Citation Nr: 21073459 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-28 562 DATE: December 8, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) from March 29, 2011, is granted. FINDING OF FACT The evidence is in relative equipoise as to whether from March 29, 2011, the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his education and experience. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for the assignment of a TDIU from March 29, 2011, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board notes that the Veteran requested a Board hearing regarding his appeal. The Veteran was scheduled for a Board hearing in September 2017. The Veteran was deemed a no-show for the hearing and to date, neither the Veteran, nor his representative, have requested that the hearing be rescheduled as of the no-show in September 2017. As such, the Board will consider the hearing request withdrawn. This matter was previously before the Board in January 2020, wherein the Board, in part, denied entitlement to a TIDU. The Board also denied entitlement to disability ratings in excess of: (1) 10 percent for diabetes mellitus type II (diabetes) prior to April 20, 2010; and (2) 20 percent for diabetes from April 20, 2010. The Veteran appealed the portion of the January 2020 Board decision that denied entitlement to a TDIU to the United States Court of Appeals for Veterans Claims (Court). By way of a November 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that remand was warranted for the issue regarding entitlement to a TDIU as the Board erred by providing an inadequate statement of reasons or bases. The Veteran abandoned his appeal regarding the issues for an increased rating for his service-connected diabetes and therefore is no longer on appeal. The matter has returned to the Board for adjudication. 1. Entitlement to a TDIU from March 29, 2011 The Veteran contends that he is unable to work due to his service-connected disabilities. 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. 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is "that which is ordinarily followed by the non-disabled 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 (1991). The Board must consider whether the Veteran's service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran meets the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a) from August 24, 2009 and is a combined 70 percent disabling. He is service connected for PTSD at 50 percent, residuals of a gunshot wound to the left shoulder at 20 percent, diabetes mellitus type II at 10 percent, and scar of the left shoulder at 10 percent. From March 29, 2011, the Veteran has a 90 percent combined rating. He is service connected for PTSD with a 50 percent rating, residuals of a gunshot wound to the left shoulder at 20 percent, diabetes mellitus type II at 20 percent, diabetic retinopathy with cataracts at 20 percent, scar of the left shoulder at 10 percent, peripheral neuropathy of the right upper extremity at 10 percent, peripheral neuropathy of the left upper extremity at 10 percent, right lower extremity diabetic polyneuropathy at 10 percent, left lower extremity diabetic polyneuropathy at 10 percent, and erectile dysfunction at 0 percent. The Veteran is 100 percent service connected from October 8, 2015, to include a 100 percent rating for prostate cancer. While the Veteran meets the TDIU schedular requirements from August 24, 2009, he was not service connected for his upper and lower extremity diabetic neuropathies until March 29, 2011. The combination of his service-connected disabilities, to include the diabetic neuropathies, render him unable to secure and follow substantially gainful employment, as will be discussed below. As such, the Board finds that the grant for a TDIU is from March 29, 2011, when he was granted service connection for his diabetic peripheral neuropathies and retinopathy. In the November 2020 JMPR, the parties agreed the January 2020 Board's reasons or bases in explaining its conclusion are deficient because it failed to discuss Veteran's service-connected disabilities and symptoms in light of the Court's recent analysis in Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The Ray Court provided extensive guidance regarding the meaning of a veteran's ability to "secure and follow" substantially gainful employment. See Ray, 31 Vet. App. at 73. The VA was to consider the following factors when deciding a TDIU claim: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability to perform the types of activities required by the occupation at issue, including 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 (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, including the Veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with co-workers, and demonstrate reliability and productivity. Id. The Court stated the Board failed to discuss many of these factors identified in Ray pertinent to his claim for TDIU. For example, the Veteran's PTSD results in concentration difficulties, angry and irritable outbursts, and sleep difficulties. Additionally, the Veteran's service-connected bilateral upper and lower neuropathy conditions affects his ability to work by impacting his "standing, walking, grip, grasp, writing, and fine motor hand skills." The parties agreed that remand was warranted as the Board failed to discuss how the Veteran could secure and follow substantially gainful employment considering these limitations. Turning to the evidence of record, the Veteran was examined for his PTSD in 2010. The examiner found that the Veteran had symptoms of sleep impairment, panic attacks, episodes of violence, and mildly impaired remote memory. A July 2011 VA examination noted that the Veteran reported burning, watering, tearing, itching, and swelling in both eyes. The Veteran reported visual problems and decreased visual acuity. Also, in a July 2011 VA examination, the Veteran complained of peripheral neuropathy of the hands in the form of numbness and tingling of the fingers. He stated his numbness and tingling interfere with daily activities in the form of grip and sensation. He also complained of pain, weakness, stiffness, lack of endurance, and weakness of the left shoulder and that his left shoulder joint did affect his usual occupation when he worked with a lifting restriction and pain. The VA examiner stated that his service-connected diagnoses do not render him unemployable for sedentary labor but do render him unemployable for manual labor. The Veteran was examined for his diabetes mellitus at a December 2011 VA examination. The examiner stated that because of his diabetic retinopathy and neuropathy symptoms he is unable to work manual labor jobs but not sedentary job with restrictions. He has decreased vision and numbness and tingling of hand and feet bilaterally that limit his strength of extremities. However, when examined for his peripheral neuropathy, the examiner stated that the neuropathy impacts his ability to work due to numbness and tingling of the extremities, and the Veteran's grip is altered. In May 2013, the VA examiner stated that the Veteran's diabetes does not affect his ability to work. Regarding his peripheral neuropathy, the examiner stated he should wear protective shoes if doing heavy duty work, otherwise no restrictions. The Veteran reported at the May 2013 VA examination for his eyes that he had difficultly reading, and the VA examiner opined that his eye condition would prevent his ability to perform occupations, such as those that may require a commercial driver's license. The Veteran submitted VA form 21-8940, Veteran's Applications for Increased Compensation Based on Unemployability, in October 2021. The Veteran noted that he last worked in approximately 2005 and was self-employed as an independent tax preparer and financial planner. He stated that since leaving work, his service-connected conditions have continued to affect his life on a daily basis. He has difficulty reaching overhead and cannot pick up anything that is heavy due to his left shoulder condition. He cannot lift his arm past shoulder level and has occasional pain and itching associated with the scar on his left shoulder. The Veteran stated that regarding his diabetes mellitus, he has decreased stamina when performing strenuous tasks such as prolonged walking, stooping, or bending and becomes very fatigued afterwards. He also experiences an irritated mood every day due to his PTSD and does not like having conversations with others. He has a lack of energy and motivation 50 percent of the time. He is very selective when he leaves his house and generally only goes to the store to get a few items or to get gas. He experiences nightmares and flashbacks. The Veteran also stated he has decreased vision due to his diabetic retinopathy with cataracts and has difficulty reading. He also has numbness and tingling in his hands, fingers, and legs due to peripheral neuropathy. He has trouble with his grip and often drops items. He also ambulates with a cane and has discomfort while sitting and will have to change positions or get up and walk around for a few minutes. He avoids stairs at all costs due to instability and pain. In October 2021, in support of the Veteran's claim for a TDIU, the Veteran's attorney submitted a vocational assessment dated August 2021. The vocational expert indicated she reviewed the Veteran's claim file in providing her opinion. She found that the records are consistent with an individual who is disabled and more likely than not unable to secure and follow substantially gainful employment due to his service-connected PTSD, diabetic retinopathy with cataracts, left shoulder condition, bilateral upper extremity peripheral neuropathy, and bilateral lower extremity diabetic polyneuropathy. The vocational expert found that the Veteran has suffered from the following symptoms due to his PTSD: insomnia, panic attacks, recurrent and intrusive distressing recollections and dreams of the PTSD event, avoidance efforts, sleeping difficulties, irritability, outbursts of anger, difficulty concentrating, nightmares, flashbacks, hypervigilance, and an exaggerated startle response. She opined that the Veteran's symptoms due to his PTSD more likely than not restrict him to an extent that would preclude him from sustaining concentration on work tasks to the extent required by employers. She stated that the Veteran's difficulty