Citation Nr: 21069359 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-62 451 DATE: November 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, from April 3, 2009, to June 14, 2016, and from October 1, 2016, to August 1, 2017, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The most probative evidence demonstrates that the Veteran service-connected disabilities rendered him incapable of securing and following a substantially gainful employment consistent with his education background and work history, from April 3, 2009, to June 14, 2016, and from October 1, 2016, to August 1, 2017. CONCLUSION OF LAW The criteria for entitlement to an assignment of total disability rating based on individual unemployability (TDIU) from April 3, 2009, to June 14, 2016, and from October 1, 2016, to August 1, 2017, have been met. 38 U.S.C. §§ 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (b), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1965 to August 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Clarification of Appeal Period The Veteran formally filed a Veterans Application for Increased Compensation Based on Unemployability (TDIU) on January 8, 2014, indicating that he last worked (on a parttime basis) in February 2009. Notwithstanding this fact, pursuant to Rice, the Board finds that the issue of a TDIU had been raised as part of the Veteran's increased rating claims for his underlying service-connected peripheral neuropathy, right upper and lower extremities, associated with diabetes mellitus (DM) type II, and diabetic macular edema with diabetic neuropathy cataracts, diplopia, and cranial nerve III palsy/gaze palsy, associated with DM, type II, and PTSD, which all had an appeal period beginning April 3, 2009. The Court has held that a request for a total disability rating based on individual unemployability is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Though his TDIU claim was initially denied by the RO in 2014 and in 2015, this issue initially became moot on June 15, 2016, when the Veteran's combined disability rating was at 100 percent. The Board notes that this was due to a temporary grant of a 100 percent when the Veteran suffered a stroke (cerebral infarction with impairment of rectal sphincter control associated with diabetes mellitus, type II). Subsequently, the Veteran's combined rating deceased to 90 percent on October 1, 2016, when his temporary 100 percent rating for his cerebral infarction was reduced to 30 percent. The record reflects that the Veteran's combined disability rating was again at 100 percent, this time permanently, effective August 2, 2017, due to respective percentage rating increases for several of his service-connected disabilities, including DM, type II (from 20 percent to 40 percent) and his related peripheral neuropathy claims lower upper extremity/right lower extremity (from 10 percent to 30 percent). Although a grant of a 100 percent disability does not necessarily render the issue of TDIU moot since VA's duty to maximize a claimant's benefits includes consideration of whether such disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114, in this case, the Veteran was granted SMC on account of his cerebral infarction (stroke) from June 15, 2016, to October 1, 2016. Further, the Veteran's subsequent permanent 100 percent combined disability rating effective August 2, 2017, was based upon multiple service-connected disabilities and not "a single disability rated as total." (This was also the case with respect to the period prior to June 15, 2016.) Therefore, the Veteran is not entitled to SMC under 38 U.S.C. § 1114 (s) before June 15, 2016, and from August 2, 2017, until the Veteran was assigned a temporary total rating for his ischemic heart disease, effective June 14, 2020, to July 31, 2020, after which time he was assigned a 100 percent rating for his ischemic heart disease. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Thereafter, the Veteran was assigned a higher level of SMC under 38 U.S.C. § 1114(l), effective from August 1, 2020. Consequently, the appeal period of the Veteran's TDIU claim is from April 3, 2009, to June 14, 2016, and from October 1, 2016 to August 1, 2017. TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single 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. §§ 3.340, 3.341, 4.16(a) (2015). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In this regard, a 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. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if it is determined that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 3.321. VA will grant a TDIU when the evidence of record shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). Applicable regulations place responsibility for the ultimate total disability rating based on individual unemployability determination on VA, not a medical examiner. Accordingly, it should now be clear that the ultimate issue of whether a TDIU claim should be awarded is not a medical issue but is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "Substantially gainful employment" is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective from April 3, 2009 to June 14, 2016, and from October 1, 2016 to August 1, 2017, subject to the laws and regulations governing the payment of monetary benefits For the reasons discussed below, the Board finds that entitlement to TDIU, for these specified periods, is warranted in this case. The record shows that the Veteran had a combined rating of 80 percent disability rating as of April 3, 2009, for the following disabilities: diabetes mellitus, type II (20 percent from 03/31/2008); posttraumatic stress disorder (30 percent from 04/03/2009); diabetic macular edema with diabetic neuropathy, cataracts, diplopia, and his cranial nerve III palsy/gaze palsy associated with DM, type II with erectile dysfunction and amputation of the right foot 4th digit (10 percent from 04/03/2009); ischemic heart disease/coronary artery disease s/p (10 percent from 3/31/09); peripheral neuropathy, right upper extremity (medial, radial ,and ulnar nerves) associated with DM, type II, (10 percent from 4/3/09); peripheral neuropathy, right lower extremity (sciatic nerve) associated with DM, type II (10 percent from 4/3/09); peripheral neuropathy, left lower extremity (sciatic nerve) associated with DM, type II (10 percent from 4/3/09); tinnitus (10 percent from 3/31/09); bilateral hearing loss (0 percent from 3/31/09) and scar, residuals