Citation Nr: 21066917 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 14-40 447 DATE: November 2, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disease or injury (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities render him unable to secure and follow a substantial gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1971 to June 1974. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska (hereinafter Agency of Original Jurisdiction (AOJ)). In April 2016, the Veteran appeared and testified before the undersigned Veterans Law Judge, at a Travel Board hearing, held at the RO. A transcript of this hearing has been reviewed and associated with the Veteran's electronic claims folder. In May 2018, the Board remanded Veteran's claim for entitlement to an award of a TDIU to the AOJ to obtain Social Security Administration Benefits records. The Board noted that the Veteran's VA treatment records was dated through October 2014, as such ordered that the AOJ obtain the most recent copies of the Veteran's VA treatment records. In July 2019, Supplemental Statement of the Case (SSOC) denied the Veteran's claim for a total disability rating based upon individual unemployability due to service-connected disease or injury (TDIU). In August 2021, the Veteran waived his rights to have all new evidence reviewed by the AOJ. Thus, the Board may properly consider the documents provided. Entitlement to a total disability rating based upon individual unemployability due to service-connected disease or injury (TDIU). The Veteran filed his TDIU claim on April 18, 2014. An August 2014 Rating Decision denied Veteran's claim for TDIU and he submitted his Notice of Disagreement in September 2014. The Veteran maintains that his service-connected diabetic neuropathy in all four limbs precludes him from obtaining and maintaining substantially gainful employment. The Veteran has not worked since May 2013 and is currently on Social Security Administration (SSA) disability benefits. See August 19, 2021, Veteran's Post Remand Brief. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability); 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. 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. 38U.S.C. §1155; 38C.F.R. §§3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. The Veteran is currently service connected for post traumatic stress disorder (PTSD) rated as 30 percent disability since October 18, 2012. In additional he has multiple service connected disabilities resulting from diabetes mellitus. These include diabetic peripheral neuropathy of the right lower extremity associated with diabetes mellitus type II rated as 20 percent disabling effective April 18, 2014; diabetic peripheral neuropathy of the left lower extremity associated with diabetes mellitus type II rated as 20 percent disabling effective April 18, 2014; ischemic optic neuropathy, left eye associated with diabetes mellitus type II rated as 10 percent disabling effective April 18, 2014; diabetic peripheral neuropathy of the left upper extremity associated with diabetes mellitus type II rated as 10 percent disabling effective April 18, 2014; and diabetic peripheral neuropathy of the right upper extremity associated with diabetes mellitus type II rated as 10 percent disabling effective April 18, 2014. He is also service connected for a left ear hearing loss disability rated as noncompensable effective April 25, 2012. The Veteran's combined rating is 80 percent from April 18, 2014. As his service connected diabetes and associated disability share a common etiology and combine to a rating greater than 40 percent, the Board finds the Veteran met the criteria for consideration of a schedular TDIU from April 18, 2014. See 38 C.F.R. § 4.16(a). In June 2019, the Social Security Administration (SSA) submitted Veteran's May 2013 SSA Disability records, which reported that the Veteran's diabetic neuropathy affects his ability to continue his job of correctional officer because it makes him unable to walk more than 100 feet before experiencing shooting pain, tingling, and numbness in both his feet. See SSA Medical Treatment Records. The Veteran also reported that he is only able to stand between 5 and 10 minutes at a time because of the pain, pins and needles and tingling in his lower limbs. See Id. Further, he is unable to sit in a regular chair for longer than 5 minutes without experiencing pain in his legs and sciatic nerve area. See Id. Additionally, the Veteran reported he experiences on going neuropathy symptoms in his upper limbs, noting that he frequently drops things for no reason and feels pain and numbness in his hands. See Id. The Board notes that the most current VA examination is October 2014. Since then, the Veteran has indicated that his condition has worsen. In an August 2021 Appellate Brief, the Veteran stated that his service-connected disability is "preventing him from doing any type of physical activities and that is the type of work he normally has done throughout his life." The Veteran also stated that he lacks the necessary training, education, or experience to engage in substantially gainful employment that could accommodate his service-connected disability. See Appellate Brief. At his April 2016 Board Hearing, the Veteran stated that he lacks the ability to perform non-exertional tasks inherent to in even a sedentary job, such as sitting for long periods of time, walking around an office, writing by hand, or using a mouse or computer keyboard. The Veteran also mentioned that he cannot seat long because of pain in his lower back, as he does have a non-service condition (disorder of back/discogenic and degenerative). In this regard, given the 30 percent rating assigned for his post-traumatic stress disorder (PTSD), 20 percent rating for his diabetes mellitus Type II, 10 percent and 20 percent rating assigned for each diabetic peripheral neuropathy lower extremity associated with diabetes mellitus type II, 10 percent rating for tinnitus, 10 percent rating for ischemic optic neuropathy, left eye associated with diabetes mellitus type II, 10 percent rating assigned for each diabetic peripheral neuropathy, upper extremity associated with diabetes mellitus type II rated and the competent and credible lay statements of the Veteran of worsening symptoms throughout the appeal, the Board finds that the Veteran would not be able to adequately perform even the minimal physical requirements of sedentary employment, let alone meet non-sedentary demands of labor. Here, the Board finds that the combined effect of his service-connected diabetic neuropathies in all four extremities would prevent the Veteran from following a substantial gainful occupation in most sedentary and non-sedentary employments, including his past occupation as a corrections officer and sergeant, because he has shown to be unable to ambulate or perform sedentary work functions using a computer keyboard, seating and/or walking for long period of time in a meaningful way for employment purposes due to such service-connected disabilities. Moreover, the Board also finds that the problems his service-connected diabetic neuropathy disabilities would cause sitting for prolonged periods of time, reported as pain, numbness and burning in the lower extremities, would also interfere with the Veteran being able to secure and follow a substantially gainful occupation for the first time in a sedentary employment. Accordingly, the Board finds that the criteria for a TDIU have been met and the claim is granted. See 38C.F.R. §4.16(b). In reaching the above conclusion, the Board has not made any finding as to the effective date of the award of the TDIU because this issue is not before us. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Le, Tai D. 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.