Citation Nr: 21065504 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-51 835 DATE: October 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted beginning on March 31, 2017. FINDING OF FACT It is just as likely as not the Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for his entitlement to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1969 to March 1971. This appeal to the Board of Veterans' Appeals (Board) is from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2020 decision, the Board denied this claim, and in response the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In an Order granting a June 2021 Joint Motion for Remand (JMR), the CAVC vacated the Board's decision denying this claim and remanded it back to the Board for readjudication in compliance with agreement in the JMR. More specifically, the Board has been directed to address the Veteran's particular ability to secure or follow employment that would be substantially gainful versus just marginal given his work and educational history. The Board also has been directed to address whether the combined functional impact of his service-connected disabilities preclude him from engaging in substantially gainful employment. The Veteran's newly appointed attorney has requested a 90-day stay to develop more evidence in support of this claim. However, as will be discussed, there already is sufficient evidence of record to decide this claim favorably. And, since the decision is a full grant of the benefit sought on appeal, there is no prejudice to the Veteran in going ahead and deciding the appeal. Entitlement to a TDIU is granted. The Veteran contends that his service-connected disabilities prevent him from securing or following any substantially gainful occupation. Specifically, he contends that he is unemployable due to his Type II Diabetes Mellitus and its attendant complications that include bilateral (so left and right) upper and lower extremity peripheral neuropathy. He has indicated that he worked full-time as an electrician from August 1988 to November 2005 and earned as much as $5,000.00 per month. But, after reviewing the lay and medical evidence of record, and when considering his work and educational history, the Board finds that the evidence supports granting a TDIU since it is as likely as not that he can no longer work in that type job or similar capacity and does not have the transferable skills for other employment that could be considered substantially gainful. VA regulations allow for the assignment of a TDIU if a veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, and the veteran has certain combinations of ratings for the service-connected disabilities. If there is only one such disability, it must be ratable at 60 percent or more. If there are two or more disabilities, there must 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. § 4.16(a). However, for the purpose of this calculation, disabilities resulting from common etiology or single accident or affecting both upper extremities or both lower extremities or a single bodily system are considered as one, collective disability. Id. The issue in a TDIU case is whether the Veteran's service-connected disabilities, alone, preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App.356 (1991). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22Vet. App.447, 452 (2009). That said, the mere fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App.361, 363 (1993). On March 14, 2019, so during the pendency of this appeal, the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, 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. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. The Veteran is service connected for Type II Diabetes Mellitus with erectile dysfunction and for the associated complication of peripheral neuropathy of his right and left upper extremities, each rated as 20-percent disabling; also, for bilateral tinnitus and for peripheral neuropathy of the sciatic and femoral nerves of his right and left lower extremities; each rated as 10-percent disabling; and for left ear hearing loss, rated as 0-percent disabling (so noncompensable). The combined rating is 70 percent and has been for the entirety of the review period under consideration. See 38 C.F.R. § 4.25. Accordingly, he has sufficient ratings for his service-connected disabilities to meet the minimum schedular requirements for a TDIU when considering that his Type II Diabetes Mellitus and the several associated complications derive from common etiology. See 38 C.F.R. § 4.16(a). Moreover, as will be discussed, the evidence indicates his service-connected disabilities, when also considering his level of education, training and prior work experience, render him incapable of obtaining or maintaining substantially gainful employment. Thus, this claim must be granted. Turning to the merits of this claim, the report of a March 2008 VA audiological examination indicates that, after his discharge from the military, the Veteran worked at a service station for 2 years then became a truck mechanic for 25 years. He also as already mentioned reports working full-time as an electrician from August 1988 to November 2005 and earning as much as $5,000.00 per month. As of 2008, he was retired and serving as a pastor of a church part-time. He also has indicated having a high school-level education, but with no college or additional training. In an August 2014 VA Diabetes Mellitus Disability Benefits Questionnaire (DBQ), the examiner opined that