Citation Nr: 21066304 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-49 215 DATE: October 29, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU) is denied. FINDING OF FACT The Veteran's service-connected disabilities do not render him unable to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability based on individual unemployability (TDIU) have not been met. 38 U.S.C. §1155, 5107; 38 C.F.R. §§3.340, 3.341, 3.400, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from April 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran had a hearing before a Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board remanded the issue in an October 2019 decision for further development and a new VA examination. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). A request for TDIU evaluation arises when it is expressly raised by the Veteran or when such a claim is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2021, the Board sent a letter to the Veteran, informing him that the VLJ who conducted his hearing was no longer able to participate in the adjudication of his decision. The Board notified the Veteran that he has the right to request another hearing if he so chooses. 38 U.S.C. § 7107(c); 38 C.F.R. § 19.3(b), 20.707. Additionally, the Board notified the Veteran that if he did not respond within 30 days of the letter, the Board will assume that he does not want another hearing and will proceed accordingly. At this time, the 30-day abeyance period has passed, and the Veteran has not responded. Therefore, the Board is prepared to fully adjudicate the claim. The Board is now satisfied that there was substantial compliance with its remand orders and is prepared to adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a total disability based on individual unemployability (TDIU) The Veteran seeks a TDIU. The Veteran contends he is unemployable due to his service-connected disorders alone. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). As discussed in Withers v. Wilkie, 30 Vet. App. 139 (2018), the term "sedentary employment" is not defined in statute or regulation, and there is no requirement that it be used. However, if it is used, the Board should explain the meaning of sedentary work on a case-by-case basis as derived from the term and how the term applies to the Veteran's specific educational and occupational history. Similarly, if an examiner used the term, the Board should explain how the term is being applied to the Veteran's specific disability picture and vocational history. "Sedentary" means "doing or requiring much sitting" or "not physically active." Merriam-Webster's Collegiate Dictionary 1123 (11th ed. 2012). It also means "1. Sitting habitually; of inactive habits. 2. Pertaining to a sitting posture." Dorland's Illustrated Medical Dictionary 1687 (32d ed. 2012). However, as noted above, the meaning of sedentary work is to be determined on a case-specific basis, so the Board should consider whether these definitions make sense in the present case. The Veteran has the following disabilities that are service connected: anxiety to include symptoms of posttraumatic stress disorder (PTSD) associated with frostbite residuals of the right foot (rated 50 percent from April 2015); frostbite residuals of the left foot (rated 30 percent from January 2005); frostbite residuals of the right foot (rated 30 percent from January 2005); peripheral neuropathy of the left lower extremity, to include an uneven gait, associated with frostbite residuals of the left foot (rated 20 percent from October 2015); and peripheral neuropathy of the right lower extremity, to include an uneven gait, associated with frostbite residuals of the right foot (rated 20 percent from October 2015). The Veteran's combined evaluation for compensation is 90 percent from October 2015. Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is not warranted. The Veteran testified in his July 2019 Board hearing that he had completed high school and had received an associate degree in business. The CAPRI records that were submitted into evidence confirmed that the Veteran had completed 14 years of formal education. In July 2019 the Veteran also submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, which again confirmed that the Veteran had completed high school and two years of college. In January 2020 the Veteran had a mental health examination which once again confirmed the Veteran's educational history including the fact that he had received an associate degree in business from Black Hawk College. Throughout the record the Veteran also reports a long work history. He reports working for Alcoa Aluminum as an over-the-road truck driver in the shipping department. In his mental health examination, he reported that he worked for Alcoa for 10 years. The Veteran also worked for 30 years at the Rock Island Arsenal as a materials handler. The Veteran testified at the Board hearing that he was tasked with ordering parts and equipment and sending it out to different Army and Marine locations. The Veteran testified in his July 2019 Board hearing that he had not worked in five years. However, his VA Form 21-8940 reported that he last worked in 2007. The VA Form 21-8940 specifically stated that his disabilities first affected his full-time employment in December 2004, and he became too disabled to work in January 2007. Yet, the Veteran claimed on the 21-8940 that he did not leave his last job because of a disability, he did not receive or expect any disability retirement benefits, and he did not receive or expect any worker's compensation benefits. