Citation Nr: 21007626 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-28 935 DATE: February 10, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU) is granted. FINDING OF FACT For the entirety of the appeal period, the evidence is at least in relative equipoise as to whether the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW For the entirety of the appeal period, the criteria for entitlement to a TDIU have been satisfied. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1966 to July 1969. The matter comes before the Board on appeal of a February 2017 rating decision. The Veteran filed a timely disagreement in May 2017 and requested a videoconference hearing. In September 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. Entitlement to a TDIU is granted Total disability will be considered to exist where there is present any impairment of mind and body that 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 the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 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 or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant 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 can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran filed his claim for a TDIU in February 2015. Service connection has been in effect throughout the appeal period for multiple disabilities. Since August 5, 2014, the Veteran has been in receipt of a combined rating of 70 percent and for post-traumatic stress disorder (PTSD) alone at a rating of 50 percent. Subsequently, the Veteran’s combined rating increased to 90 percent effective February 11, 2016, including a rating of 60 percent for atherosclerotic cardiovascular disease. Accordingly, for the entirety of the period under review, the Veteran has met the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). The key question at issue is whether the Veteran’s service-connected disabilities, in and of themselves, have at least as likely as not, rendered the Veteran unable to secure or follow gainful employment at any time during the period under review. The evidence of record supports a finding that the Veteran’s service-connected disabilities, including PTSD, diabetes mellitus, and peripheral neuropathy, at least as likely as not prevent him from obtaining or maintaining substantially gainful employment for the entire period on appeal. As an initial matter, the Veteran reported on his application for a TDIU that he last worked full-time, and he became too disabled to work on June 6, 2009. See February 2015 VA Form 21-4192. He also reported that his most recent employment was as a food service worker. At his hearing, the Veteran explained that his last job had been in a nursing home and that he worked in the kitchen and delivered lunch to patients. He further testified that, prior to the nursing home job, he worked as a teletype operator, at a bank as a teller, and also in real estate. See September 2020 Hearing Transcript. His employer completed a statement confirming his last day of employment was June 6, 2009, at which he retired on disability. See February 2015 VA Form 21-4192. There is no evidence that the Veteran has worked since June 2009. The Veteran contends that all of his disabilities interfere with his ability to perform routine tasks and that he is unable to obtain and sustain gainful employment. See May 2017 VA Form 9. The Board notes that the Social Security Administration awarded the Veteran disability benefits effective June 16, 2009, but that the primary diagnosis upon which the disability determination was based was a back disorder. See Social Security Administration Disability Determination. However, as discussed below, medical findings from VA examiners, in conjunction with the Veteran’s own subjective lay statements, have revealed that the Veteran’s numerous service-connected disabilities severely impact his ability to function. In a statement provided in October 2015, the Veteran’s VA treating psychiatrist noted the Veteran’s diagnoses of PTSD and major depressive disorder (MDD). The doctor noted that the Veteran experiences psychiatric symptoms including intrusive memories, flashbacks, nightmares, hypervigilance, isolating behaviors, difficulty with frustration tolerance, irritability, and sadness. The doctor further noted that as a result of these symptoms, combined with the Veteran’s several poorly-controlled medical comorbidities, including service-connected diabetes mellitus and peripheral neuropathy, the Veteran would not be a good candidate for employment at that time. See October 2015 statement. The record includes an opinion provided following a May 2016 examination noting that the Veteran’s diabetic peripheral neuropathy does not impact his ability to work, but that it may limit prolonged standing, walking, and stair climbing. See May 2016 Diabetic Sensory-Motor Peripheral Neuropathy DBQ. The record also includes an opinion provided following a July 2016 examination indicating that the Veteran’s heart condition had no impact on his ability to work, but did document complaints of fatigue and shortness of breath on exertion. See July 2016 Heart Conditions DBQ. Following an April 2018 VA examination, another examiner opined that the Veteran’s diabetes mellitus and diabetic peripheral neuropathy impacted the Veteran’s ability to work and that his symptoms resulted in a loss of productivity and function, preventing activity while he is having an acute episode. The examiner further opined that the Veteran’s recurrent paresthesias of both his upper and lower extremities are disruptive. See April 2018 Diabetes Mellitus DBQ; see also April 2018 Diabetic Peripheral Neuropathy DBQ. During his hearing, the Veteran testified credibly that he cannot stand or sit too long and that his hands and legs go numb. He testified that he has problems gripping and maneuvering things with his hands due to his peripheral neuropathy. He testified that he has to stay calm and not do anything strenuous due to his heart. He testified that he uses a cane to walk due to balance issues and that he has fallen several times. With respect to his mental disability, he testified that he has sleep issues, fatigue, difficulty focusing and concentrating, and difficulty remembering due to his PTSD. He further testified that he has trouble with relationships with people due to being confrontational. See September 2020 Hearing Transcript. Based on the foregoing, the Board finds that the evidence is at the very least in equipoise that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities—in particular, his PTSD, diabetes and peripheral neuropathies. The relevant examination reports of record show that the Veteran has physical limitations that would preclude prolonged standing or walking. The Veteran has testified credibly that his combination of mental and physical service-connected disabilities cause serious employment limitations, particularly with respect to his ability to sit or stand for extended periods, problems with balance, numbness in his hands and feet, fatigue, and difficulties with concentration, memory, and getting along with others. After considering the Veteran’s total service-connected disability picture, coupled with the Veteran’s work history and education, the Board finds it is at least as likely as not that the Veteran’s service-connected disabilities collectively render him unable to secure or follow gainful employment for the entirety of the appeal period. As such, the Board finds that TDIU is warranted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Fulmer, 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.