Citation Nr: 21065921 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-10 596 DATE: October 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to December 18, 2015 is denied. FINDING OF FACT The Veteran's service-connected acute intermittent porphyria with iron deficiency anemia (AIP) (rated 30 percent); somatization disorder (30 percent); left and right lower extremity peripheral neuropathy (10 percent, each); left knee instability (10 percent); left knee chondromalacia patella (10 percent); and right knee chondromalacia patella (0 percent); are rated 70 percent, combined, prior to December 18, 2015, but are not shown to have been of such nature and severity as to have rendered him unable to secure and maintain substantially gainful employment. CONCLUSION OF LAW The schedular rating requirements for a TDIU rating were met prior to December 18, 2015; however, a TDIU rating prior to that date was not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from April 1972 to August 1980. This matter is before the Board on appeal from an October 2012 Department of Veterans Affairs (VA) rating decision. In November 2018 and June 2021, the matter was remanded for additional development. An August 2021 rating decision granted the Veteran a TDIU rating effective December 18, 2015. Because entitlement to a TDIU rating arose from an October 2010 increased rating claim, and the Veteran contends that he merits a TDIU rating from 2011, the matter of entitlement to a TDIU rating prior to December 18, 2015 remains on appeal. Entitlement to a TDIU rating prior to December 18, 2015 is denied. The Veteran contends that he was unable to maintain substantially gainful employment prior to December 18, 2015 due to his service-connected disabilities, which during the period included: acute intermittent porphyria with iron deficiency anemia (AIP) (rated 30 percent); somatization disorder (30 percent); left and right lower extremity peripheral neuropathy (10 percent, each); left knee instability (10 percent); left knee (10 percent) and right knee (0 percent) chondromalacia patella. The combined 70 percent rating (with the porphyria with anemia and somatization sharing a common etiology, and rated 50 percent combined) meet the 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating. The remaining, and dispositive, question is whether the Veteran's service-connected disabilities rendered him unemployable prior to December 18, 2015. On April 2011 VA mental examination, the Veteran reported that he had been employed as an engineer for 30 years; had been out of work for 6 months with chronic pain the previous year; and had depression and cognitive difficulties that contributed to his being out of work. The examiner opined that the Veteran's cognitive disorder not otherwise specified, depressive disorder, anxiety disorder not otherwise specified, pain disorder associated with idiopathic neuropathy, and breathing-related sleep disorder resulted in occupational and social impairment with reduced reliability and productivity. The Veteran did not contend that he was unemployable due to the effects of a mental disorder. On April 2011 VA examination, the Veteran reported that he was able to perform activities of daily life and work as a systems engineer but had functional limitations with medical problems and physical activity. The evidence reflects that the Veteran's last day of full-time employment was December 12, 2011. On May 2012 VA mental disorders examination, the examiner opined that the Veteran's somatization disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. It was noted that beginning in September 2011 the Veteran went on short-term disability due to pain and attention problems after 30 years with the same company, and in December 2011 was let go along, with 80 percent of the department, as part of a workforce reduction. Social Security Administration (SSA) records include an October 2012 decision granting the Veteran disability benefits beginning in October 2011, due to a primary diagnosis of carpal tunnel of both hands with atrophy and a secondary diagnosis of degenerative disc disease of the thoracic spine. In a November 2012 statement, the Veteran stated that he had chronic muscular and skeletal pain, and neuropathic pain throughout his body, from head to toe, in addition to his other conditions. He contended that these symptoms preclude even light manual labor. On September 2012 VA examination, the Veteran was noted to have intermittent porphyria and neuropathy in his legs. He took an iron supplement for anemia. He reported daily and constant weakness and easy fatigability, lightheadedness with no syncope, shortness of breath, headaches every 3 days with 3 prostrating episodes per month; and dyspnea on mild exertion and sometimes at rest. The examiner opined that the Veteran's porphyria was intermittent, hematological in nature, with mild anemia, and did not impact his ability to work. On December 18, 2015 VA hematologic and lymphatic conditions examination, the Veteran reported symptoms of shortness of breath with exertion and sometimes at rest, weekly headaches lasting from hours to days, neuropathies, and episodes of malaise with flu-like symptoms. He was noted to have recurring infections at least once per year but less than once every 3 months. He reported that his last flare-up was earlier that year, with abdominal and muscle pain, dizziness, headaches, and dark urine, and lasted 3 days. The examiner opined that the Veteran is unable to work during acute attacks of porphyria due to mental confusion and memory problems, which occur 1 to 2 times a year, and last about 3 days. On December 18, 2015 VA peripheral nerve examination, the Veteran reported numbness and pain and irregular temperature sensation on his body. The examiner opined that the Veteran's peripheral neuropathy impacts his ability to work in that he is restricted from working on ladders or elevated platforms due to neuropathy and poor balance. The Veteran submitted a July 2017 statement from his private pain management physician, who stated he was treating the Veteran for peripheral neuropathy of the arms and legs, left shoulder osteoarthritis, and neuropathic pain throughout the torso, which results in chronic severe pain. The physician opined that "this has resulted in a total disability with the [SSA] and he is unable to work." In a November 2019 response to a Request for Employment Information, the Veteran's former employer indicated that he was employed full time from May 1981 to December 12, 2011 as a staff systems engineer. The reason for termination of employment was cited as Layoff. Therefore, the period of time for which the Veteran seeks a TDIU rating is from December 12, 2011, and this is the period on appeal. In his October 2020 application for a TDIU rating, the Veteran stated that AIP prevents him from securing or following any substantially gainful occupation. He asserted that it