the Veteran's diabetes mellitus, erectile dysfunction, and diabetic peripheral neuropathy did not impact his ability to work. However, more recently, in April 2017, in another VA Diabetes Mellitus DBQ, the examiner opined that the Veteran's diabetes mellitus and peripheral neuropathy did impact his employment in that fluctuations in his blood sugar level caused hypoglycemia and some episodes of shakiness and weakness, which together made it difficult for him to perform laborious activities. The examiner also noted that, because of the peripheral neuropathy, the Veteran had difficulty with prolonged standing and walking. As well, the examiner stated that the Veteran was retired, but that his diabetic peripheral neuropathy was manifested by moderate burning and tingling in his lower feet that, to reiterate, caused difficulty with prolonged standing and walking. That April 2017 examiner expounded by also noting the Veteran experienced mild paresthesias and numbness in his lower extremities. His muscle strength and deep tendon reflexes were considered normal, but his light touch sensation was decreased in his lower extremities. He was found to have moderate incomplete paralysis of the affected nerves (sciatic and femoral) in his lower extremities Additionally, in October 2017 during his VA diabetic sensory-motor peripheral neuropathy DBQ examination, the Veteran was also found to have some difficulty with fine coordination with his hands and a loss of sensation because of the diabetic peripheral neuropathy also affecting his upper extremities. The Board also takes notice of earlier VA examinations from August 2014 that, while outside the review period, nonetheless confirm statements and observations made by the VA examiners who more recently evaluated the Veteran in 2017. For example, in August 2014, an examiner observed the Veteran experienced mild, constant pain in his upper extremities and decreased sensation in his hands. This examiner also noted mild, incomplete paralysis of the Veteran's upper and lower extremities. That earlier, August 2014 VA examination especially tends to corroborate the October 2017 examiner's observations that the Veteran had difficulty with "fine coordination with his hands" and, thus, affords it some probative weight to the extent it confirms his reported and observed symptoms. As mentioned, the Veteran worked as a mechanic and electrician for over 25 years and has obtained no higher than a high school level diploma. While March 2008 VA treatment records note that he appears to have spent time as a part-time pastor for his church, there is no indication that he was paid for this position or that it could be considered more than marginal employment particularly given his prior work history and educational background. Moreover, the same treatment note also indicates he was retired, thus, inferring the position as a part-time pastor is likely not to be considered substantially gainful employment. It is worth repeating that, to receive a TDIU, the service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule 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. So, above and beyond this, the record must reflect some factor that takes a particular case outside the norm for a claim for individual unemployability benefits to prevail. Here, recognizing this, the Board acknowledges the several VA examinations in 2017 ultimately concluding the Veteran's individual service-connected disabilities did not prevent him from working in a substantially gainful capacity. However, as alluded to by the CAVC in since granting the June 2021 JMR, those individual VA examinations did not consider the combined functional impact of the Veteran's service-connected disabilities. In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit Court held that, when a Veteran is claiming entitlement to a TDIU based upon the combined effects of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." 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). 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 adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the VA 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). Here, the Board finds that the Veteran's service-connected disabilities particularly his diabetes and associated diabetic peripheral neuropathy of his upper and lower extremities, especially in combination, prevent him from substantially gainful employment. He has work experience as a car mechanic and electrician, which both require a substantial degree of physical exertion that likely would involve long periods of standing and walking. These professions also likely require fine motor skills. Indeed, the lack of sensation and difficulty with fine motor skills, as observed during his October 2017 VA examination, would pose a significant challenge in a field relying heavily on manual labor and fine motor skills. In fact, the October 2017 VA examiner confirmed as much specifically indicating this loss of sensation would make it difficult to detect things such as burns or strikes to the Veteran's hands, which the Board infers to be a significant safety risk. Therefore, all things considered, the Board finds the Veteran's service-connected disabilities, when combined, are sufficiently severe as to render him unable to secure or maintain any form of substantially gainful employment. Accordingly, a TDIU is warranted, subject to the statutes and regulations governing the payment of retroactive compensation. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.