Citation Nr: 21068250 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-19 959 DATE: November 9, 2021 ORDER Effective May 2, 2012, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is warranted. FINDING OF FACT Effective May 2, 2012, the Veteran's service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. CONCLUSION OF LAW Effective May 2, 2012, the criteria for a TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to November 1970, including service in the Republic of Vietnam from December 1969 to November 1970. The Veteran appeared at a hearing in November 2019 before a Veterans Law Judge who is no longer employed at the Board. In September 2021, the Board sent the Veteran a letter asking him if he wished to have another Board hearing in this matter, but he did not reply and thus the Board will adjudicate the appeal based on the current record. This appeal stems from a claim filed on May 2, 2012, and effective that date, the Veteran's service-connected disabilities have a combined 80 percent rating, thus satisfying the schedular criteria set forth in 38 C.F.R. § 4.16(a). In August 2020, the Board remanded to obtain updated treatment records and VA examinations. Upon remand, a December 2020 rating decision granted a TDIU, effective October 2, 2018. However, as the Veteran's TDIU claim stems from a claim received on May 7, 2013, the December 2020 decision did not constitute a full grant of the benefit sought on appeal. See Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). On May 7, 2013, VA received the Veteran's TDIU claim: asserting that his service-connected PTSD, diabetes mellitus, and neuropathy precluded him from working since November 2011. Effective May 2, 2012, the Veteran was in receipt of a combined 80 percent disability rating for the following disabilities posttraumatic stress disorder (PTSD), rated 50 percent disabling; left and right lower extremity peripheral neuropathy, each rated 20 percent disabling; diabetes mellitus, rated 20 percent disabling; and diabetic retinopathy and erectile dysfunction, each rated zero percent disabling. From August 25, 2014, to August 31, 2016, the Veteran was in receipt of a combined 100 percent rating for the above-listed disabilities and active prostate cancer, rated 100 percent disabling. From September 1, 2016, to September 3, 2020, the Veteran's prostate cancer disability evaluated on the basis of residuals, thus, reducing his combined disability rating to 90 percent. A TDIU has been in effect since October 2, 2018. Thus, at issue in this case is whether a TDIU is warranted from May 7, 2013, to August 24, 2014, and from September 1, 2016, to October 2, 2018. Initially, the Veteran's service-connected disabilities have satisfied the schedular criteria throughout the periods on appeal. See 38 C.F.R. § 4.16. As to education and occupational history, the Veteran has a partial college education and his employment history has been limited to physically demanding work. In this regard, a March 2013 VA psychiatric examination report shows that the Veteran reported that he had worked odds and ends, mostly in the field of construction. In his May 2013 VA Form 8940, the Veteran reported that he as last worked in November 2011, at which time he had to close his painting business due largely to his service-connected lower extremity disabilities. Throughout the period under review, the evidence has shown that the Veteran's service-connected lower extremity peripheral neuropathy has significantly impaired his ability to perform physically demanding occupations, that is, those consistent with his occupational history (construction and painting). In fact, a March 2013 VA examiner opined that the Veteran's peripheral neuropathy impairs his ability to secure and maintain physical employment. The examination report shows that the disability resulted in mild to moderate pain, tingling, and numbness; decreased reflexes in the knees and reflexes absent in the ankles; and no sensation to light touch in the lower legs, ankles, feet, and toes. Such objective medical evidence supports the Veteran's assertion that he has not been able to work as a painter since 2011: painting generally requires work on a ladder and constant standing and walking, all of which are impaired by the Veteran's peripheral neuropathy. Finally, the Veteran's service-connected psychiatric disorder has resulted in symptoms such as anxiety, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, which would have likely precluded the Veteran from continuing an administrative or managerial role in his occupational field (construction and painting). After resolving any doubt in the Veteran's favor, the Board finds the impact of the Veteran's service-connected disabilities has rendered him incapable of obtaining or maintaining substantially gainful employment consistent with his education and occupational history. See Geib, 733 F.3d 1350. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.