Citation Nr: 21063930 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 13-14 148 DATE: October 18, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from April 13, 2010 is granted. FINDINGS OF FACT 1. As of April 13, 2010, the Veteran completed high school and had not worked since 2007. He had experience as a railroad conductor. 2. As of April 13, 2010, the Veteran's service-connected disabilities included end-stage renal disease, rated as 60 percent disabling, right lower extremity peripheral neuropathy of the sciatic nerve, rated as 40 percent disabling, diabetes mellitus, rated as 20 percent disabling, right lower extremity peripheral vascular disease, rated as 20 percent disabling, left lower extremity peripheral vascular disease, rated as 20 percent disabling, right eye status post cataract extraction, rated as 10 percent disabling, right lower extremity peripheral neuropathy of the femoral nerve, rated as 10 percent disabling, right upper extremity peripheral neuropathy, rated as 10 percent disabling, left upper extremity peripheral neuropathy, rated as 10 percent disabling, and noncompensable left ear hearing loss. 3. As of April 13, 2010, the Veteran's service-connected disabilities precluded him from maintaining substantially gainful employment consistent with his education and work history. CONCLUSION OF LAW The criteria for the assignment of a TDIU have been met from April 13, 2010. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1968 to August 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO granted service connection for right lower extremity peripheral neuropathy and assigned an initial disability rating of 10 percent, effective from May 4, 2011 and denied entitlement to a TDIU. In June 2013, VA received the Veteran's Notice of Disagreement (NOD). In October 2016, the RO issued a Statement of the Case (SOC). In October 2016, VA received the Veteran's VA Form 9 appeal to the Board. In October 2017, the Board remanded the case for further development and adjudicative action. Subsequently, in an August 2020 decision, the Board granted entitlement to a TDIU and remanded the issue of increased rating for right lower extremity peripheral neuropathy for further development and adjudication. In a September 2020 rating decision, the RO implemented Board's grant of a TDIU and assigned an effective date of January 21, 2011. Finally, in a June 2021 decision, the Board assumed jurisdiction over the issue of an earlier effective date for service connection, or in other words for assignment of a separate disability rating, for right lower extremity peripheral neuropathy. In this regard, the Board concluded that a correspondence received by VA on April 13, 2010 constituted an informal claim for benefits. Furthermore, the Board assigned a 40 percent rating for right lower extremity peripheral neuropathy of the sciatic nerve and a 10 percent rating for right lower extremity peripheral neuropathy of the femoral nerve. However, as relates to the present decision, the June 2021 Board decision inferred a claim for a TDIU from April 13, 2010 as part and parcel of the increased rating claim on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the claim for further development and adjudication. TDIU 1. Entitlement to a TDIU due to service-connected disabilities. As noted in the introduction, the Veteran is currently in receipt of a TDIU from January 21, 2011. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 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, 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In Faust v. West, 13 Vet. App. 342 (2000), the 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 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, 331-32 (1991). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016); and, occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran's: work history, education, skill, and training; the Veteran's physical ability to perform work activities; and the Veteran's mental ability to perform work activities required by the Veteran's occupation. In determining unemployability, consideration should be given to the veteran's prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Faust, 13 Vet. App. 342 (2000). Entitlement to a TDIU does not require 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). All reasonable doubt as to any material matter, including the degree of disability, will be resolved in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 4.3. As of April 13, 2010, the Veteran's service-connected disabilities included end-stage renal disease, rated as 60 percent disabling, right lower extremity peripheral neuropathy of the sciatic nerve, rated as 40 percent disabling, diabetes mellitus, rated as 20 percent disabling, right lower extremity peripheral vascular disease, rated as 20 percent disabling, left lower extremity peripheral vascular disease, rated as 20 percent disabling, right eye status post cataract extraction, rated as 10 percent disabling, right lower extremity peripheral neuropathy of the femoral nerve, rated as 10 percent disabling, right upper extremity peripheral neuropathy, rated as 10 percent disabling, left upper extremity peripheral neuropathy, rated as 10 percent disabling, and noncompensable left ear hearing loss. These disabilities combine to a rating of 100 percent. Accordingly, the only remaining question is whether the Veteran's service-connected disabilities preclude substantially gainful employment consistent with his education and work history April 13, 2010. The Board concludes that the Veteran has been unable to maintain substantially gainful employment due to multiple service-connected disabilities from April 13, 2010. The Veteran has a high school education and was employed as a conductor for a railroad from 1972 to 2007. Regarding the Veteran's peripheral neuropathy and vascular disease, a July 2010 VA examination reflects that the Veteran experienced pain in his legs after walking related to his bilateral lower extremity peripheral vascular disease and could walk for no more than half of a mile. In addition, the Veteran experienced symptoms of numbness and tingling in his hands due to bilateral upper extremity peripheral neuropathy. The examiner noted that the Veteran experienced claudication after "minimal" distances. Furthermore, a May 2011 VA examination indicates that the Veteran also experienced swelling in his lower extremities. Regarding the diabetes mellitus, the July 2010 VA examiner indicated that the Veteran experienced "increased fatigue" due to diabetes mellitus. Additionally, the examiner found that the Veteran was restricted from engaging in strenuous activity due to the possibility of hypoglycemic episodes. Functional impairments identified by the Veteran during the July 2010 examination included difficulty walking up stairs and working in the yard. The May 2011 examiner noted that there were "apparent" impairments to repetitive lifting, bending, and routine work. Moreover, there was impairment to higher-level locomotion for routine work-related tasks. Notably, the July 2010 examiner concluded that the effects of the service-connected disabilities on the Veteran's usual occupation were "significant" and that the Veteran had retired early from his employment as a railroad conductor due to his health problems. After considering all of the evidence of record, including the Veteran's statements and the medical evidence, the preponderance of the evidence shows that the Veteran's service-connected disabilities did preclude performance of substantially gainful employment from April 13, 2010. The 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, 77F.3d 1350, 1354 (Fed. Cir. 2013). Specifically, the July 2010 and May 2011 VA examination reports show diminished employability prospects due to the Veteran's service-connected disabilities. In this regard, the Veteran's physical impairments due to service-connected disabilities included limitations to walking, lifting, bending, climbing stairs, and engaging in strenuous and routine activities. As relates to his history of employment, the Veteran would be expected to engage in the above activities on a daily basis while working as a train conductor. Although the May 2011 examiner noted that the Veteran may have had the residual capacity to perform sedentary work. However, as of April 13, 2010, the Veteran's employment history and educational background were not consistent with sedentary employment. Thus, given the lay and medical evidence indicating the Veteran's functional limitations due to his service-connected disabilities, and in light of his work experience, training, and education, the preponderance of the evidence shows that the Veteran was not able to maintain substantially gainful employment as of April 13, 2010. Accordingly, the assignment of a TDIU is warranted from April 13, 2010. See Geib, 77 F.3d at 1354. Nonetheless, given that the grant of TDIU by this decision is based on multiple service-connected disabilities, an inferred claim for special monthly compensation (SMC) is not reasonably raised. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (holding that a TDIU based on a single-service connected disabilities may support the award of SMC at the statutory housebound rate under 38 U.S.C. § 1114(s)). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.