Citation Nr: A21019171 Decision Date: 12/01/21 Archive Date: 12/02/21 DOCKET NO. 210330-149990 DATE: December 1, 2021 ORDER Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1962 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision by an Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) and selected the hearing docket. The Veteran testified at a November 12, 2021, virtual hearing held before the undersigned. This decision is being rendered prior to the production of a transcript of that hearing; given the favorable outcome, the Veteran is not prejudiced. Additionally, though the Veteran has 90 days from the date of the hearing to submit additional evidence, he has waived such to facilitate this decision. The January 2021 Supplemental Claim decision indicated that new and relevant evidence was needed to consider the merits of the claims, and that such was not received. However, as the AOJ did proceed to consider the merits of the claims, the Board has characterized the issues to reflect receipt of new and relevant evidence, and direct appeal of the underlying service connection claims to the Board. 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. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Marginal employment or employment in a protected environment is not considered substantially gainful employment. Factors to be considered in determining entitlement to a TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § 4.16(a). Basic eligibility for TDIU is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. The Board finds that the Veteran meets the criteria for a TDIU on a schedular basis, as his combined evaluation is 70 percent and his diabetes (with complications) combine to 40 percent or more. These are considered to be a "single disability" for TDIU purposes. 38 C.F.R. § 4.16(a). The evidence demonstrates that a combination of the Veteran's service-connected disabilities renders him unable to secure or follow a substantially gainful occupation. In addition to his service-connected diabetes mellitus, diabetic peripheral neuropathy of the bilateral upper and bilateral lower extremities, the Veteran also is service connected for residuals of left kidney removal. At his hearing, the Veteran testified that he has been extremely fatigued since kidney removal. He has no energy and would need to take extra breaks during his shift to endure it. He reported that he is drained. The Veteran also testified that his peripheral neuropathy is a major source of his unemployment. He testified to experiencing constant pain and flares at times. He testified that he has safety concerns when driving including pushing the pedals too hard or not hard enough. The Veteran reported that although at some points VA characterized him as a goat farmer, he in fact had very few goats and was not raising them commercially. Further, walking 120 or so feet to his barn to feed the livestock was beyond his physical abilities some days. The Veteran has his commercial driver's license and his GED, as well as some courses in business. He reported that walking around in an office, even on a limited basis, would be difficult, and he did not have any particular office skills. Considering the combination of the Veteran's service-connected disabilities, his limited functioning, and his education and skills, the Board finds that entitlement to a TDIU is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.