Citation Nr: 21008340 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 14-19 882A DATE: February 16, 2021 ORDER Entitlement to an effective date prior to December 19, 2016 for the award of a total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT Prior to December 19, 2016, the Veteran’s service-connected disabilities were not shown to preclude him from obtaining and maintaining substantial gainful employment. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to December 19, 2016 for the award of a total disability rating due to individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5103A, 5107, 5110; 38 C.F.R. §§ 3.340, 3.400, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1968 to June 1971, including combat service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied entitlement to TDIU. The Veteran testified at Board hearings in December 2017 and May 2018. As there were two hearings by two separate Veterans Law Judges (VLJs) on the issue on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In August 2018, the Veteran was given the opportunity to have a third hearing for the issue of entitlement to a TDIU. Initially, he indicated that he wanted a third hearing but then in November 2018 he indicated that he wanted to waive his “third appeal.” As it was unclear whether the Veteran was waiving his right to a third hearing, the Board sent another letter to him in February 2019. The February 2019 letter stated, in part, that if the Veteran does not respond within 30 days from the date of the letter then the Board will assume that the Veteran does not want a third hearing. The Veteran did not respond to the letter. As such, the Board finds that the Veteran waived his right to a third hearing. In an April 2019 panel decision, the Board remanded the claim for TDIU, finding that it was inextricably intertwined with a claim for service connection for anemia. In a July 2020 rating decision, the RO granted service connection for anemia and entitlement to TDIU. In a July 2020 supplemental statement of the case, the RO explained that an effective date of December 19, 2016 had been granted for the TDIU award and that an effective date prior to December 19, 2016 continued to be denied. Entitlement to an effective date prior to December 19, 2016 for the award of a TDIU. A total disability rating for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU will be granted when the evidence shows that the veteran, due to his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. On March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to this date, the amendments are not applicable and the regulations in effect prior to March 24, 2015 will be applied. Under these regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). In a December 2012 claim for a TDIU, the Veteran reported that he worked full-time as a train engineer for a mining company from September 1979 to May 2012 and that his highest monthly gross earnings while employed were $3000 per month. He also indicated that he had completed one year of college education. Prior to December 19, 2016, the Veteran’s service-connected disabilities included diabetes, rated 20 percent disabling; peripheral neuropathy of the left lower extremity, rated 20 percent disabling; peripheral neuropathy of the right lower extremity, rated 20 percent disabling; peripheral neuropathy of the right upper extremity, rated 10 percent disabling; peripheral neuropathy of the left upper extremity, rated 10 percent disabling; and pes planus, rated noncompensable. The combined rating for the disabilities as of May 16, 2006 was 60 percent. Effective December 19, 2016, the Veteran was also awarded service connection for diabetic nephropathy, rated 80 percent disabling; and anemia, rated 10 percent disabling. Effective December 19, 2016, his combined disability rating was 90 percent, and TDIU was awarded this date. Notably, the 60 percent combined rating assigned prior to December 19, 2016 involved disabilities that all stemmed from a common etiology, the Veteran’s service-connected diabetes. Thus, for purposes of evaluating the appeal for an earlier effective date prior to this date, the Veteran had one disability rated at least 60 percent and met the schedular criteria for assignment of a TDIU rating. See 38 C.F.R. § 4.16(a). In a December 2013 response for a request for employment information, the Veteran’s former employer indicated that the Veteran earned approximately $43,000 in his last year of work. The employer also indicated that the Veteran retired from his position due to stress, PTSD and having a position that involved prolonged standing. The Board notes that the Veteran is not service connected for PTSD, and the impact of such cannot be considered. At a December 2013 VA examination, the Veteran was diagnosed with bilateral lower extremity peripheral neuropathy and noted to be reporting symptoms of bilateral upper extremity neuropathy. The Veteran indicated that he had mild intermittent pain and moderate paresthesias and/or dysesthesias of the bilateral lower extremities and mild intermittent pain and paresthesias and/or dysesthesias of the upper extremities. Physical examination showed decreased sensation to the ankle/lower leg and foot/toes bilaterally and decreased vibration sensation in the lower extremities bilaterally. The examiner noted that the Veteran reported he electively retired in May 2013. He had been a locomotive engineer for 31 years, working in private industry. The examiner found that the Veteran’s peripheral neuropathy in the bilateral lower extremities would not preclude him from performing light duty work or sedentary employment. The examiner noted that employment duties requiring prolonged standing or walking were to be avoided due to his symptomatology. The examiner did not find any objective evidence of upper extremity neuropathy on examination. At an October 2016 VA contract examination, the examiner diagnosed the Veteran with peripheral neuropathy. The Veteran reported that he began noticing problems with his feet while working as a flagman in the early 1980s. Later, he was promoted to engineer, and his condition worsened over a 20-year period, which involved constant climbing. He noted that eventually he had to file for retirement as his condition had gotten worse, in that his pain had increased and his legs were weaker. The Veteran reported current moderate paresthesias and/or dysesthesias in his bilateral lower extremities and moderate numbness in his bilateral lower extremities. Examination showed decreased cold sensation in the bilateral lower extremities. The Veteran was also noted to have trophic changes attributable to diabetic peripheral neuropathy, which were described as discoloration and darkening of the bilateral lower legs, noted along with shiny skin and loss of hair. The