Citation Nr: 21012174 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-02 954 DATE: March 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT For the period prior to April 24, 2019, the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW For the period prior to April 24, 2019, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to June 1973 and from May to July 1977. This appeal to the Board of Veterans’ Appeals (Board) is from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in March 2019, and the Board denied the claim. In response, the Veteran appealed to the higher United States Court of Appeals for Veterans Claims (Veterans Court/CAVC). In January 2020 the parties filed a Joint Motion for Remand (JMR), which the Court granted in an Order that same month, vacating the Board’s decision denying this claim and remanding it back to the Board for re-adjudication in compliance with agreement in the JMR. Entitlement to a TDIU The Veteran contends that he is entitled to a TDIU because his service-connected disabilities preclude him from obtaining and maintaining any employment that could be considered substantially gainful versus just marginal in comparison. It is initially worth mentioning that the Veteran has had a combined 100 percent schedular rating for his service-connected disabilities effectively since April 24, 2019, so this discussion of his purported additional entitlement to a TDIU concerns only the period on appeal prior to that date since this is not the situation contemplated in precedent cases when he can have a 100 percent schedular rating concurrently with a TDIU. See, e.g., Bradley v. Peake, 22 Vet. App. 280 (2008). 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 substantially gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. Neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that a Veteran is unable to obtain or follow a substantially gainful occupation as a result of service connected disabilities and has a single service-connected disability ratable at 60 percent or more, or two or more service-connected disabilities when one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability or disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).   For this purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities 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. See 38 C.F.R. § 4.16(a). In this case at hand, the Veteran’s service-connected disabilities meet these schedular rating requirements for a TDIU. Throughout the appeal period and prior to receiving the combined 100 percent rating, service connection had been established for diabetic neuropathy of his right upper extremity, rated as 30-percent disabling; also for diabetes mellitus and diabetic neuropathy of his left upper extremity, left lower extremity, and right lower extremity, each rated as 20-percent disabling; for venous stasis of his left lower and right lower extremities, each rated as 10-percent disabling; and for renal insufficiency, rated as 0-percent disabling. These ratings combine to an overall 80 percent rating. See 38 C.F.R. § 4.25. Moreover, because these disabilities result from common etiology (i.e., all relate to the diabetes), they are considered as one, collective or aggregate, disability in determining whether the threshold minimum rating requirements of § 4.16(a) are met. Considered in this context, the ratings for these disabilities have met the schedular criteria for a TDIU for the entirety of the rating period under review. The remaining question, then, is whether these service-connected disabilities have precluded the Veteran from obtaining and maintaining substantially gainful employment. See 38 C.F.R. § 4.16(a). The mere fact that a Veteran is unemployed or has difficulty finding employment does not, alone, warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a Veteran's service-connected disabilities, alone, are of sufficient severity to produce unemployability, and not whether a Veteran could find employment. Id. And, to reiterate, in making this critical determination, consideration may be given to a Veteran's level of education, prior training, and work experience, but not to his age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit Court held that, when a Veteran is claiming entitlement to a TDIU based on the combined effect of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). On March 14, 2019, so during the pendency of this appeal and the same month the Board issued its prior decision denying this claim (since vacated), the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; 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," while the noneconomic component requires consideration of a Veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a Veteran's ability to "secure and follow" such employment, noting that attention must be given to: the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities In July 2013, the Veteran submitted a TDIU application (VA Form 21-8940). On it, he indicated that his diabetes and peripheral neuropathy prevented him from obtaining or maintaining substantially gainful employment. He reported that he had last worked in January 2013, so earlier that year, as an airport police dispatcher. He further noted that his education consisted of four years of high school and no additional vocational training. In August 2013, the Veteran filed for Social Security Administration (SSA) disability benefits. Records from SSA show that, of his service-connected disabilities, he attributed his inability to work to his neuropathy. He also attributed his inability to work to multiple other nonservice-connected disabilities. Ultimately, SSA found that his peripheral neuropathy was severe, but that his diabetes was not severe. The SSA records also show he had lower extremity edema requiring him to wear compression socks daily. In December 2013, the Veteran submitted several supporting buddy statements from former co-workers. One co-worker, M.R., stated that he had worked with the Veteran for five years and, during that time, had observed him having difficulty sitting for long periods of time. Further, M.R. recalled that the on-duty EMT officer was requested to render aid to the Veteran multiple times because his leg was leaking fluid. Another co-worker recounted that, over the 10 years they had worked together, the Veteran consistently had trouble getting up out of chairs. The Veteran also submitted a personal written statement in December 2013 explaining that he had worked as a police dispatcher at an airport and that his job duties and responsibilities included dispatching police to calls, observing CCTV cameras, and answering phone lines. He added that he had worked eight-hour days, but that his shifts sometimes would be extended to 16 hours, and that he was required to sit throughout that time – which was difficult due to the neuropathy affecting his lower extremities.   