Citation Nr: 21007313 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-01 380 DATE: February 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to May 15, 2017, is denied. FINDING OF FACT For the period prior to May 15, 2017, the competent evidence does not demonstrate that the Veteran’s service-connected disabilities alone render him unable to secure or follow a substantially gainful occupation, commensurate with his education and employment background. CONCLUSION OF LAW For the period prior to May 15, 2017, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from April 1968 to March 1970. The Board previously remanded this case for additional development in May 2018. The matter has now returned to the Board for appellate review. It was then noted, and evidence currently shows that a 100 percent combined schedular rating was assigned May 15, 2017. As such, the question of a total rating for the appeal period prior to that grant remains at issue. Entitlement to a total disability rating based on individual unemployability prior to May 15, 2017. The Veteran contends that he is unable to secure or follow substantially gainful employment as a result of the collective impact of his service-connected disabilities for the time period in question. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2018). In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating 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, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16 (a). When considering whether the Veteran’s disabilities meets this requirement, disabilities resulting from a common etiology or single accident will be considered as one disability. Id. Prior to May 15, 2017, the Veteran was service-connected for renal insufficiency with hypertension associated with diabetes mellitus at (rated as 30 percent disabling as of June 15, 2005 and as 60 percent disabling as of February 22, 2011); peripheral neuropathy right upper extremity associated with diabetes mellitus (rated at 40 percent disabling as of May 9, 2011); peripheral neuropathy right lower extremity associated with diabetes mellitus (rated at 20 percent disabling as of May 9, 2012 and as 40 percent disabling as of October 16, 2019); peripheral neuropathy left lower extremity associated with diabetes mellitus (rated as 20 percent disabling as of May 9, 2009, and as 40 percent disabling as of October 16, 2019); peripheral neuropathy left upper extremity (rated as 30 percent disabling as of May 9, 2012); coronary artery disease (rated as 30 percent disabling as May 15, 2017); peripheral neuropathy left lower extremity associated with diabetes mellitus (rated as 10 percent disabling as of December 10, 2001 and as 20 percent disabling as from July 27, 2005 to May 9, 2012); peripheral neuropathy right lower extremity associated with diabetes mellitus (rated as 10 percent disabling as of December 10, 2001 and as 20 percent disabling as from July 27, 2005 to May 9, 2012); diabetes mellitus (as 20 percent disabling as of September 4, 1996 and as 20 percent disabling as of October 7, 2019); peripheral neuropathy right upper extremity associated with diabetes mellitus (rated as 10 percent disabling from July 27, 2005 to May 9, 2012); peripheral neuropathy left upper extremity associated with diabetes mellitus (rated as 10 percent disabling from July 27, 2005 to May 9, 2012); bilateral cataracts (rated as 10 percent disabling from October 7, 2019); and erectile dysfunction (rated as noncompensable from February 28, 2011). From May 15, 2017, the Veteran is service-connected for coronary artery disease at a 30 percent rating. The Veteran’s claim for a TDIU was received by the Regional Office on May 9, 2012. For the period from May 9, 2012 to May 15, 2017, the Veteran has a combined rating of 90 percent, and for the period from May 15, 2017, the Veteran has a combined rating of 100 percent. Thus, from May 9, 2012, the Veteran met the minimum percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16 (a). What remains to be determined is whether the Veteran’s service-connected disabilities rendered him unemployable, for the period prior to May 9, 2012 to May 15, 2017. For the Veteran to prevail in a claim for TDIU, the evidence must show that the Veteran was unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In his May 2012 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full time as a clerk for the U.S. Postal Service in March 2012. He claimed to have stopped working full time due to his service-connected disabilities in March 2012. The Veteran reported that he had completed high school. He further reported that he had not tried to obtain employment since becoming too disabled to work. In response to a VA request, the Veteran’s former employer reported that the Veteran started his employment in October 1980 and ended his employment in July 2012. The employer reported that the Veteran worked as a mail processing clerk. Further, the employer reported that the Veteran’s employment ended due to the Veteran’s retirement from the U.S. Postal Service. In May 2012, the Veteran was afforded a VA examination for his peripheral neuropathy. At the time of the examination, the examiner noted that the Veteran’s disability would have significant effects on his occupation. Specifically, that the Veteran had decreased manual dexterity, decreased strength in the upper extremity, and lower extremity pain. The examiner indicated that the resulting work problem would be an increase in absenteeism. However, in an October 2012 VA examination, the examiner specifically found that the Veteran’s diabetic peripheral neuropathy in all four extremities impaired the Veteran’s ability to perform occupational tasks that required standing, walking, or climbing. Moreover, the examiner found that a number of the Veteran’s non-service-connected disabilities would significantly hinder his ability to work; namely, the Veteran’s degenerative joint disease of the bilateral knees, bilateral hand deformity, degenerative joint disease of the left shoulder, and lumbar spondylosis. Further, additional VA examinations in October 2012 for the Veteran’s erectile dysfunction, kidney disorder and eye disorder, indicated that these conditions did not impact the Veteran’s ability to work. In a September 2013 private opinion from Dr. F.N.A., the doctor opined that based upon the Veteran’s medical problems, he would not be able to participate in any