concentrating, hypervigilance, exaggerated startle response, panic attacks, and fatigue from insomnia would cause him to be distracted throughout the workday. He would more likely than not be unable to produce a certain amount of work on a consistent and reliable basis, causing him to be unable to meet employer expectations of adequate pace and productivity. Regarding the Veteran's service-connected diabetic retinopathy with cataracts associated with diabetes mellitus type II, she explained that it has further contributed to his inability to meet employer expectations of adequate pace and productivity, as required in positions of even unskilled, sedentary employment. The records show that the Veteran has reported decreased visual acuity and having more difficulty reading. The vocational expert stated that the Veteran's decreased visual acuity and difficulty reading due to his service-connected diabetic retinopathy with cataracts associated with DM type II more likely than not contributes to his inability to meet employer expectations of adequate pace and productivity. She also noted that the Veteran's vision limitations would more likely than not slow his overall pace to an extent that would further contribute to his difficulty producing a certain minimum amount of work on a consistent basis. Finally, the vocational expert found that the Veteran is unable to secure and follow substantially gainful employment due to the combination of exertional limitations caused by his service-connected left shoulder condition, bilateral upper extremity peripheral neuropathy, and bilateral lower extremity diabetic polyneuropathy. She opined that the Veteran's limitations in gripping, grasping, writing, and fine motor manual dexterity due to his service-connected left shoulder condition and bilateral upper extremity peripheral neuropathy, in conjunction with his limitations in standing and walking due to his bilateral lower extremity diabetic polyneuropathy, have more likely than not precluded him from performing the full range of exertional demands of even sedentary employment on a consistent and reliable basis since at least March 2011. The Veteran's limitations in standing and walking due to his service-connected bilateral lower extremity diabetic polyneuropathy has more likely than not contributed to his inability to perform the full range of physical requirements of sedentary employment on a consistent and reliable basis as the medical evidence of record documents numbness and tingling in the bilateral lower extremities that interfere with his ability to stand and walk. She stated that his limitations and standing and walking, in conjunction with his inability to perform tasks requiring frequent and repetitive use of the bilateral upper extremities, more likely than not preclude him from performing the full range of physical requirements of sedentary employment basis. The vocational expert found that as sedentary employment is the lowest physical demand level, the Veteran's inability to perform the full range of physical requirements of sedentary employment on a consistent and reliable basis would preclude him from all competitive employment. The vocational expert concluded that while he possesses a certification in business administration and has previous work experience in sedentary skilled work, the Veteran's inability to meet the basic requirements of even unskilled work, as noted above, has eliminated his ability to work in any substantially gainful work environment from at least March 2011, and continuing to the present due to the combination off the Veteran's service-connected PTSD, diabetic retinopathy with cataracts, left shoulder condition, bilateral upper extremity peripheral neuropathy, and bilateral lower extremity diabetic polyneuropathy. The final determination with respect to the Veteran's entitlement to a TDIU is an adjudicatory, not a medical, function. In weighing the lay and medical evidence of record, as well as the Veteran's educational background and prior work experience, the Board finds that it is unlikely that the Veteran would have been able to find substantially gainful employment given his service-connected PTSD, diabetic retinopathy with cataracts, left shoulder condition, bilateral upper extremity peripheral neuropathy, and bilateral lower extremity diabetic polyneuropathy. The findings from the August 2021 vocational assessment supports the reasons why the Veteran cannot work based on his service-connected disabilities. The Board affords great probative weight to the findings of the vocational assessment report from August 2021. Specifically, the vocational counselor carefully and extensively recited to the relevant evidence, demonstrating that she had reviewed the Veteran's medical records, history, statements, and assertions. In assigning high probative value to this opinion, the Board notes that the counselor reviewed the records and fully supported her conclusions with specific citation to the record and expertise in rehabilitative counseling. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities in combination preclude him from engaging in substantially gainful employment from March 29, 2011. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.