Citation Nr: 21066263 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 08-36 804 DATE: October 29, 2021 ORDER Subject to the laws and regulations governing the award of VA monetary benefits, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from July 17, 2013, but no earlier, is granted. REMANDED Entitlement to service connection for bilateral hearing loss, including as secondary to service-connected diabetes mellitus type II, is remanded. FINDING OF FACT From July 17, 2013, the Veteran's combined service-connected physical and psychiatric disabilities rendered him unable to obtain or maintain substantially gainful employment consistent with his education, training, and work history. CONCLUSION OF LAW The criteria for a TDIU from July 17, 2013, but no earlier, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1966 to July 1968 and from February 1981 to December 1981. These matters come before the Board of Veterans Appeals (Board) on appeal from January 2008 and March 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Most recently in September 2019, the Board remanded these issues for further evidentiary development. Although regretting the additional delay, the Board finds that remand is again needed before a decision may be rendered on the service connection claim to ensure compliance with the prior remand requests. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). TDIU The Veteran has contended that his service-connected disabilities render him unable to obtain or maintain substantially gainful employment. A claim for TDIU was submitted along with increased ratings claims on July 10, 2007. As such, the Board will consider entitlement to TDIU from that date. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19 (2016); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. As of July 10, 2007, the Veteran's service-connected disabilities included dysthymic disorder with sleep disorder rated 30 percent; diabetes mellitus with hypertension rated 20 percent; left lower extremity neuropathy rated 10 percent; right lower extremity neuropathy rated 10 percent; left upper extremity neuropathy rated 10 percent; and right upper extremity neuropathy rated 10 percent, for a combined rating of 70 percent. As diabetes mellitus and the bilateral upper and lower extremity neuropathy result from a common etiology and combine to 50 percent, the schedular threshold for TDIU is met. As of July 17, 2013, the Veteran's service-connected disabilities included dysthymic disorder with sleep disorder rated 50 percent; diabetes mellitus with hypertension rated 20 percent; left lower extremity neuropathy rated 20 percent; right lower extremity neuropathy rated 20 percent; left upper extremity neuropathy rated 10 percent; and right upper extremity neuropathy rated 10 percent, for a combined rating of 80 percent. The schedular threshold for TDIU continued to be met. In consideration of the "economic component," the Veteran has a bachelor's degree in Sociology and took a college course entitled Pharmacy Technician. During service, he worked as a Stock Control Clerk and Patient Administration Specialist. Post-service, he worked as a teacher in transit safety, teaching adults and students hoping to be drivers. He thereafter worked as a payroll clerk, maintaining payrolls and attendance records. He then began work in a social services department, supervising housekeepers and performing internal controls. He later worked in a home health services program working with the sick and disabled in their homes and coordinating service with public and private agencies. Finally, he again worked in a social services department as a Social Services Technician in an economic assistance program, interviewing claimants, filling out paperwork, and making home visits. Following an incident with a claimant, he received treatment for anxiety and retired in March 1984 due to the resulting psychiatric disability and a back disability. He has been in receipt of Social Security Administration (SSA) disability benefits since January 1984 based on his psychiatric disability. The Veteran subsequently attempted to obtain computer technician training through the VA Vocational Rehabilitation program, noting that although he received disability benefits, he could in fact work. He stated that he had obtained his degree in the wrong area, as he could not engage in the personal interaction necessary for social work. He ended up discontinuing the program due to several health problems including service-connected and nonservice-connected disabilities. In a September 2011 statement, the Veteran described his prior work as a Social Services Technician requiring prolonged sitting and field work to interview claimants. In consideration of the "noneconomic component," the Veteran has undergone multiple VA examinations to determine the functional impact of his service-connected disabilities. Regarding the Veteran's psychiatric disability, a March 2012 VA examiner determined that it did not interfere with occupational and social functioning. In July 2013, it was found that his dysthymic disorder resulted in occupational and social impairment with reduced reliability and productivity. A June 2018 examiner concluded that his psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Regarding the Veteran's diabetes mellitus, December 2007, April 2009, April 2010, and June 2018 VA examiners noted that diabetes mellitus did not have any effect on daily activities or employment. An August 2011 examiner determined that the Veteran's diabetes mellitus with hypertension did not preclude him from obtaining or maintaining gainful employment. Regarding the Veteran's bilateral