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his peripheral neuropathy and residuals of his cold injury, specifically diagnosed as frostbite. The Veteran has submitted multiple lay statements throughout the record. The Veteran contends that due to the frostbite he got while serving in Korea he has pain, discoloration, alligator skin that peels and hardens. He also reports numbness in the feet and stated that Army doctors told him that his feet were permanently damaged. The Veteran also states that his feet are dry and scaly, and he treats the condition using ointment. The Veteran has had several VA examinations throughout the record as well, all of them noting that he does have a cold injury and residuals of frostbite due to his time in Korea. The Veteran was also found to have bilateral peripheral neuropathy associated with the residuals of frostbite. In June 2015, the Veteran received another VA examination for his cold injury. The Veteran has pain and numbness in his feet due to cold exposure. The examiner examined both feet and found them to be painful, numb, sensitive to the cold, different color, with locally impaired sensation and nail abnormalities bilaterally. The examiner found that the cold injury residuals did impact the Veteran's ability to work, stating that he was unable to work in conditions below 32 degrees Fahrenheit. The Veteran was also given a VA examination that focused on his peripheral neuropathy in June 2015. The examiner noted that the Veteran had moderate numbness in his lower extremities along with intermittent, moderate pain. The examiner noted decreased sensation to light tough in his right and left foot. The Veteran's gait was found to be abnormal, and his bilateral sciatic nerves had mild, incomplete paralysis. Despite these findings, the examiner found that the Veteran's peripheral neuropathy did not impact his ability to work. In January 2016, the Veteran submitted a statement in support of his claim for TDIU. The correspondence also included statements that noted that the Veteran uses a cane to walk, has an uneven gait, and is unsteady on his feet, partially due to the residuals of frostbite. In February 2016, the Veteran had a medical opinion rendered based upon all the medical evidence. The doctor opined that the conditions of cold injury and neuropathy only imparted mild functional impairment and did not preclude the Veteran from performing light duty or sedentary tasks. In March 2016 the Veteran was seen at the Bettendorf CBOC due to constant pain in his feet. It was noted that he used a cane for ambulation and felt pain with and without his shoes on. The Veteran was found to be able to feel temperature. The Veteran reported that he feels as if he is unable to work. The physician did state that he has difficulty with his feet. In August 2016, the Veteran specifically stated that a doctor had informed him that he is unable to work. To date, no medical record or letter is found in the record to support this assertion by the Veteran. Again, in August 2016 the Veteran stated that he wanted a letter that claimed he was unable to work due to his foot pain. The Veteran was told that his primary care provider at the VA does not make statements deeming whether the patient is unable to work. In July 2019 at the Board hearing, the Veteran testified that he believed his service-connected disabilities were getting worse. In October 2019, the Board remanded the Veteran's claim for new VA examinations. In January 2020, the Veteran once again was seen for a VA examination. The examiner initially noted that the Veteran did suffer from bilateral lower extremity sciatic peripheral neuropathy secondary to cold injury of his feet. The Veteran was found to have lower extremity pain, numbness, and tingling of the feet that are all worse in the cold. The Veteran reported he had no problem driving even as the neuropathy is found to be worsening. The Veteran also reported that he walks his dog three times a day but has not been able to walk his dog as much as usual since the weather had turned colder by the time of the examination. The Veteran is found to have constant, mild pain in the bilateral lower extremities, as well as mild paresthesias and dysesthesias. At times the pain can intermittently become moderate. The Veteran also has moderate numbness in both lower extremities as well. Sensation in the right and left toes, feet, ankle, lower leg, knee, and thigh is all found to be decreased. The Veteran also presented with an abnormal gait due to his neuropathy and the residuals of his cold feet injury. The sciatic nerves were also found to present mild, incomplete paralysis. The examiner found that the Veteran's peripheral nerve condition impacts his ability to work. Specifically, the examiner stated that the Veteran should not work on ladders, uneven ground, or in jobs where he has to climb steps. It was noted that he would likely not be able to stand for over an hour at a time in warm weather or to walk more than 15 minutes at a time in warm weather. He should not lift or carry more than five to 10 pounds, should not work in temperatures less than 32 degrees where he would need to be standing or walking. However, the examiner did state that he would likely be able to perform sedentary work, would likely be able to do light duty work indoors or in warm temperatures but would need more time to complete tasks that involved walking or standing. The examiner stated that it is less likely than not that the bilateral sciatic peripheral neuropathy and the bilateral cold feet injury residuals separately or in combination would preclude the Veteran from substantially gainful employment consistent with his occupation and educational experience. The examiner reasoned that the Veteran would be able to perform sedentary work as he does not appear to have significant limits with the use of his hands or with sitting. He would likely be able to do limited light duty work indoors on level ground which would need to be at his own pace and distance. The Veteran reports he is not limited at all in driving a