery disease, with diabetes service connected as of March 21, 2012. Thus the Veteran did not meet the schedular criteria for TDIU prior to March 29, 2012. He reportedly last worked as a store owner in August 2011. In this case, service-connection is in effect for coronary artery disease with a rating of 100 percent since June 19, 2013, and with assignment of Special Monthly Compensation (SMC) at the statutory housebound rate since June 19, 2013. Prior to that, a 70 percent combined rating was assigned since March 29, 2012, a 40 percent rating was assigned since March 21, 2012, and a 30 percent rating was assigned since May 26, 2010. Review of the Veteran’s files shows that prior to March 29, 2012 the Veteran did not meet the schedular criteria for a grant of individual unemployability. The VA examiner at the time stated that the Veteran’s service-connected coronary artery disease (CAD) post-stent placements and diabetes alone did not impact the Veteran’s ability to secure and maintain substantial and gainful employment in sedentary-desk work or physical activities. 38 C.F.R. § 4.16. Initial review of examinations and treatment records from 2012 and 2013 noted that the Veteran’s heart condition did not impact employment, though the Veteran’s diabetic complications impacted his ability to perform repetitive upper and lower body physical movements. There was no indication that the Veteran’s diabetic complications impacted sedentary employment. While the Veteran listed his heart disease as the reason he stopped working, the evidence at the time does not confirm that. There is no clinical evidence that the heart disease was showing manifestations of such significance as to render application of schedular provisions impractical. Nor is it shown that impairment was of such significance that referral to the Director of the Compensation Service was required. TDIU prior to March 29, 2012, is not shown. Resolving reasonable doubt in his favor, with the addition of service connection for peripheral neuropathy of the extremities, it is conceded that the Veteran could have had difficulty maintaining gainful employment. He has reported only some high school education, but worked for years apparently, in retail sales. This work would no doubt be significantly impacted by his neuropathy impairments. As such the Board concludes that TDIU can be granted from March 29, 2012, to June 19, 2013. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Omosegbon, Babalakin O. 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.