Citation Nr: 21009079 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 19-01 637 DATE: February 18, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1969, to include service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a TDIU. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). In February 2020, the Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In April 2020, the Board remanded the TDIU claim to obtain VA examination which includes an opinion on the effects of the Veteran’s service-connected disabilities on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Entitlement to a TDIU The Veteran seeks a TDIU, claiming that he has been unable to work as a result of his service-connected disabilities. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 38 C.F.R. § §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Here, the Veteran is service connected for other specified trauma and stressor-related disorder, rated as 30 percent disabling; type II diabetes mellitus (DM II), rated as 20 percent disabling; right lower extremity peripheral neuropathy associated with DM II, rated as 20 percent disabling; and left lower extremity peripheral neuropathy associated with DM II, rated as 20 percent disabling; his combined rating is 70 percent. The Veteran has met the criteria for a schedular TDIU set forth in section 4.16(a) as his disabilities have resulted from a common etiology, namely, DM II and associated bilateral lower extremity peripheral neuropathy. Thus, the next question for consideration is whether his service-connected disabilities prevent him from securing and following substantially gainful employment. The “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). For the following reasons, a TDIU is warranted. The Veteran last worked in around 2003 after spending about 23 years as a construction worker. Regarding education, the highest grade completed was 12th grade. In a December 2016 VA examination report, the examiner stated that the Veteran “could not be gainfully employed in a physical/labor type job” due to his service-connected bilateral lower extremity peripheral neuropathy associated with DM II. Pursuant to the Board remand, the Veteran underwent VA examinations in December 2020. Regarding his service-connected DM II, the examiner commented that the Veteran is unable to perform sedentary work as a result of the disability; she stated that “he has to carry snacks to maintain blood sugar for any job and to checks his BG accordingly daily for tight glycemic control on the job”. She also remarked that the Veteran “can work a job answering the telephone while sitting for not [more than two] hours a day.” The examiner opined that the Veteran cannot work and “is unemployable due to diabetic peripheral neuropathy of the lower extremities.” Moreover, she stated that he cannot walk more than 50 feet or stand more than ten minutes. Regarding the Veteran’s service-connected other specified trauma and stressor-related disorder, the examiner opined that he had significant difficulty remembering instructions and details of work assignments and that his sleep is so disrupted that he is usually fatigued at work, making concentration and focus on work assignments difficult. Taken together, the Board finds that the functional limitations caused by the Veteran’s DM II and associated bilateral lower extremity peripheral neuropathy, as well as his other specified trauma and stressor-related disorder have rendered him unable to secure or follow substantially gainful employment in light of his education and employment history. Therefore, entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(a). The Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an notice of disagreement is then of record as to the downstream issue of an effective date for the assignment of that rating.”) K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.