of coronary artery bypass graft (0 percent from 3/31/09). With regards to the Veteran's employment history, during a 2010 psychiatric VA examination, the Veteran reported that following his military discharge, he initially worked as a heavy equipment operator and mechanic for a construction company, but could not maintain the physical demands of the job, and so he primarily started to work in maintenance, a field he worked in for 27 years, until February 2009. During his prior VA examinations (general and psychiatric) in June 2009 and July 2009, respectively, the Veteran stated that the nature of his part-time work entailed installing equipment for retirement homes and laundry facilities, that he had temporarily secured another part-time job after his February 2009 unemployment, but after a couple of months of parttime work, he permanently stopped working due to his increased psychiatric and his other service-connected disabilities. In denying the Veteran's TDIU claim, the RO cited that the evidence of record did not show that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The RO noted that although the Veteran's September 2009 private medical opinion discussed the extent of the Veteran's various disabilities of record, it primarily focused on the Veteran's nonservice-connected disabilities and there were no specific statements with regards to how any of the Veteran's disabilities affected his ability to earn a living. Other VA opinions of record did not directly address the Veteran's unemployability with regards to his service-connected disabilities, instead just noting that the Veteran was retired, which of itself and the Veteran's age is not relevant to the question of whether such disabilities would have rendered him incapable of securing and following a substantially gainful occupation. However, in reviewing the Veteran's medical treatment records, the Board notes several references to how the severity of the Veteran's service-connected disabilities adversely affected his ability to work, as noted below. During his January DM neurological VA examination, the Veteran reported that beginning 2009 he noted significant numbness/tingling of his feet, including imbalance, and later, similar symptoms in the hands. The examiner acknowledged the Veteran's functional impairment, and made the following finding: Veteran has impaired balance because of the neuropathy and also diminished strength in hands and feet. Hence, it would be difficult for him to perform many job duties (carrying, climbing, holding objects etc.). A July 2009 VA psychiatric treatment record notes the Veteran's report of only being able to work on a parttime basis and that his PTSD symptoms in particular were also worsening. A May 2010 (received in July 2010) record from the Veteran's treating physician reflects that the Veteran had significant DM retinopathy, and his treatment for such entailed undergoing multiple procedures, such as focal laser for macular edema for both eyes, and intravitreal Kenalog in the right eye, and that without any significant improvement, the Veteran would have to be periodically but continuously treated with Avastin injections (injected into the eyes). Also, during a DM peripheral neuropathy 2012 examination, the Veteran asserted that he started experiencing numbness in his toes and ankles in 1992, and that his subsequent diagnosed DM peripheral neuropathy in particular made it quite difficult for him to stay employed in the maintenance field because he could not climb ladders due to the numbness in his feet. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran need not show 100 percent unemployability in order to be entitled to a TDIU rating. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). As such, notwithstanding lack of explicit findings of unemployability on his medical records, the Board finds that the noted references above regarding the growing severity of Veteran's service connected disabilities, particularly associated with his DM type II, such as bilateral upper and lower extremity peripheral neuropathy, diabetes mellitus retinopathy, and his PTSD, show that the Veteran would likely not have been able to obtain or sustain employment as early as April 3, 2009, the effective date of underlying disabilities. Although the evidence shows that the Veteran reportedly secured a temporary parttime job for a few more months following his initial unemployment in February 2009, there is no evidence that this part-time employment was more than marginal under the language of 4.16. In addition, during the period of appeal, the Veteran's ratings for peripheral neuropathy lower and upper extremities were respectively increased from 10 percent to 30/40 percent (1/8/14), and for diabetes mellitus retinopathy, from 10 percent to 30 percent (1/8/14), a further indication that these service-connected disabilities also increasingly inhibited his daily functioning, which includes the ability of remaining gainfully employed. Consequently, the Board finds that when the evidence of record is viewed holistically, it reflects that the Veteran became incapable of obtaining or sustaining employment on April 3, 2009, the effective date for his service-connected peripheral neuropathy, bilateral upper and lower extremities, associated with diabetes mellitus (DM) type II, PTSD, diabetic macular edema with diabetic neuropathy, cataracts, diplopia, and cranial nerve III palsy/gaze palsy associated with DM, type II, and that TDIU was raised on the record on that date, which is the earliest date that his TDIU claim can be granted pursuant to 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). Therefore, based on the evidence of record for the period of April 3, 2009, to June 14, 2016, and from October 1, 2016, to August 1, 2017, the Board will give the Veteran the benefit of the doubt and conclude that he was unemployable due to his service-connected disabilities, during which he also met the schedular threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a). Accordingly, resolving all doubt in the Veteran's favor, the Board finds that entitlement to TDIU, effective April 3, 2009 to June 14, 2016, and from October 1, 2016 to August 1, 2017, is warranted, and as a result, the Veteran's TDIU claim is granted for these periods only. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rice v. Shinseki, 22 Vet. App. 447 (2009). 38 C.F.R. §§ 3.102, 3.340, 4.15. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.