gainful employment. Specifically, the doctor explained that due to the Veteran’s chronic back pain, he could not do prolonged sitting, standing, bending, pushing, pulling, or heavy lifting, and the Veteran needed a cane for ambulation. Also, in December 2014, Dr. F.N.A. submitted another private opinion in support of the Veteran’s claim. The doctor set forth the Veteran’s medical problems, including chronic low back pain, arthritis, leg swellings, diabetes mellitus, hypertension, sleep apnea, morbid obesity, chronic atrial fibrillation, chronic kidney disease, limited mobility, and gout. Consequently, the doctor opined that the Veteran should be considered for disability. In May 2017, the Veteran had a VA examination with respect to his heart disability. At the time of the examination, the examiner determined that the Veteran’s heart disability did not impact his ability to work. Another VA examination in October 2019, further supported that the Veteran’s heart disability did not impact his ability to work. Specifically, the examiner explained that the Veteran’s heart disability alone, without regard to advanced age, non-service connected disabilities, or mental health issues, rendered the Veteran able to perform the following in a normal 8 hour workday: at least light work (METs 5-7). Likewise, the Veteran had a series of VA examination in October 2019 for his eye disability, diabetes mellitus, and erectile dysfunction. In each of these VA examinations, the examiner stated that these disabilities did not impact the Veteran’s ability to work. Further, in an October 2019 VA medical opinion considered whether the Veteran’s service-connected disabilities alone, without regard to advance age, non-service-connected disabilities or mental health issues, prevented him from working. The examiner opined that the Veteran was able to perform sedentary work, exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, and pull, during a normal 8 hour workday. The examiner explained that sedentary work involved sitting most of the time but might involve walking or standing for brief periods of time; jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. In September 2020, a VA examination was conducted with respect to the Veteran’s kidney disability, to include a separate examination for urinary incontinence. At the time of the kidney examination, the examiner determined that this disability did not impact the Veteran’s ability to work. However, the examiner for the Veteran’s urinary incontinence found that the Veteran’s bladder disability impacted his ability to work. Specifically, the examiner noted that the Veteran must stop and rest when he has pain in his flank secondary to renal stone. Further, the examiner explained that the Veteran stays hydrated to prevent stone formation and keep his kidneys working better and he would need to use the restroom often. In light of the above, the Board finds that the cumulative effects of the Veteran’s service-connected renal insufficiency with hypertension associated with diabetes mellitus; peripheral neuropathy right upper extremity; peripheral neuropathy right lower extremity; peripheral neuropathy left lower extremity; peripheral neuropathy left upper extremity; coronary artery disease; diabetes mellitus; bilateral cataracts; and erectile dysfunction did not render him unable to secure or follow a substantially gainful occupation for the period prior to May 15, 2017. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Thus, the Board finds that the evidence of record does not support the grant of TDIU for the period prior to May 15, 2017. Notably, the competent medical evidence does not support a conclusion that the Veteran’s service-connected disabilities alone precluded him from obtaining or maintaining gainful employment during this time. Importantly, while the May 2012 VA examination found that the Veteran’s peripheral neuropathy impacted the Veteran’s ability to work based on the Veteran’s subjective reports of pain, the October 2012 VA examination concluded that the Veteran’s ability to work was most impacted by his non-service-connected disabilities. Although the private opinions from September 2013 and December 2014 indicated that the Veteran’s disabilities impacted on the Veteran’s employability, the examiner did not distinguish between the Veteran’s service-connected and non-service-connected disabilities. Likewise, the VA examinations of October 2019 consistently report across all reviewed disabilities that the Veteran’s service-connected disabilities did not impact his ability to work. Although the Veteran believes that he could not secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the more persuasive medical evidence is against the claim. The Board notes that, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as whether he can secure or follow a substantially gainful occupation as a result of service-connected disability. See, Davidson v. Shinseki, 581 F.3d 1313 (2009). Any probative value of the Veteran’s own conclusions is far outweighed by that of the competent medical evidence that indicates his service-connected disabilities were not productive of impairment that would rise to the level of unemployability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board acknowledges the functional effects of the Veteran’s service-connected disabilities as reflected by his overall 100 percent schedular evaluation as of May 15, 2017. The Board also acknowledges the Veteran’s reported symptoms of fatigue, pain, and limited mobility during this time. However, after considering the totality of the record, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation commensurate with his work and education history. While those disabilities which were service-connected did have functional impairment which affected his ability to work, they did not alone render him unemployable. Therefore, the Veteran is not entitled to a TDIU evaluation for the period prior to May 15, 2017. In making its determination, the Board considered the applicability of the benefit of the doubt doctrine. 38 U.S.C. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet.   App. 49, 53 (1990). However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to a TDIU for the period from May 9, 2012 to May 15, 2017, the doctrine is not applicable in the instant appeal and the claim must be denied. Id. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.