Citation Nr: 21073516 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-53 337 DATE: December 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. § 1155; 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1966 to July 1968. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in May 2017 of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing in December 2020. A copy of the transcript has been associated with the record. Entitlement to a TDIU Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38C.F.R. §3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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 service-connected disabilities. 38C.F.R. §4.16 (a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. The ultimate determination of whether a Veteran is capable of substantial gainful employment rests with the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 U.S.C. § 5103A (d)(1)) (the VA adjudicator has the ultimate responsibility for a TDIU determination and VA is not required in every case to obtain a single medical opinion regarding the combined impact of all service-connected disabilities). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service connected disabilities or the Veteran's advancing age. 38C.F.R. §§3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Beaty v. Brown, 6 Vet. App. 532, 538 (1994). A rating decision code sheet shows that, when the Veteran filed for a TDIU in December 2016 and since then, the Veteran has been service connected for: congestive heart failure associated with diabetes mellitus, rated at 30 percent; diabetic peripheral neuropathy of the left upper extremity, rated at 30 percent; type II diabetes mellitus, rated at 20 percent; diabetic peripheral neuropathy of the right upper extremity, rated at 20 percent; diabetic peripheral neuropathy of the right lower extremity, rated at 20 percent; diabetic peripheral neuropathy of the left lower extremity, rated at 20 percent; residuals of a shell fragment wound of the left upper extremity, rated at 10 percent; and shell fragment wound scar, diabetic nephropathy, and residuals of right foot fracture, each rated at 0 percent (noncompensable). The Veteran has had a combined 90 percent rating for the entire appellate period. For purposes of TDIU, multiple disabilities arising from a common etiology or single accident may be counted as a single disability. 38 C.F.R. § 4.16 (a). Here, throughout the period on appeal, the Veteran's diabetes mellitus, peripheral neuropathy of all extremities, and congestive heart failure are all of a common etiology; therefore, the service-connected disabilities of a common etiology support "one 40 percent disability in combination." Id; see 38 C.F.R. § 4.25 (combined ratings table). Therefore, he meets the threshold schedular eligibility requirements for TDIU. The question, then, is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. As explained in greater detail below, the Board concludes that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Turning to the evidence, in his application for a TDIU, he reported that he had completed four years of high school; however, in December 2020, he testified that he had an eighth-grade education. The Veteran was last gainfully employed in February 2016. He has work experience running an offshore boat as a captain. In his December 2016 TDIU application, the Veteran reported that he had been working 14 days on and 14 days off, but his service-connected disabilities made it too difficult to work 2 weeks straight, so he decided to retire. At an appointment in December 2016, the Veteran reported that he stopped working, in part, because of diabetes mellitus and foot and ankle pain. He also had low back pain and sleep apnea. In December 2016, the Veteran's treatment provider, F. C., wrote a letter in support of his claim. The Veteran's medical history included diabetes mellitus, residuals of a foot injury, nerve damage, diabetic nephropathy, and hypertension. He was "unable to work." The Veteran underwent a VA examination for peripheral neuropathy in April 2017. His symptoms from his shell fragment injury and his diabetic neuropathy included weakness in the left upper extremity, numbness and burning in both feet, and numbness in all four extremities. The examiner opined that the Veteran's nerve damage impacted his ability to work, but did not explain how. The Veteran was afforded a VA examination of his kidney disability in April 2017. The examiner explained that the Veteran had a renal cyst, but not diabetic nephropathy or proteinuria. The Veteran denied any kidney symptoms or problems. The examiner opined that the Veteran's kidney disability impacted his ability to work, but did not explain how. The Veteran underwent a VA examination of the heart in April 2017. His symptoms included intermittent feet swelling. He was noted to have had chest pain the previous year, but not on physical examination. The Veteran's heart was enlarged and heart rate slow. The Veteran's heart disability impacted his ability to work due to shortness of breath, chest pain, and fatigue on moderate exertion. The examiner opined that the Veteran could do light yard work. The Veteran was afforded a VA examination for diabetes mellitus in April 2017. The Veteran was taking oral medication for diabetes. The examiner noted that the Veteran's diabetes impacted his ability to work, but did not explain how. The Veteran testified at a Board hearing in December 2020. He testified that his neuropathy caused pain, numbness, and tingling in his arms and legs and hands and feet. He testified that his heart caused shortness of breath. The Veteran reported side effects of his medications, including fatigue, drowsiness, dizziness, and problems with coordination. In December 2020, the Veteran submitted another letter from his treatment provider, F. C., in support of his claim. F. C. explained that the Veteran had a foot injury, muscle injury, heart disease, a sciatic nerve injury, inflammation of all radicular nerves, diabetes mellitus, and renal involvement. The Veteran experienced pain in both legs and feet, which is attributable to service-connected disabilities. He was taking several prescription medications for pain, including muscle relaxers and gabapentin. F. C. opined that the Veteran was "no longer able to hold down employment." After reviewing the evidence, the Board concludes that a TDIU is warranted. The evidence shows that the Veteran has not been substantially gainfully employed since 2016. Moreover, his service-connected disabilities impact his ability to work. While the April 2017 VA examiner did not explain how each disability impacted the Veteran's ability to work, the conclusion was that they all do, and at least his heart disability impacts exertion, and his peripheral neuropathy causes pain and numbness in all extremities. Moreover, the Veteran testified to side effects when he takes his prescribed medications, and F. C. opined that the Veteran was unable to work. There is no evidence in the claims file that the Veteran has qualifications or experience that would allow him to work in a job that does not require physical exertion or in a job not requiring use of his arms and legs. In sum, the Board concludes that granting the Veteran's TDIU claim is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.