upper and lower extremity neuropathy, a December 2007 VA examination noted that it had mild to moderate effects on daily activities. An examiner in April 2009 found that the conditions had mild to moderate effects on daily activities and prevented sports. In April 2010, an examiner determined that neuropathy had mild to severe effects on daily activities. An August 2011 examiner concluded that his peripheral neuropathy did not preclude employment because he could do a part-time or more sedentary type of job that did not require standing or sitting for prolonged periods of time or lifting or carrying more than 15 pounds (i.e. desk job). In a July 2012 statement the Veteran reported that he could not sit or walk because of conditions secondary to his diabetes mellitus. A May 2017 letter from a private clinician stated that his bilateral lower extremity neuropathy was severe and extremely painful, precluding a return to work. In June 2018, the Veteran described his duties as a Social Services Technician to include driving and walking in areas with steep hills to conduct in-home visits, interviewing people, and writing reports of the visits. A VA examiner determined that his bilateral upper and lower extremity neuropathy would cause functional limitation or impact his ability to perform those activities. A November 2019 VA examiner concluded that the Veteran's peripheral neuropathy produced loss of dexterity, stamina, and endurance, interfering with his trade of Social Services Technician. In July 2021, a VA examiner stated that the functional limitations related to his peripheral neuropathy were mostly decreased endurance for standing and walking. Employment activities needed to be tailored so he could sit and rest as needed and should not be made to walk long distances without rest periods along the way or during the workday. Activities which required fine motor manipulation of his hands and fingers could require more time to complete since his distal sensation was partially compromised due to peripheral neuropathy. He was able to do manual activities but needed ample time due to his fine motor abilities and his efficiency might be slower. A TDIU from July 17, 2013, is granted. From an economic perspective, the Veteran has the education, skills, work history, and vocational training to perform work in social services, including interviewing claimants, filling out paperwork, coordinating public and private services, and supervising housekeepers; teaching transit safety; and maintaining payroll. From a non-economic perspective, his service-connected disabilities limit the ability engage in prolonged walking, standing, and sitting; fine motor control; and significant personal interaction with coworkers and clients. In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. Here, the Veteran described part of his prior employment in social services as requiring prolonged sitting which was difficult due to his bilateral lower extremity neuropathy. VA examiners have suggested that the Veteran could engage in sedentary work with appropriate breaks and rest periods if the work did not require lifting more than 15 pounds and did not require fine motor dexterity. The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray v. Wilkie, 31 Vet. App. at 58. The evidence suggests that the Veteran could not perform positions requiring prolonged walking, standing, or sitting, likely precluding his prior position of Social Services Technician. Further, he would not be able to perform fine motor work, including grasping and typing, likely precluding administrative "desk job" type duties. The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray v. Wilkie, 31 Vet. App. at 58. The Veteran himself has described difficulty interacting with previous clients and left his last position due to an interpersonal incident with a claimant. However, he also has indicated that if he was trained in work he could complete on his own, he would be able to complete his work duties. As such, the evidence suggests that the Veteran would not be able to engage in occupations requiring significant interaction with others. Therefore, occupations he would be capable of performing based on his work history would include those that do not require frequent interaction with others, such as payroll and other paperwork-based duties. Based on the foregoing, the Board finds that the combination of the Veteran's service-connected physical and psychiatric disabilities preclude him from engaging in substantially gainful employment in light of his education, skills, work history, and training. The Veteran is unable to engage in largely physical work due to his bilateral lower extremity neuropathy, unable to engage in sedentary work such as computer or administrative work due to his bilateral upper extremity neuropathy, and unable to work in positions requiring significant interaction with others due to his psychiatric disability. While these limitations may not preclude all possible work with reasonable accommodations, such as suggested by VA examiners, given the Veteran's education and work history, the Board finds it unlikely that he would be able to engage in substantially gainful employment. Accordingly, entitlement to TDIU is warranted. The Veteran's service-connected disabilities did not significantly interfere with daily activities or functioning throughout the entire appeal period, however. Indeed, the Veteran himself stated to Vocational Rehabilitation counselors that despite receiving SSA disability benefits, he was able to work. It appears that the combination of his physical and psychiatric disabilities first precluded employment for which he was trained and educated as early as July 17, 2013, when his dysthymic disorder was first determined to result in occupational and social impairment. Accordingly, TDIU is warranted from July 17, 2013, but no earlier. