Citation Nr: 21008558 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-40 997 DATE: February 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from September 11, 2015. FINDING OF FACT 1. The Veteran filed a claim seeking an increased rating for his right lower extremity (RLE) peripheral neuropathy (PN) on December 9, 2015; the Board, in a May 2020 decision, determined that an increased rating was factually ascertainable as early as September 11, 2015. 2. The Veteran’s TDIU claim was part and parcel of the Veteran’s RLE PN increased rating claim. 3. Since September 11, 2015, the Veteran had a combined disability rating of 80 percent, and since May 4, 2018, a combined disability rating of 90 percent, to include post-traumatic stress disorder (PTSD), rated 30 percent disabling (and increased to 50 percent disabling, effective May 4, 2018), RLE PN, rated 40 percent disabling, diabetes mellitus, type II, rated 20 percent disabling, femoral nerve PN of the RLE, rated 20 percent disabling, PN of the left lower extremity (LLE), rated 10 percent disabling, and femoral nerve PN of the LLE, rated 10 percent disabling, (and hearing loss and tinnitus, which were service connected May 4, 2018, rated 0 percent disabling and 10 percent disabling respectively). 4. The preponderance of the evidence shows that since September 11, 2015, the Veteran’s combined service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his work and education background. CONCLUSION OF LAW The criteria for award of a TDIU, effective September 11, 2015, have been met. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1964 through August 1968, to include service in the reserves. This comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) related to an increased rating claim for peripheral neuropathy of the right lower extremity (RLE). The subsequent Notice of Disagreement submitted in November 2016 for that claim included a statement from the Veteran indicating an intent to file for TDIU. Both matters came before the Board in May 2020, where the increased rating claim for peripheral neuropathy RLE was granted, effective September 11, 2015, and the TDIU claim was remanded to give the Veteran an opportunity to submit a Form 21-8940. That Form was received by the VA in July 2020, and the matter has since returned to the Board for appellate consideration. The Board finds there was substantial compliance with the May 2020 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from September 11, 2015 The Veteran contends that he is entitled to a TDIU because his service-connected disabilities in combination prevent him from working. The Veteran previously worked in labor, laying flooring, and restoring furniture among other physical jobs. The Board finds that the Veteran’s disabilities prevent him from continuing to pursue gainful employment that aligns with the Veteran’s skills, education, and job history. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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 C.F.R. § 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. The Board is cognizant of the Court’s holding in Ray v. Wilkie that the term “substantially gainful occupation” is not defined in the rating schedule and, therefore, typically, a TDIU analysis has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The Board finds the issue of TDIU was reasonably raised as part and parcel of the Veteran’s claim seeking an increased rating for his PN for the RLE, filed on December 9, 2015. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected). As noted in the introduction, the Board ultimately granted an increased rating, effective September 11, 2015, finding a factually ascertainable increase at that time. Thus, the Board will consider entitlement of TDIU from September 11, 2015. See id. From September 11, 2015, the Veteran met the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a). From September 11, 2015 to May 3, 2018, the Veteran’s service-connected disabilities included: PTSD, rated 30 percent disabling; peripheral neuropathy of the right lower extremity, rated 40 percent disabling; diabetes mellitus, rated 20 percent disabling; femoral nerve right lower extremity, rated at 10 percent disabling; peripheral neuropathy of the left lower extremity, rated at 10 percent disabling; femoral nerve left lower extremity, rated at 10 percent disabling, with a combined rating of 80 percent. It should be noted that the femoral nerve right lower extremity disability increased to 20 percent disabling as of December 9, 2015, but this increase did not impact the overall combined evaluation of 80 percent. From May 4, 2018 through the present, the Veteran’s service-connected disabilities include: PTSD, rated 50 percent disabling; peripheral neuropathy of the right lower extremity, rated 40 percent disabling; diabetes mellitus, rated 20 percent disabling; femoral nerve right lower extremity, rated 20 percent disabling; peripheral neuropathy of the left lower extremity, rated 10 percent disabling; femoral nerve left lower extremity, rated 10 percent disabling; tinnitus, rated 10 percent disabling; hearing loss, rated 0 percent disabling, with a combined rating of 90 percent. The Veteran completed 4 years of high school education prior to enlistment. He indicated on his enlistment paperwork that prior to the Marine Corps he worked in “labor” for several years. The Veteran also stated he had experience in “body and fender work” on the Veteran’s application for program of education or training in August 1974. During service, the Veteran worked in supply and administration and did not receive any vocational or education training. After leaving service, the Veteran continued to work manual labor jobs and supply administration, including as an operations manager at FedEx, restoring antique furniture, laying floors, and as a delivery driver. The Veteran’s exact work history timeline is not clear from the claims file, but it appears the Veteran’s last full-time employment was in 2006 restoring furniture, and that he has been working part time as a self-employed delivery driver for auto parts on and off since then. The Veteran’s physical disabilities include diabetes and diabetic neuropathy, peripheral neuropathy of both the right and left lower extremities, and a femoral nerve disability of both the right and left lower extremities, for the entire period on appeal. These particular disabilities, the Veteran contends, have prevented him from working in his previous manual labor positions. The Veteran has a history of falls, lower extremity weakness, tingling and numbness, and walks with a cane due to an irregular gait, all for the entirety of the period on appeal. The Veteran’s various VA examinations indicate trouble walking and that he is limited to sedentary activities, unable to participate in certain household chores or prior recreational activities including riding a motorcycle or doing yardwork. With regard to his PTSD, the Veteran reports panic attacks, sleep impairment, memory loss, difficulty adapting, hypervigilance, anger management and issues with authority, as well as trouble completing tasks. As indicated above, the Board must consider both the economic and non-economic components of substantial gainful employment. From an economic perspective, the Veteran stopped working full time on or around 2006. During the entire appeals period, the Veteran has either been retired and not working, or working part time as a self-employed delivery driver. The evidence shows the Veteran has no advanced training or degrees and worked in manual labor jobs since separating from active duty except for the FedEx management position, seemingly comparable to the supply administration work completed during service. The Board considered the physical and mental limiting factors caused by the Veteran’s service-connected disabilities as outlined above, to include limitations with labor-intensive activities, memory loss, and difficulty adapting to stressful circumstances, including issues with authority. As noted above, VA examiners throughout the appellate timeframe have indicated the Veteran would be capable of “sedentary employment.” In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of “sedentary employment.” Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, “the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran’s education, training, and work history.” Id. at 149-150. In the Veteran’s case, his work history largely involved physically active work. Although the Veteran has some work experience in jobs that may require less physical labor, such as management and supply administration work, the Veteran’s PTSD appears to be a significant hindrance to these types of jobs as well. The Board finds the evidence is, at a minimum, in equipoise of whether he could reasonably maintain substantially gainful employment in light of the combined effects of his physically limiting service-connected disabilities and his mentally limiting service-connected PTSD. As such, the Board will resolve reasonable doubt in favor of the Veteran. Entitlement to a TDIU, effective September 11, 2015, is granted. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Boivin, 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.