vehicle. In April 2021, the Veteran received another opinion on his peripheral nerve condition and once again it was found that the neuropathy did impact the Veteran's ability to work but did not preclude him from sedentary work or light duty work that takes place inside or in warm temperatures. In June 2015, the Veteran received a VA examination for his PTSD. The examiner noted that the Veteran was had symptoms that included depression, anxiety, avoidance, hyperarousal, trauma induced nightmares, feelings of detachment, and negative alterations in his mood. The Veteran was found to have significant social impairment due to his tendency to isolate. The examiner found the Veteran to display 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. The Veteran was found to have some hallucinations and sleep impairment along with his other symptoms of PTSD and depression, but he noted that his medication had been helping. The Veteran also reported that he did not have to call in sick during his 28 years working at the Rock Island Arsenal due to PTSD symptoms. In June 2019, the Veteran underwent a depression screening at the Bettendorf CBOC in which he was found to have mild depression. The Veteran reported that his depression makes his ability to work or take care of things at home somewhat difficult. He also reported that he finds it difficult to get along with others as well. In January 2020, the Veteran received another VA examination for his PTSD. The Veteran was noted to have mild depression. The examiner found 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. The Veteran reported that he still suffered from sadness due to the passing of his wife the year before, although his PTSD symptoms and sleep were both improved due to his medication. The Veteran noted that he enjoyed reading and noted that he had received an associate degree in business from Black Hawk College. The Veteran reported that he retired in 2003 from Rock Island Arsenal after working for approximately 30 years in the warehouse. He reported that he had gotten along with his coworkers and had a good job performance. The examiner did note that the Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in adapting to stressful circumstances, including work or worklike setting, as well as staying home and isolating often. Despite these findings, the examiner opined that the Veteran's anxiety levels are stable on current psych medications and some of his symptoms like nightmares are in remission. In fact, the examiner noted that the Veteran's PTSD appears to be in partial remission on his current medication regimen. The Veteran was found to be maintaining good psychiatric stability and his anxiety levels are controlled. He is functioning at an adequate level despite his wife's death, and he remains cognitively intact without evidence of suicidal ideation, homicidal ideation, or psychotic features. Therefore, the examiner found that the impact of his service-connected PTSD did not preclude his employment in the past and does not do so now. The PTSD symptoms were found to not cause clinically significant distress or impairment in social, occupational, or other areas of functioning. The Veteran was found capable of performing sedentary work. Given the forgoing, the Board concludes that the Veteran's service-connected disabilities do not preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. As noted above, the Veteran does have service-connected disabilities, but none of these disabilitieseither considered individually or in the aggregate preclude him from gainful occupation. The Veteran has shown no evidence that he is totally occupationally impaired due to his residuals of frostbite, peripheral neuropathy, or PTSD. Nothing in the record shows that these disabilities caused his work performance to suffer when he was still employed. While the disabilities have progressed some since his last examinations, the Board still finds the Veteran able to secure and follow substantially gainful occupation that would be consistent with his education, skills, training, and work history. Although some VA examinations noted above show a functional impact due to the Veteran's service-connected conditions, the Veteran is not shown to be unable to maintain any substantially gainful employment or that he was not gainfully employed until he retired after 30 years of employment. Rather, the examiners all concluded that the Veteran's service-connected disabilities would not prevent at least some employment, specifically to include driving, which is a career the Veteran had engaged in for a decade. Further, the Board notes that the examiners all found the Veteran to be capable of sedentary work, as that term is described above, which the Board finds to be consistent with the Veteran's 30-year career as a materials handler, which required him to order and ship items but did not require manual labor as the Veteran described the job. The Board has considered the Veteran's lay statements asserting that his service- connected disabilities impact his ability to work. However, the lay statements are not consistent with the evidence of record noting that the Veteran maintained employment for 40 years after separation from service. Additionally, the evidence of record indicates that the Veteran did not have problems at work and was not fired from his position, but rather, retired after an extensive career. Having considered the evidence of record before the Board at this time, including medical and lay evidence in the claims file, the Board finds that preponderance of the evidence weighs against finding that the Veteran's service connected disabilities precluded him from following a substantially gainful employment at any time during the appeal period. Thus, entitlement to a TDIU is denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.