Citation Nr: 21066500 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-14 785A DATE: November 1, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's service-connected disabilities were of sufficient severity to have precluded him from obtaining and maintaining substantially gainful employment prior to his death. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. § 501; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from October 1966 to October 1968, to include service in the Republic of Vietnam. He died in March 2020 during the pendency of this appeal. The appellant is his surviving spouse, who has been properly substituted as the claimant for the purposes of processing the appeal to completion. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This issue was remanded by the Board in February 2021, with TDIU being remanded as inextricably intertwined with the Veteran's claim for service connection for ischemic heart disease. Since that date, an August 2021 rating decision granted service connection for ischemic heart disease. The Appellant seeks a TDIU. She contends that the Veteran's diabetes mellitus, peripheral neuropathy, ischemic heart disease, and PTSD rendered him unable to secure or follow a substantially gainful occupation. 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 they are 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). The Veteran was service-connected for the following disabilities: ischemic heart disease (30 percent from April 26, 2011); chronic diarrhea associated with diabetes mellitus (30 percent from August 22, 2012); posttraumatic stress disorder (PTSD) with depression and anxiety (30 percent from April 11, 2014); diabetes mellitus (20 percent from August 9, 2010); left and right lower extremity peripheral neuropathy (10 percent for each extremity from September 19, 2011); bilateral hearing loss (10 percent from April 11, 2014); tinnitus (10 percent from April 11, 2014). As indicated above, disabilities resulting from common etiology or a single accident will be considered as one disability for purposes the minimal criteria for TDIU. Given that the Veteran's diabetes and chronic diarrhea are of common etiology, the disabilities are combined using the Combined Ratings Table found at 38 C.F.R. § 4.25 and account for one disability ratable at 40 percent. The Veteran had sufficient additional disability to bring the combined rating to 80 percent. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The Veteran has a high school diploma and completed one year of college. He worked for 35 years at Solutia Chemical Company in industrial maintenance. The Veteran retired in June 2001. He was not employed after that time and received no further work experience or education. The Veteran received Social Security Disability benefits in June 2001, but the records underlying this decision were destroyed and are unavailable for review. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his several service-connected disabilities. While the Veteran stated on his VA Form 21-8940 that his diabetes and peripheral neuropathy prevented him from working, a May 2015 VA examination for the Veteran's diabetes and peripheral neuropathy did not indicate any functional impact from these disabilities on the Veteran's ability to work. However, an August 2019 VA examination which diagnosed the Veteran with chronic diarrhea due to his diabetes mellitus medication noted that the Veteran's condition would require an immediate and frequent access to the restroom due to his intestinal conditions. The Veteran's ischemic heart disease affects his ability to work due to his decreased ability to tolerate moderate exertion. See August 2019 Heart Condition VA Examination. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his PTSD with depression and anxiety including symptoms of depressed mood, and chronic sleep impairment as noted at a May 2015 VA examination. The examiner opined that the Veteran's symptoms would cause 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. A private medical opinion indicated that the Veteran experienced: depressed mood, anxiety, panic attacks that occurred weekly or less often, mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty adapting to stressful circumstances, including work or a work like setting. See July 2016 Private Opinion of Dr. LaConsay. Given the presence of mild memory loss, difficulty adapting to stressful circumstances, including work or a work like setting, and chronic sleep impairment, these symptoms make it probable that the Veteran would have struggled to follow a substantially gainful occupation. Taken as a whole, the Veteran's physical limitations from his diabetes mellitus, chronic diarrhea, and ischemic heart disease would have likely restricted him to sedentary employment, which would be difficult to adapt to when considering the Veteran's prior work experience in only manual labor, without any training otherwise. Additionally, the Veteran's mild memory loss and difficulty adapting to stressful circumstances as the result of his PTSD would likely have made learning a sedentary job difficult, and tinnitus and hearing loss might have presented obstacles to many forms of sedentary employment. Given the forgoing, the evidence is in relative equipoise as to whether the Veteran's service-connected disabilities precluded him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, a TDIU is warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.