Citation Nr: 21074064 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-63 040 DATE: December 14, 2021 ORDER Entitlement to service connection for periodontal disease, as secondary to service-connected diabetes mellitus, type 2, is denied. From November 24, 2014, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Periodontal disease is not a disability for which compensation benefits are payable. 2. Resolving all reasonable doubt in his favor, the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for periodontal disease, as secondary to service-connected diabetes mellitus, type 2, for purposes of VA compensation have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161. 2. From November 24, 2014, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from May 2015 and March 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2021 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. The Veteran's claim for entitlement to service connection for periodontal disease, which is considered a dental disability, raises both the issue of service connection for compensation purposes and service connection for treatment purposes. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). A claim of entitlement to service-connection for a dental disability for treatment purposes only is separate and distinct from a claim of entitlement to service-connection for a dental disability for compensation purposes. 38 C.F.R. § 3.381. Because the Veteran has been awarded a TDIU as a result of this decision, he is now considered a member of Class IV for dental treatment purposes. Class IV renders him eligible for "any needed dental treatment." 38 C.F.R. § 17.161 (h). Thus, pursuing a claim for service connection for periodontal disease for purposes of dental treatment purposes only may prove redundant in this case. However, the claim for periodontal treatment is referred to the RO for any appropriate action. 38 C.F.R. § 19.9 (b). Specifically, the RO should consider whether to refer the claim for dental treatment to the appropriate VA Medical Center. If no additional benefit to the Veteran would result from such a referral, then referral is not necessary. 1. Entitlement to service connection for periodontal disease, as secondary to service-connected diabetes mellitus, type 2. The Veteran seeks entitlement to service connection for periodontal disease. He asserts his periodontal disease is secondary to his diabetes. Compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not disabilities for compensation purposes, but may be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. To establish entitlement to service connection for loss of a tooth, the Veteran must have sustained a combat wound or other in-service trauma. 38 U.S.C. § 1712; 38 C.F.R. § 3.381 (b). The significance of finding that a dental condition is due to in-service trauma is that a Veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161 (c). Medical evidence indicates that the Veteran had periodontal disease and all of his teeth have since been extracted. See October 2014 statement from Dr. R. The Veteran also submitted a medical opinion from Dr. R., dated July 2011. Dr. R. opined that the Veteran's diabetes was contributing to the severity of his periodontal disease and explained the relationship between diabetes and periodontal disease. Service treatment records indicate no history, complaints, or treatment for dental trauma reported by the Veteran during active service. The Board finds that service connection for periodontal disease for compensation purposes is not warranted. The service treatment records do not reflect in-service trauma to the Veteran's mouth. There is no legal entitlement to compensation benefits predicated upon service connection for periodontal disease. In cases such as this, where the law and not the evidence is dispositive, the claim should be denied because of the lack of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). There is no legal entitlement to compensation benefits predicated upon service connection for periodontal disease, therefore, the claim must be denied. The issue of eligibility for outpatient dental treatment for periodontal disease is referred to the appropriate VA Medical Center for a formal determination in the Introduction portion of this decision. 2. Entitlement to a TDIU. The Veteran seeks a TDIU. He contends his service-connected disabilities prevent him from physical work and he is unable to perform sedentary employment due to his vision problems. A TDIU may be assigned, where the schedular rating is less than total, where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a Veteran's ability to secure and follow such employment. Id. Attention should be given to the Veteran's history, education, skills, and training; whether the Veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a Veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: coronary artery disease, rated as 10 percent disabling from July 2005 and 60 percent disabling from November 2013; diabetic nephropathy with hypertension, rated 30 percent disabling from March 2013 and 60 percent disabling from December 2015; diabetes mellitus, type 2, rated 20 percent disabling from January 2004; diabetic neuropathy of the left foot, rated 10 percent disabling from January 2005 and 20 percent disabling from November 2014; diabetic neuropathy of the right foot, rated 10 percent disabling from January 2005 and 20 percent disabling from November 2014; tinnitus of the left ear, rated 10 percent disabling from March 1976; hypertension, rated 10 percent disabling from November 1976 to March 2013; diabetic retinopathy, rated 10 percent disabling from January 2005; scars of the third, fourth, and fifth fingers of the right hand, rated noncompensable from April 1971; and hearing loss of the left ear, rated noncompensable from February 1977. The Veteran has a combined rating of 70 percent from March 2013, and 90 percent from November 2013; as such, the Veteran meets the schedular requirements for a TDIU. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). For the reasons that follow, the Board finds that a TDIU is warranted. Regarding the economic component of TDIU, the Veteran indicated on his December 2015 VA Form 21-8940 that he has not been employed since August 2010. Thus, the economic component of TDIU is satisfied for the entire period on appeal. Regarding the non-economic component of TDIU, the record reflects the Veteran completed one year of college and that he last worked as a control room operator at a power plant. See, e.g., December 2015 VA Form 21-8940; January 2016 VA Form 21-4192. The Veteran was afforded a VA examination in February 2015 for his service-connected diabetic retinopathy. The examiner noted the Veteran had severe, nonproliferative diabetic retinopathy in both eyes. The examiner explained that the Veteran's bilateral eye disability is not suitable for driving with a commercial license, and the Veteran would find it difficult to perform tasks that require vision better than 20/50, which includes reading most standard printed material. He would also require additional lighting and magnification to complete tasks. Additionally, the Veteran will require frequent observation by a retinal specialist and treatments, which will require time away from work and recovery time following each procedure. The examiner stated that decline in vision and time away for recover can cause decrease in productivity and frustration for both the worker and employer. The Veteran was afforded a VA examination in February 2016. It was noted that the Veteran had severe numbness to the bilateral feet due to his diabetes. The examiner opined that the Veteran's diabetic peripheral neuropathy would prevent him from performing manual labor. Regarding his heart disability, it was noted that the Veteran experienced dyspnea and angina with activities such as walking one flight of stairs or using a push mower. The examiner opined that the Veteran's heart disability would prevent manual labor and mildly affect sedentary work. The Board finds the evidence indicates the Veteran's disabilities, particularly his heart disability and neuropathy of the feet, would prevent him from performing physically demanding work. Additionally, the evidence indicates that although he is likely qualified to perform less physically demanding work, such as an office/clerical position, he would have significant difficulty due to his service-connected bilateral eye disability. The Board finds that the Veteran's eye disability would affect the ability to type, write, or read in any type of clerical position. Thus, the Board is persuaded that a combination of the Veteran's service-connected disabilities precludes him from securing and maintaining substantially gainful employment. The Board finds that an effective date of November 24, 2014, the date of the Veteran's claim for an increased rating for his bilateral eye disability, which was decided in an April 2015 rating decision, is appropriate. The Veteran then submitted evidence of unemployment within one year of that rating decision, in the form of the TDIU application. See Rice v. Shinseki, 22 Vet. App. 447 (2009); November 2014 claim. As such, entitlement to a TDIU is granted, effective November 24, 2014. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.