A March 2014 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability, shows the Veteran’s former employer indicated that he had last worked there in May 2013. Further, the reason for his end of employment was “personal reasons.” The Veteran’s former employer indicated the Veteran has a pension based on time worked. In April 2014, the Veteran underwent a VA examination for his diabetes and associated complications. Overall, the examiner found that neither the diabetes nor kidney disability had any functional impact on the Veteran’s ability to work, but also that his peripheral neuropathy and stasis dermatitis impact his ability to perform active, though not sedentary, work. Further, the examiner indicated the Veteran’s peripheral neuropathy impacts his ability to work because he has difficulty walking owing to this service-connected disability and it causes him to fall approximately once per month. In May 2019, the Veteran underwent a VA examination for his lower extremity venous stasis dermatitis. During this examination, he reported that “sometime in the summer [of] 2018 he had edema to the LE’s [lower extremities] and clear drainage from the LLE [left lower extremity] medial aspect but no lesion/ulcer nor any open area and no infection.” He reported this was clear drainage and that his treating private doctor attributed it to his stasis dermatitis. Treatment included compression bandages and elevation of his legs and feet. The VA examiner noted that VA treatment records show the Veteran was prescribed a flexi-touch compression system for his bilateral lower extremity edema associated with the stasis dermatitis. Ultimately, however, this examiner surmised that the Veteran’s stasis dermatitis did not have a functional impact on his ability to work. Also, in May 2019, the Veteran again underwent a VA examination for his stasis dermatitis, which also included an artery and vein condition examination. The examiner indicated the Veteran has post-phlebitic syndrome in both lower extremities that causes aching in his legs after prolonged walking, fatigue in his legs after prolonged standing, symptoms relieved by elevation of his extremities and compression hosiery. Further, he has persistent stasis pigmentation, intermittent ulceration, and persistent edema that is incompletely relieved by elevation. The examiner determined the Veteran’s stasis dermatitis causes functional impact as it is worsened by prolonged walking and standing, and “this condition prevents physically active work activities, but does not prevent sedentary occupational activities/tasks.” The January 2020 JMR the Court granted directed the Board to address three issues from the March 2019 denial of this TDIU claim: 1) the Board’s understanding of “substantially gainful employment”; 2) the Veteran’s education level, prior vocational history, and work experience and how these factors relate to the physical and mental limitations of his service-connected disabilities; and 3) discuss what is meant by “sedentary work” and how the concept of sedentary work factors into his overall disability picture and vocational history and his ability to secure or follow a substantially gainful occupation. In June 2020, the Veteran submitted a supporting statement from his wife in which she recounted that he has difficulty standing or walking for prolonged periods and that she tries to do things for him so that he can keep his feet elevated as much as possible. In October 2020, the Veteran submitted a written statement explaining that the onset of his neuropathic pain is what had prompted him to find a job that required sitting – i.e., his job as a police dispatcher at an airport. He stated that he then started to notice constant swelling in his feet and ankles, and that his socks would be soaking wet and that it was “body fluid leaking from [his] lower legs.” This prompted calling the on-duty EMT during work. He recalled that his treating doctors at the time suggested he elevate his feet and legs “all the time” but that his job did not allow for this and, further, could not accommodate this. Also, in October 2020, the Veteran’s attorney submitted a private vocational report from vocational expert T.D. T.D. noted that the Veteran had received his GED prior to service and has no post-secondary education. His military occupational specialty (MOS) of field artillery crewman has no equivalent private sector job. He next worked as a concrete finisher from 1978 to 1994, work defined as heavy physical labor and requiring frequent stooping, kneeling, and crouching. He then worked as a church maintenance laborer from 1994 to 2003, defined as medium physical demand level requiring frequent standing, walking, stooping, reaching, and handling. Finally, he worked as an airport police dispatcher from 2003 to 2013, defined as a sedentary physical demand level. He reported that, at that latter job, he often was required to perform a double shift consisting of 16 hours that, in turn, aggravated his neuropathy and venous stasis dermatitis causing pain, numbness, and fluid seepage from his legs and feet after prolonged sitting. He further reported retiring from that job after his diabetic symptoms prevented him from successfully performing his job duties. Specifically, his leg fluid seepage violated his work’s “body fluid leakage policy” and he could not conceal the condition from his employer as his leg seepage got onto work surfaces. Ultimately, T.D. opined that “the fact that the Veteran was working in a sedentary job and could not continue his work due to side effects of medication, constant pain, and weeping fluids from his skin shows he is unable to perform this level of physical demand work.” T.D. pointed out that the Department of Labor describes sedentary work as “the least physically demanding level of work and is primarily seated, with occasional walking (up to 2 hours of an 8-hour workday) and lifting up to 10 pounds.” T.D. explained that the Veteran’s educational background does not support a transition into another line of sedentary work as he has limited computer and office skills, and his seeping bodily fluid from his legs would also fall under a bodily fluid exposure to his co-workers per office policies. Even further, T.D. noted the Veteran’s report that he used close to six months of time off during his last three years of employment, mostly owing to complications of his service-connected disabilities. Upon further review of this claim, the Board agrees with this vocational expert, T.D., and finds that even sedentary work, that is, work that has a low physical requirement, cannot be performed by the Veteran due to his service-connected disabilities, including especially owing to the seeping bodily fluid from his legs. He was employed in a sedentary work position at his last place of employment, meaning his job largely consisted of sitting and answering radio and phone calls. And the evidence of record shows that, even that job was not possible for him to continue doing because of his stasis dermatitis causing bodily fluids to seep from his legs. The Veteran, his wife, and his former co-workers all have attested that he requires elevation of his lower extremities for a good portion of the day and now even requires a compression machine for his lower extremities. To address the Court’s directive that the Board discuss “substantially gainful employment,” the Board notes that this would be a job consistent with a high school education and not requiring extensive computer or office skills. But, as the vocational expert pointed out, the Veteran is ill-equipped to work in any type of job beyond that, even if provided some measure of accommodation. Further, he requires accommodations allowing him to elevate his lower extremities, so the job cannot require normal sitting for prolonged periods. And providing him those accommodations ultimately would be tantamount to just marginal and not substantially gainful employment. See 38 C.F.R. § 4.18. As such, the Board finds that he is entitled to a TDIU for the period at issue prior to April 24, 2019. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.