Citation Nr: 21009971 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 20-04 446 DATE: February 23, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran meets the schedular criteria for TDIU, and his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1958 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes this decision was issued prior to the effective date of the modernized review system. See 38 C.F.R. §§ 3.2400(a)(1), 19.2(a). The Veteran subsequently perfected an appeal to the Board as to the issue of entitlement to a TDIU under the Legacy appeal system. Entitlement to a TDIU The Veteran contends he is unable to work due to his service-connected disabilities. For the following reasons, the Board agrees that entitlement to a TDIU is warranted. The Veteran is service connected for residuals of a left ankle fracture (rated as 30 percent disabling); ischemic heart disease, coronary artery disease, and cardiomyopathy (30 percent disabling); diabetes mellitus, type 2 (20 percent disabling); peripheral neuropathy of the right lower extremity associated with diabetes mellitus, type 2 (20 percent disabling); irritable duodenal cap with no ulceration and residuals of infectious hepatitis (10 percent disabling); peripheral neuropathy of the left lower extremity associated with diabetes mellitus, type 2 (10 percent disabling); hemorrhoids (noncompensable); and peripheral vascular disease (noncompensable). His combined rating for these disabilities is 80 percent. Because his diabetes and peripheral neuropathy result from a common etiology, the Veteran meets the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a) (to qualify for TDIU, the evidence must show that a veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent). The remaining question is whether these disabilities have rendered him unable to secure and follow a substantially gainful occupation. The evidence of record shows that the Veteran has not been gainfully employed at any point during the appeal period. In a May 2019 statement, he reported that he had not been able to work for the past 25 years. He stated he had a BS and worked in the food service industry for many years after his discharge from the Marine Corps. After that, he worked as vice president of operations at a restaurant for about five years, and then opened a pawn shop in the mid-1990s which he was forced to close because of his medical problems. The Veteran asserted that his neuropathy and ankle disability hampered his mobility, and that his diabetes and heart condition restricted any physical activity. He reported suffering from pressure in his chest and shortness of breath, and stated he became extremely fatigued after walking only a few blocks. He also described suffering from dizzy spells. The Veteran explained that he had permanent, chronic pain in his ankle and neuropathy. A September 2018 Disability Benefits Questionnaire (DBQ) reflects a physician’s finding that the Veteran’s left ankle disability prevented him from walking long distances; caused permanent pain; and frequently became inflamed. In May 2019, the Veteran submitted an assessment from a private vocational expert. The evaluation reflects the expert’s conclusion that although the Veteran’s work history consisted of skilled jobs, it was “completely unlikely that he would be able to utilize any of his obtained skills due to the serious nature of his service-connected disabilities and symptoms.” The expert concluded the Veteran had significant physical limitations due to his left ankle symptoms, diabetes mellitus, type 2, heart disease, and peripheral neuropathy, as well as non-exertional impairments resulting from chronic pain and discomfort, which collectively rendered him unable to perform the requirements of even sedentary employment. The expert included a detailed breakdown of the type of work typically required to meet the standard of “substantially gainful employment,” including analysis and application of the Labor Department’s definitions of occupational titles and classifications of work categories. Regarding sedentary work, in particular, the expert noted such work entailed mostly sitting but “may involve walking and standing” on occasion. In the Veteran’s case, the expert opined that his constant, chronic pain and discomfort would hamper his concentration and impair his ability to perform even sedentary, unskilled work on a regular basis. In this case, the Board finds a preponderance of the evidence of record demonstrates that the Veteran’s service-connected disabilities have rendered him unable to secure and follow substantially gainful employment throughout the appeal period. The Board bases this finding on the collective functional impairment described in the Veteran’s lay statements and, most notably, on the detailed and logical May 2019 vocational expert’s evaluation, which strongly supports a finding of unemployability. There is no probative evidence calling the Veteran’s lay statements or the findings of the vocational expert into serious question (the Veteran has not been afforded any VA examinations during the appeal period). In light of the above, the weight of the evidence supports a finding that the Veteran is unable to secure and follow substantially gainful employment as a result of his service connected disabilities. Accordingly, entitlement to a TDIU is granted. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.