Citation Nr: 21009272 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-14 475 DATE: February 22, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his service-connected diabetes mellitus type II and the diabetic complications of peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, rendered him unable to obtain or maintain a substantially gainful occupation. CONCLUSION OF LAW The criteria for establishing entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5121A; 38 §§ C.F.R. 3.102, 3.340, 3.341, 3.1010, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1964 until his honorable discharge in June 1968, with service in the Republic of Vietnam. The Veteran died in September 2020. The Appellant is the Veteran’s surviving spouse. Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran’s outstanding service. The Veteran was clearly a credit to the United States Navy and to his family, and his service to his country is greatly appreciated. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the RO granted substitution status to the Appellant and recognized her as a substitute claimant for the Veteran for purposes of processing the pending claim to completion. Entitlement to a TDIU due to service-connected disabilities is granted. The Veteran maintained his service-connected disabilities, specifically, his diabetes mellitus type II and diabetic complications, rendered him unable to obtain and retain substantially gainful employment. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the Veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such 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. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The noneconomic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. The sole fact that a Veteran is unemployable or has difficulty obtaining employment is not enough. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.” Id. Substantially gainful employment is employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. 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 not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran met the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a) since August 9, 2011. The Veteran was service-connected for diabetes mellitus type II rated as 20 percent disabling, left upper extremity peripheral neuropathy rated as 20 percent disabling, right upper extremity peripheral neuropathy rated as 20 percent disabling, left lower extremity peripheral neuropathy rated as 20 percent disabling, and right lower extremity peripheral neuropathy rated as 20 percent disabling. The Veteran’s service-connected left lower extremity peripheral neuropathy was reduced from 20 percent disabling to 10 percent disabling effective April 30, 2013. Under § 4.16(a)(2) disabilities resulting from a common etiology are considered one disability for purposes of TDIU. Here, the “one disability” is a combination of disabilities that may be considered collectively because they result from a common etiology; the disabilities being (1) diabetes mellitus type II, (2) left upper extremity peripheral neuropathy, (3) right upper extremity peripheral neuropathy, (4) left lower extremity peripheral neuropathy, and (5) right lower extremity peripheral neuropathy. These five disabilities qualify as one collective disability for TDIU consideration purposes because they result from a common etiology (herbicide exposure). See 38 C.F.R. § 4.16. In pertinent part, the Veteran’s combined evaluation was 70 percent disabling from August 9, 2011 to April 30, 2013, and 60 percent disabling from April 30, 2013. The Veteran met the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a) on August 9, 2011. Thus, the issue before the Board is whether the Veteran had been unable to secure or follow a substantially gainful occupation because of his service-connected diabetes mellitus type II and the diabetic complications of peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. Upon review of the record, the Board finds TDIU is warranted. In a VA Form 21-8940 Application for Increased Compensation Based on Unemployability, the Veteran reported his diabetes and diabetic complications prevented him from securing or following any substantially gainful occupation. The Veteran reported completing two years of college. The Veteran stated his disabilities affected full-time employment in 2002 and he became too disabled to work in 2003. Regarding his occupational history, the record reflects the Veteran worked at the City of Liberty Fire Department for over thirty-one years; he was the Fire Division Chief. Thus, the record establishes the Veteran’s past occupational experience involves performing heavy work. There is no indication the Veteran ever engaged in another occupation. The medical evidence supports a finding of TDIU due to his service-connected diabetes mellitus type II and the diabetic complications of peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. The Veteran was afforded a VA diabetes mellitus examination in February 2014. The examination report reflects the Veteran’s diabetes mellitus was managed by a restricted diet and the use of oral hypoglycemic agents. His diabetes mellitus resulted in peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. The VA examiner remarked, though the Veteran has some weakness and neuropathy associated with his diabetes mellitus and would not be suitable for work requiring physical labor, he would still be able to perform sedentary work. In conjunction with the diabetes mellitus examination, a diabetic peripheral neuropathy examination was also completed in February 2014. The Veteran reported the numbness and tingling in his hands and feet was worsening. The examination report reflects the Veteran experienced moderate to severe pain, and moderate numbness and paresthesias and/or dysesthesias in both upper extremities. He also had decreased strength in both elbows and decreased light touch sensation in his hands and fingers. The Veteran experienced moderate pain, numbness, and paresthesias and/or dysesthesias in both lower extremities. He had decreased strength in both knees and ankles. He also had decreased deep tendon reflexes in both knees and ankles, decreased light touch sensation in his feet and toes, as well as decreased vibration sensation and cold sensation. The VA examiner remarked the Veteran had a generalized decrease in strength in all extremities. The VA examiner stated the Veteran would not be suitable for employment requiring physical labor but would still be suitable for sedentary work. In his March 2014 Notice of Disagreement, the Veteran stated his peripheral neuropathy of his lower extremities caused him considerable discomfort. He reported that if he sat too long his feet would go numb, get very tingly, and get very cold; upon standing he would have to wait until the feeling returned to his feet before he was able to walk. When jobs are not realistically within his or her physical and mental capabilities, a Veteran is determined unable to engage in a substantial gainful occupation. Moore, 1 Vet. App. 356. In making this determination, consideration may be given to factors such as the Veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. 361. The Board notes the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiner’s conclusions are not dispositive. However, the observations of the examiner regarding functional impairment due to the service-connected disabilities go to the question of physical or mental limitations that may impact the Veteran’s ability to obtain and maintain employment. Additionally, the Board affords significant probative value to the Veteran’s lay statements regarding the limitations caused by his service-connected disabilities. Upon review of all lay and medical evidence, and after affording the Veteran the benefit of the doubt, the Board finds the Veteran’s level of disability, given his education, training, and experience, would have rendered it impossible to the average person to obtain or retain substantially gainful employment of some type based solely on his service-connected diabetes mellitus type II and diabetic complications. Van Hoose, 4 Vet. App. at 363. Ultimately, the Board finds the Veteran’s peripheral neuropathy of the bilateral upper extremities resulted in his inability to lift, carry, push, pull, and perform gross and fine manipulation due to pain, numbness, paresthesias and/or dysesthesias in both upper extremities. Furthermore, the Veteran’s peripheral neuropathy of the bilateral lower extremities impaired his ability to stand, walk, climb, kneel, or squat due to pain, numbness, and paresthesias and/or dysesthesias in both lower extremities. His career work as a Fire Division Chief undoubtedly required heavy lifting and carrying, dexterous use of his hands, as well as the ability to stand, walk, and climb, for many hours at a time. Based on the foregoing, the Board finds the evidence of record is at least in equipoise on the question of whether the service-connected diabetes mellitus type II and the diabetic complications of peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities precluded the Veteran from securing and following substantially gainful employment for which he would otherwise have been qualified. The nature and severity of the Veteran’s diabetes mellitus type II and diabetic complications made it unlikely he would have been able to perform the duties required for an individual with his education and experience as a Fire Division Chief. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s service-connected diabetes mellitus type II and the diabetic complications of peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities prevented him from maintaining substantially gainful physical and sedentary employment. The Veteran’s claim for TDIU is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.