Citation Nr: 21009468 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 03-04 429 DATE: February 22, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. VETERAN’S CONTENTIONS The Veteran contends that his service-connected disabilities related to a fungal infection of the groin and feet preclude him from obtaining or maintaining a substantially gainful occupation. Specifically, the Veteran contends that he is unable to work due to difficulty ambulating. He further contends that he unable to wear regular shoes and socks because they disturb the infected areas of his feet. FINDING OF FACT The Veteran's service-connected conditions preclude him from obtaining or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1961 to April 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Pittsburg, Pennsylvania. This matter was previously before the Board at which times it was remanded for additional development. Entitlement to a total disability rating based on individual unemployability (TDIU) VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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 determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that the Veteran meets the schedular requirements for a TDIU. Service connection has been established for fungus infection of groin and feet (rated as 50 percent disabling); muscular atrophy of the right lower extremity associated with fungus infection of groin and feet (rated as 40 percent disabling); and a residual scar on the right lower leg associated with fungus infection of groin and feet (rated as 10 percent disabling). The Veteran's combined schedular rating is 70 percent. Thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). After reviewing the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). See also 38 U.S.C. § 5107. In this regard, the record reflects that the Veteran completed police academy training and earned a college diploma and special master’s degree in statistics/TQM used for law enforcement and governmental data assistance and training. Since service, the Veteran reported primary employment working in law enforcement. He became too disabled to work in 1992. Regarding his ability to obtain and maintain substantially gainful employment, the Veteran stated that he is unable to work due to difficulty ambulating. He further stated that he unable to wear regular shoes and socks because they disturb the infected areas of his feet. The Veteran is competent to report his own symptoms and work history and the Board finds his statements in this regard to be credible. In accordance with the Veteran's contentions, in a letter dated in July 2000, Dr. A.S. confirmed that the Veteran had been treated for open ulcerated bleeding, sores, and bullous lesions in his right foot and leg, as well as for severe irritation and edema in the groin area with extension to the rectum. With treatment, the edema and pain improved, but he continued to have moderate to severe eczema and pain, especially at his right ankle and upper foot area, which resulted in mobility problems. In July 2007, Dr. A.S. documented a continual 35-year medial history of jungle rot diagnosed in Vietnam, Tripoli, and Libya in the mid-1960’s; and also documented severe edema and pain, especially at the right ankle, causing difficulty in walking. In January 2010, a VA examiner noted that there was a difference of a half to one inch in diameter of the right leg in comparison to the Veteran’s left ankle/leg. In a March 2018 Muscle Injuries Disability Benefits Questionnaire, a VA clinician opined that the Veteran’s muscle injuries and peripheral nerve condition impact his ability to work in that he has difficulty standing on both feet and difficulty walking without support. The Board acknowledges that an October 2020 VA examiner determined that the Veteran's service-connected conditions do not impact his ability to work. The examiner explained that on review of relevant medical literature, the evidence remained silent for any limitation or restriction on one’s ability to interact with coworkers due to having a history of fungal infections of the groin and feet, as a fungal infection is a condition that can be eradicated by treatment with antifungal medication. The examiner went on to say that medical evidence additionally was silent for any limitation and/or restriction on one’s ability to sit, stand, walk, lift, carry, push and/or pull due to a fungal infection on one’s right foot, or of the groin. The examiner concluded by noting that there are preventative measures one can take, including keeping the feet and groin dry, wearing clean clothes, wearing properly fitting clothing, avoiding tight clothes, and not sharing personal items with others, such as towels, to keep fungal infections at bay or under control. The examiner additionally considered the Veteran’s muscle atrophy, and it’s impact on his ability to obtain and maintain substantially gainful employment, and concluded that the muscle atrophy in no way would result in any limitation and/or restriction on his ability to perform in the occupational environment with regard to such routine work activities as interacting with coworkers, sitting, standing, walking, lifting, carrying, pushing, and pulling. In support of this conclusion, the examiner cited medical literature noting that physiologic muscle atrophy was caused by “not using the muscle enough” and explained that such atrophy could be reversed by exercising and better nutrition. In addressing the Veteran’s particular muscle atrophy, the examiner expressed what appears to be mystification as to how a “fungus infection of the groin and feet,” that is, a topical condition treatable with antifungal medication and preventive measures, could possibly result in “muscular atrophy,” as medical literature was silent for muscular atrophy as a sequela of topical dermatophytosis diagnosed as “fungus infection of the groin and feet.” Lastly, the examiner addressed the notation of record regarding the Veteran’s unsteady gait, and concluded that the unsteady gait was due to a right hip surgery and associated polyneuropathy, and thus wholly unrelated to the Veteran’s fungal infection of the groin and feet. In reaching the various conclusions detailed above, the Board finds that the examiner’s review of the record was less than full, as the record clearly establishes that the Veteran’s fungal infections of the groin and feet have resulted in sequelae far more severe than considered by the examiner. Although typical fungal infections of the groin and feet may not interfere with employment, the Board observes that the infections the Veteran has experienced are not typical, and indeed have been productive of serious functional limitations not typically experienced with average fungal infections of the groin and feet. Thus, to the extent that the examiner implicitly concluded that the Veteran would be capable of working in a desk job, or even in a position that required physical exertion, the Board affords little probative weight to those conclusions, given the less than full file review conducted by the examiner, or her failure to consider the unique facts of the Veteran’s case, apart from the prevailing medical literature. Thus, after reviewing the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise with respect to the issue of whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. See Gilbert, 1 Vet. App. 54. See also 38 U.S.C. § 5107. In making this determination, the Board has considered the Veteran's level of education and his primary employment history of working in law enforcement, a position in which he was required to be on his feet and otherwise exert himself physically. As the Veteran lacks training and work experience in an administrative capacity, or other position suitable for “desk work,” the Board concludes that the record adequately supports the award of a TDIU in the Veteran’s case. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.