Citation Nr: 21061481 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 20-17 934 DATE: October 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT During the period on appeal, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1963 to October 1983. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied entitlement to a TDIU. This matter was previously before the Board in July 2020. At that time, the Board, inter alia, remanded the Veteran's service connection claim for a psychiatric disorder, as well as the inextricably intertwined TDIU claim, for further evidentiary development, to include obtaining VA treatment records and a VA examination. This matter was most recently before the Board in May 2021. At that time, the Board again remanded the Veteran's service connection claim for a psychiatric disorder, as well as the inextricably intertwined TDIU claim, for further evidentiary development, to include an addendum medical opinion. While the matter was in remand status, in a July 2021 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent rating, effective April 16, 2018. That award constitutes a full grant of the disability sought, and that appeal has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Entitlement to a TDIU due to service-connected disabilities is granted. VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). For the above 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 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection is currently in effect for neurogenic bladder associated with diabetes mellitus with erectile dysfunction, rated as 10 percent disabling from April 4, 2006, and as 40 percent disabling from April 16, 2018; PTSD, rated as 30 percent disabling from April 16, 2018; diabetes mellitus with erectile dysfunction, rated as 10 percent disabling from April 4, 2006, and as 20 percent disabling from November 23, 2009; peripheral neuropathy of the left upper extremity associated with diabetes mellitus with erectile dysfunction, rated as 20 percent disabling from January 14, 2016; peripheral neuropathy of the right upper extremity associated with diabetes mellitus with erectile dysfunction, rated as 20 percent disabling from January 14, 2016; peripheral neuropathy of the left lower extremity associated with diabetes mellitus with erectile dysfunction, rated as 10 percent disabling from April 4, 2006; peripheral neuropathy of the right lower extremity associated with diabetes mellitus with erectile dysfunction, rated as 10 percent disabling from April 4, 2006; tinnitus, rated as 10 percent disabling from April 22, 2019; residuals of appendectomy (scar), rated as 0 percent disabling from April 4, 2006; tinea pedis and tinea cruris (claimed as rash and jungle rot of feet), rated as 0 percent disabling from April 4, 2006; and peripheral arterial disease of the right lower extremity associated with diabetes mellitus with erectile dysfunction, rated as 20 percent disabling from November 23, 2009, and as 0 percent disabling from April 27, 2016. The Veteran's combined disability rating is 80 percent from April 16, 2018 and 90 percent from April 22, 2019. Thus, the Veteran satisfies the percentage requirements set forth in section 4.16(a) for consideration of a TDIU. Because the Veteran satisfies the percentage requirements set forth in section 4.16(a) for consideration of TDIU, the next question for consideration is whether his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. The Veteran has completed 3 years of college. He reports that he worked until 2013 when he became too disabled to work. The Veteran reports that he stopped working due to his diabetes mellitus, type II, peripheral neuropathy, neurogenic bladder, and PTSD. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Available medical evidence, including VA examination reports, demonstrate limitations caused by symptoms associated with the Veteran's service-connected disabilities, notably urinary incontinence, pain, numbness, tingling, burning, anxiety, depression, chronic sleep impairment, and hallucinations. The Veteran was afforded a VA examination for urinary tract conditions in July 2018. The examiner noted a 2013 diagnosis of urinary incontinence. The Veteran reported that his condition began spontaneously and had worsened. The examiner noted that the Veteran's disability required absorbent material which must be changed 2 to 4 times per day. It was noted that the Veteran voided during the day every 1 to 2 hours and awakened at night to void 3 to 4 times. The examiner determined that the Veteran's urinary disability did not impact his ability to perform physical or sedentary activities of employment. The Veteran was afforded a VA examination for diabetes mellitus, type II in October 2018. The examiner noted that the Veteran's diabetes was controlled by a prescribed oral hypoglycemic agent and that the Veteran experienced peripheral neuropathy as a complication of his diabetes. The examiner determined that the Veteran's diabetes did not impact his ability to work. The Veteran was also afforded a VA examination for peripheral neuropathy in October 2018. The examiner noted a diagnosis of bilateral upper and lower extremity diabetic peripheral neuropathy. The Veteran reported constant numbness, tingling, and a burning sensation in his feet. The examiner determined that the Veteran's peripheral neuropathy impacted his ability to work. The examiner noted that the Veteran was most likely to have difficulty standing and walking for prolonged periods of time due to his peripheral neuropathy and was therefore limited to sedentary activities of employment. A November 2020 VA treatment record noted the Veteran's reports that he preferred to isolate and stay to himself. The Veteran also reported violent thoughts sometimes when he was angry. He reported seeing visions at night, like someone was present. See November 2020 Mental Health Triage Note. In a February 2021 VA examination for PTSD, the Veteran reported that he worked for auto parts retailers from 1983 until 2016. He reported that he worked his way up from part-time retail sales to the store manager. The Veteran's active problem list noted hand pain. See March 2021 Active Problems. A May 2021 VA treatment record noted the Veteran's reports that he sometimes felt angry about nothing and that he did not like to deal with people or arguments. He reported that he did not like watching killing movies. The Veteran reported night and daymares, as well as broken sleep with difficulty getting back to sleep. The Veteran reported seeing "stuff, things that are not really there, figures walk by." It was noted that due to the risk of worsening diabetes and lipids, antipsychotic medications would not be started. However, it was also noted that low dose antipsychotics for the Veteran's hallucinations would be considered in the future if need be. See May 2021 Mental Health Note. The Veteran was afforded a VA examination for PTSD in July 2021. The Veteran reported variations in his moods, to include depression and anxiety. He reported avoiding people and becoming irritated sometimes. The Veteran reported anxious reactions to loud noises and smells that reminded him of death in Vietnam, including the deaths of his brother, classmates, and friends. He reported weekly nightmares about combat. The Veteran's symptoms were noted as follows: depressed mood, anxiety, and chronic sleep impairment. The examiner determined that the Veteran's PTSD did not impact his ability to work. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). After considering the evidence of record, the Board disagrees with the conclusions of the July 2018, October 2018, and July 2021 VA examiners that the Veteran's service-connected disabilities did not render him unemployable. (Continued on the next page) More specifically, the Board has considered the Veteran's urinary incontinence, pain, numbness, tingling, burning, anxiety, depression, chronic sleep impairment, social isolation, and hallucinations. Based on the foregoing, and in light of his educational and occupational history, the Board finds that the combined effects of the Veteran's service-connected physical and mental disabilities rendered him incapable of substantial gainful employment, to include sedentary employment. The clinical records reflect physical limitations caused by his service-connected disabilities. Although these physical disabilities do not appear to preclude more sedentary forms of employment, the effects of his service-connected psychiatric disability, when combined with his psychiatric symptoms, at least as likely as not preclude him from performing the physical and mental acts necessary to obtain and maintain substantially gainful employment. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in equipoise as to whether the combined effects of the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of TDIU. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.