examiner commented that the impact on the Veteran’s ability to work was that he had difficulty standing, walking or climbing stairs for a prolonged time, which affected occupational tasks that were routinely performed in the type of work in which he had been engaged. At a May 2017 VA examination, the Veteran was diagnosed with diabetes, diabetic peripheral neuropathy, diabetic retinopathy and diabetic nephropathy. It was noted that the Veteran had not had progressive unintentional weight loss and loss of strength attributable to diabetes. The examiner commented that the Veteran’s diabetes had left him weaker over the years. He was currently unable to walk greater than ¼ mile or stand for greater than 20 minutes due to diabetic peripheral neuropathy causing significant pain in both his feet. Also, the recent discovery of significant diabetic nephropathy was going to result in the placement of an AV fistula in his left arm for future dialysis. At a separate May 2017 VA examination, the Veteran was diagnosed with diabetic peripheral neuropathy of the lower extremities. The Veteran currently had bilateral pain and burning in both feet and was taking gabapentin to help control the pain. He reported moderate lower extremity intermittent pain, moderate paresthesias/dysesthesias and mild numbness. Physical examination showed mildly reduced muscle strength on knee extension, decreased sensation in the foot/toes on light touch/monofilament testing, decreased vibration sensation of the lower extremities. The examiner described the functional impact of the Veteran’s diabetes and diabetic peripheral neuropathy as him having put on significant weight with concomitant weakness and his diabetic neuropathy limited him to walking ¼ mile or less and standing at one time to 20 minutes or less. At a December 2017 Board hearing, the Veteran testified that he felt swelling in his feet and reduced strength in his legs made it difficult for him to work. He indicated that he was losing circulation in his legs. He also indicated that he had a problem with frequent hypoglycemia from his diabetes. He noted that he felt a tingling in his tongue, his eyesight would get a little blurry, and he would feel weak. He reported that he kept a piece of candy with him, which he would eat if he felt his blood sugar dropping. He also noted that on a few occasions, his wife had called 911 because of his drop in blood sugar and that when the emergency personnel arrived on the scene, they administered a solution to quickly raise his blood sugar. Additionally, the Veteran testified that he did not complete 20 years working as a train conductor because toward the end of his time working, he could not concentrate well enough to perform his job duties. Also, the job involved a lot of going up and down stairs to get in and out of the caboose. At a May 2018 Board hearing, the Veteran reiterated that toward the end of his time working as a train engineer, he had difficulty with climbing up and down from the train and he also had difficulty with concentration due to the medication he had to take for his service-connected diabetes/diabetic peripheral neuropathy. In a July 2020 rating decision, the RO granted entitlement to TDIU, assigning the effective date of December 19, 2016. The RO noted that with the addition of diabetic nephropathy and anemia as service-connected disabilities effective December 19, 2016, the evidence indicated that as a result of a combination of his service-connected disabilities, the Veteran was unable to secure or follow a substantial gainful occupation. The above summarized evidence indicates that the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantial gainful occupation prior to December 19, 2016. The Board notes that although it appears the Veteran may have not been able to continue to perform his train engineer job when he retired in May 2012, it does not show that he would have not been able to perform a less strenuous job at that time. In this regard, prior to December 19, 2016, the primary service-connected disability causing interference with employment was the Veteran’s bilateral peripheral neuropathy. However, at the December 2013 VA examination, the examiner found this disability would not preclude sedentary or light duty work and noted only that employment duties requiring prolonged standing or walking were to be avoided due to his symptomatology. There is no specific evidence to the contrary (i.e. evidence specifically tending to indicate that the Veteran would have been unable to perform light duty or sedentary work prior to December 19, 2016). Notably, the Veteran was also service connected for diabetes and upper bilateral peripheral neuropathy prior to December 19, 2016. However, the evidence does not show that these disabilities would have precluded him from performing sedentary or light duty work during this period, either alone or in combination with the lower extremity peripheral neuropathy. In this regard, the medical evidence indicates that the Veteran’s symptoms of upper extremity radiculopathy were of only mild degree during this time frame. Also, while the Veteran testified at hearing that he has had some significant diabetic episodes involving his wife calling 911, the evidence of record does not show any such episodes prior to December 19, 2016 during the appeal period. Additionally, the Veteran’s former employer did not cite any such symptomatology as the reason the Veteran retired. Moreover, the Veteran has not reported that his diabetes, in and of itself, impaired his ability to perform his train engineer job. The Veteran did testify that the medications he was taking for his service-connected disabilities affected his concentration on the job, which could have potentially created a damaging situation with the train he was operating. However, there is no indication that the Veteran’s concentration was so impeded prior to December 19, 2016 that he would not have been able to perform a simpler job (i.e. not involving such a complex instrumentality that could potentially cause significant damage if mis-operated) of a sedentary or light duty nature. Also, more generally, subsequent to the award of the TDIU rating with assigned effective date of December 19, 2016, neither the Veteran nor his representative have provided any specific argument asserting that an earlier effective date is warranted or submitted or identified any additional evidence that they feel tends to indicate that an earlier effective date is warranted. In sum, considering all documentation of record, the evidence does not establish that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantial gainful occupation prior to December 19, 2016. The preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. §§ 3.102, 3.400, 4.16(a). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.