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss, including as secondary to service-connected diabetes mellitus type II, is remanded. The Veteran has contended that his bilateral hearing loss is the result of his active service or was caused or aggravated by his service-connected diabetes mellitus. Several VA opinions have been obtained to determine the etiology of his hearing loss. The September 2019 remand instructions directed the RO to obtain a new VA examination and a medical opinion which considered in-service notations suggesting preexisting right ear hearing loss and which addressed the secondary theory of entitlement. A VA audiological examination was conducted in May 2021 and an addendum opinion was obtained in August 2021. Regarding the right ear hearing loss, the examiner determined that hearing loss existed prior to service and was aggravated beyond normal progression during service. However, the rationale provided argued against a nexus to service, determining that an August 2008 diagnosis of Meniere's disease explained the asymmetrical configuration of hearing loss and fluctuation noted in audiograms and constituted the primary etiology of his hearing loss. Regarding the left ear hearing loss, the examiner found that hearing loss did not exist prior to service and it was not the result of service, as Meniere's disease explained the hearing loss and fluctuation in hearing acuity. The examiner further concluded that bilateral hearing loss was less likely than not caused or aggravated by diabetes mellitus. However, the rationale merely attributed hearing loss to Meniere's disease without discussing the effect of diabetes mellitus or the Veteran's history of hearing loss development in light of his diabetes mellitus disability. The examination and opinions relied heavily on a diagnosis of Meniere's disease made many years after separation from service and many years after the first documented hearing loss in both ears. Further, the examiner provided conflicting information, finding right ear hearing loss preexisted service and was aggravated beyond normal progression, but then was instead due to Meniere's disease. Finally, the secondary service connection opinion did not provide an adequate rationale as to the actual effect of diabetes mellitus on the Veteran's bilateral hearing loss. As such, the Board finds that a new VA opinion is needed before a decision may be rendered on the claim. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate VA clinician regarding the etiology of the Veteran's bilateral hearing loss. The need for an additional in-person examination is left to the discretion of the clinician offering the opinion. The clinician is asked to review the entire record and to address the following: (a.) Determine whether any hearing loss preexisted the Veteran's first or second periods of active service and if so, whether any such disorder increased in severity beyond its natural progression during service. Special attention is directed to the January 1965 and May 1966 pre-induction audiological examinations; the July 1968 separation examination and report of medical history which noted that there was deafness at high and low frequencies in the right ear; and the May 1980 enlistment examination and report of medical history. (b.) Determine whether any pre-service hearing disability produced a subsequent disorder which was first manifested during a period of service. (c.) If it is determined that the Veteran's right or left ear hearing loss did not preexist service and/or was not aggravated in service, determine whether it is at least as likely as not that such current disability had its onset during service or is otherwise the result of a disease or injury during service. (d.) Regardless of whether the Veteran's right or left ear hearing loss preexisted and/or was aggravated by service, determine whether it is at least as likely as not that the claimed hearing loss was proximately caused or aggravated (i.e. worsened beyond natural progression) by his service-connected diabetes mellitus. The examiner is specifically asked to address the March 2012 and June 2018 VA examination reports indicating that diabetes mellitus can have a serious impact on hearing. (e.) The clinician is reminded that the term "aggravated" as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. at 239. (f.) The clinician is further asked to address the findings of the May 2021/August 2021 examiner which indicated that all of the Veteran's hearing loss was the result of Meniere's disease, which was diagnosed many years after the first indication of hearing loss. The clinician is asked to discuss the development of Meniere's disease and whether it caused in-service hearing acuity threshold shifts long prior to its clinical presentation to VA providers. The clinician should reconcile the prior VA opinions with any opinion given. (g.) All opinions should be accompanied by supporting rationale explaining how the clinician arrived at the conclusions expressed. If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. (Continued on the next page) (h.) If the clinician determines that s/he cannot provide an opinion without resorting to speculation, the clinician should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 2. Ensure that the examination report is associated with the claims file. After the above development and any additionally indicated development has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.