affected his full-time employment in February 2010, and he last worked full time and became too disabled to work in September 2011. He stated that he was employed full time until December 12, 2011. He reported he has a college education. In June 2021, the matter was remanded for retrospective medical opinions (one pertaining to psychiatric disability, and another pertaining to physical disabilities) to determine the combined functional and occupational impairment caused by the Veteran's service-connected disabilities prior to the July 2017 private physician's statement, regarding the onset of his unemployability. On July 2021 VA mental disorders examination, the Veteran reported that he retired in 2012, but his wife reported that he quit working in 2011 due to being placed on short-term disability. He reported that around 2011, he was having a lot of "sleeping issues and insomnia" due to anxiety and worrying that kept him from falling asleep. He related that his neuropathy affected his legs and he was having problems with concentration, attention, multitasking and episodic memory that were affecting his work performance; he also reported being irritable and having low energy at work. The examiner opined that, with respect to the occupational impairment caused by the combination of the Veteran's service-connected disabilities prior to 2017, the chronic pain, insomnia, anxiety and depressive symptoms were likely to interfere with his optimal functioning in an occupational environment. The examiner opined that, as such, problems with carrying out tasks on time, multitasking, retaining new information, organizing, and planning ahead of tasks would be expected; periods of irritability and poor frustration tolerance, caused by the combination of service-connected disabilities prior to 2017, would also interfere with optimal functioning in an occupational environment, including sedentary work. The examiner opined that the Veteran would likely have experienced problems getting along with co-workers and interacting satisfactorily with customers; that physical symptoms (mainly chronic pain) exacerbate mental health symptoms and the other way around in synergistic ways; and that it is not possible to retrospectively determine the Veteran's ability to perform certain occupational tasks prior to 2017 without resort to speculation; to do so would require objective evidence and having the veteran evaluated back in 2017 with the specific purpose of determining his level of occupational impairment. On July 2021 VA peripheral nerves conditions examination, the examiner opined that the [current] degree of the Veteran's peripheral neuropathy limits all ability to concentrate on cognitive tasks due to pain and paresthesias, and to stand, walk, climb stairs, squat, and kneel in performing work tasks. The examiner opined that prior to 2017, the Veteran was able to stand, walk, and control his pain adequately to perform tasks in a work environment daily except during flares, which were estimated by the Veteran to occur only once to twice per year. The examiner's retrospective opinion was based on a review of the record, the Veteran's history, and current exam comparing to records from 2015 to 2017. The examiner's review determined that the Veteran was able to walk, sit, and cognitively function prior to 2017, and therefore was potentially capable of some form of gainful employment. Based on this evidence, an August 2021 rating decision granted the Veteran a TDIU rating effective December 18, 2015. As noted above, the period from December 18, 2015 is not before the Board. The Veteran was unemployed [from December 12, 2011] during some of the period for consideration. Regardless, a period of unemployment does not of itself establish that service-connected disabilities rendered him unemployable. The evidence of record does not support that prior to December 18, 2015 his AIP, somatization disorder, bilateral lower extremity peripheral neuropathy, and bilateral knee disabilities were of such nature and severity as to prevent him from participating in regular substantially gainful employment. The Board acknowledges that, as shown by medical records and treatment providers' and examiners' opinions, the service-connected disabilities would have prevented the Veteran from participating in certain types of employment (those requiring significant or prolonged walking, lifting, extensive physical activity, or significant interaction with others). However, nothing in the record suggests that the service-connected disabilities alone (not considering factors such as the aging process or nonservice-connected disabilities) would have precluded him participation in regular substantially gainful employment on a regular, full-time basis in the types of occupations that are not impacted by such limitations (such as his staff systems engineer job). Notably, no VA examiner has opined that service-connected disabilities precluded employment or rendered him unemployable prior to December 18, 2015; indeed, the examiners opined that the Veteran was able to perform physical or sedentary (which the Board interprets as mostly performed seated, but allowing for short standing and walking) tasks during that period. The Board has considered the Court's guidance in Bowling v. Principi, 15 Vet. App. 1 (2001). However, the facts here are distinguishable from Bowling. In Bowling, the Court noted there was a plausible basis in the record for a conclusion that the veteran was unable to secure and follow a substantially gainful occupation due to a service-connected disability. Here, unlike Bowling, the Veteran has not submitted supporting evidence of unemployability due to service-connected disability at any time prior to December 18, 2015. The overall record does not show or suggest that prior to December 18, 2015 due to his service-connected disabilities, alone, the Veteran was rendered unable to obtain and maintain substantially gainful employment consistent with his education and work experience. The Board has considered his statements in support of this claim, and acknowledges that due to his service-connected disabilities he clearly had some work limitations, and that his physical functional impairment limited the scope of his occupational opportunities. The Board has no reason to question those accounts. However, many types of substantially gainful (more than marginal) regular employment (including full-time employment in the type of work he previously participated in, as a systems engineer) remained within his capabilities prior to December 18, 2015 despite limitations from his service-connected disabilities. Unemployability due to service-connected AIP, somatization disorder, bilateral lower extremity peripheral neuropathy, and bilateral knee disabilities prior to December 18, 2015 is not shown. The preponderance of the evidence is against this claim. Accordingly, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.