Citation Nr: 21065178 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 09-36 093 DATE: October 25, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT For the entire period on appeal, the Veteran has met the threshold schedular rating requirement for a TDIU and has been unable to secure and follow substantially gainful employment, consistent with his education and occupational background, because of service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102; 4.3, 4.16. INTRODUCTION The Veteran served honorably on active duty in the United States Army during the Peacetime and Vietnam Era, from January 1963 to November 1965, and January 1966 to December 1968. Also, the Veteran served on active duty from December 1968 to August 1971 and discharged under conditions other than honorable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing conducted in February 2011. A transcript of the hearing is of record. When this matter came before the Board most recently in May 2021, it was remanded for additional development. The additional development has been completed and the matter returns to the Board for further appellate review. Finally, 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). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to a TDIU is granted. The Veteran contends he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. 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 (i.e., a TDIU rating). 38 C.F.R. § 4.16. A TDIU rating is appropriate "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(a)(1), 4.15. The phrase "unable to secure and follow a substantially gainful occupation" has two components: one economic and one non-economic. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply 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. Id.; see 38 C.F.R. § 4.16(a). As for the non-economic component, "the ultimate inquiry is instead on the [Veteran's] ability to secure or follow that type of employment." See Ray, 31 Vet. App. at 73. In determining whether a TDIU rating is warranted, consideration may be given to a Veteran's history, education, skill, and training, but not his age or to any impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. Additionally, a determination is required regarding whether the Veteran has the physical ability, both exertional and non-exertional, to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation(s) at issue. See Ray, 31 Vet. App. at 73. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. A determination is also required as to whether the Veteran has the mental ability to perform the activities required by the occupation(s) at issue. Id. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with co-workers, and demonstrate reliability and productivity. Id. 38 C.F.R. § 4.16(a) addresses schedular TDIU, which applies where a Veteran has a single disability rated at 60 percent or more, or two or more disabilities rated collectively at 70 percent or more where one of them is rated at least 40 percent or more. Id., at 63. In this matter, the Veteran first met the schedular rating threshold for a TDIU effective October 22, 2007, with a combined service-connected disability rating of 80 percent. At the time, his service-connected disabilities included post-traumatic stress disorder (PTSD) rated 70 percent effective October 22, 2007, and diabetes mellitus, type II (DM-II) with erectile dysfunction (ED) rated 20 percent effective January 17, 2006. Subsequently, the Veteran was granted service connection for bilateral hearing loss rated 10 percent and post-operative right eye pseudophakia and pre-operative left eye cataract rated non-compensable effective November 29, 2007. The Veteran was thereafter granted service connection for residuals of a transient ischemic attack (TIA) associated with DM-II rated 10 percent effective August 8, 2017, as well as bilateral lower extremity peripheral neuropathy associated with DM-II rated 10 percent each and an increased rating of 10 percent for his service-connected conditions of the eyes effective May 10, 2018. As such, the Veteran's current combined disability rating is 90 percent effective May 10, 2018, and he has met the schedular rating threshold for entitlement to a TDIU throughout the entire period on appeal. Pursuant to the Board's May 2021 remand directives, the Veteran completed and returned a Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) in June 2021. According to the Veteran, his disabilities affected his full-time employment as an equipment operator in September 2001, and he last worked full-time in 2001. The Veteran also provided income tax documents showing receipt of employment pension and Social Security Administration (SSA) benefits for the years 2015 through 2019. His former employer submitted employment information indicating the Veteran last worked as an equipment operator on May 31, 2000. While the Board observes VA treatment and examination records variously refer to the Veteran as either not working, working part-time, or retired, when viewed together with the other evidence of record including the Veteran's testimony (i.e., "I'll drive a truck ... twice a week"), and resolving all reasonable doubt in favor of the Veteran, the Board finds he has not secured and followed a substantially gainful occupation during the period on appeal. Thus, the issue is whether the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment. For the reasons set forth below, the Board finds they do. In April 2018, a treating VA medical provider reported that the Veteran's DM-II "has progressed to the point that he now requires multiple daily insulin injections in addition to his oral medications." The Veteran underwent a VA examination in June 2018 regarding his service-connected conditions of the eyes. According to the VA examiner, the Veteran's eye conditions impact his ability to work due to visual field defects and scotoma which affect his peripheral vision. A VA examination dated June 2018 related to the Veteran's service-connected bilateral lower extremity peripheral neuropathy notes that, "[t]he Veteran's bilateral lower extremity diabetic peripheral neuropathy precludes an occupation requiring extensive weightbearing." According to the VA examiner, "[r]elative to this condition alone, given appropriate accommodations including frequent breaks as necessary, however, he may nonetheless be reasonably expected to function otherwise in a sedentary capacity." In an October 2018 Board decision, the Veteran's rating for service-connected PTSD was increased to 70 percent based upon occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran's symptoms included sleep disturbance, anger, irritability, hypervigilance, flashbacks, self-isolation, poor concentration, and forgetfulness. The Board has reviewed the Veteran's medical treatment records, including VA treatment records covering the period on appeal. For example, in January 2008, VA treatment records indicate the Veteran endorsed fatigue due to poor sleep and had requested modification of his part-time work duties. According to the treatment record, the Veteran "drives at night because of anger/irritability" and "works alone and avoids conflict at all costs." The treating provider noted the Veteran "appears to minimize how PTSD symptoms effects [sic] employment." In November 2008, VA treatment records indicate the Veteran's "anger/irritability increase with driving truck" and that he gets lost "when driving familiar territories." The Veteran reported having to further reduce his part-time work schedule "due to limitations on job" and, in November 2009, he endorsed "poor sleep and fatigue when working just a few hours per week." The evidence of record reflects the Veteran passed the General Educational Development (GED) test and possesses no additional education or training other than "medical training" in the military. Additionally, the evidence indicates the Veteran worked as an equipment operator and truck driver. Based upon the foregoing, the Board finds the preponderance of the most probative evidence of record establishes the Veteran has been precluded from securing and following a substantially gainful occupation due solely to his combined service-connected disabilities. More specifically, lay and medical evidence of record indicates the Veteran satisfies both the economic and non-economic components for entitlement to a TDIU, as he is unable to perform the exertional and non-exertional demands of competitive full-time employment (i.e., eight-hour workdays with normal breaks) consistent with his education and occupational background. See Ray, 31 Vet. App. at 73. Accordingly, entitlement to a TDIU for the entire period on appeal is granted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, 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.