Citation Nr: 21013120 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-40 808 DATE: March 8, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The preponderance of the evidence reflects that the Veteran’s service-connected disabilities do not render him unable to secure and maintain substantially gainful employment consistent with his education and vocational experience at any point during the appeal period. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REFERRED ISSUES The issue of whether there was clear and unmistakable error (CUE) in the May 2009 rating decision that assigned initial, noncompensable ratings for service-connected joint stiffness of the index and long finger on the left hand and joint stiffness of the ring and little finger on the left hand, as opposed to assigning separate ratings for each finger, was raised in an April 2015 statement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities The Veteran has asserted that his service-connected diabetes mellitus and ulcer disabilities have prevented him from obtaining substantially gainful employment since November 2014. See March 2016 VA Form 21-8940. While the Veteran filed his claim seeking entitlement to TDIU in March 2016, the Board notes that this issue was raised while the appeal for service connection for diabetes and an increased rating for the service-connected ulcer disability were pending. Therefore, the Board will consider whether the Veteran is entitled to a TDIU from May 15, 2013, the date of receipt of his service connection and increased rating claim for those disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 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 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as “doing or requiring much sitting” the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER’S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected 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). Rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration of all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Veteran has several service-connected disabilities. Effective May 15, 2013, service connection is established for duodenal/gastric ulcer, rated 20 percent disabling; diabetes mellitus, rated 20 percent disabling; peripheral neuropathy affecting the left and right upper extremities, separately rated 20 percent disabling; left wrist status post fracture with arthritic changes of the carpometacarpal (CMC) joint, rated 10 percent disabling; left thumb stiffness, rated 10 percent disabling; peripheral neuropathy affecting the left and right lower extremities, separately rated 10 percent disabling; and residual partial tear of the left little finger extensor tendon, residual second degree burns both arms, joint stiffness of the index and long finger on the left hand, joint stiffness of the ring and little finger on the left hand, and left wrist surgical scar, each rated noncompensable (zero percent). For the above purposes, the Veteran’s diabetes and peripheral neuropathy disabilities are considered as one disability because they result from a common etiology. Likewise, the Veteran’s left wrist fracture, left thumb stiffness, joint stiffness of the left index and long finger, and joint stiffness of the left ring and little finger are also considered one disability. See 38 C.F.R. § 4.16(a). As a result of the foregoing, the Board finds the Veteran has met the schedular criteria for TDIU throughout the appeal period, as he has one disability rated 60 percent or more, i.e., the diabetes and peripheral neuropathy disabilities, with an overall combined rating of more than 70 percent. See 38 C.F.R. §§ 4.25, 4.26. Next, the Board must consider whether the evidence shows his service-connected disabilities have rendered him unable to secure or follow substantially gainful employment consistent with his education and occupational experience at any point since May 15, 2013. See 38 C.F.R. § 4.16(b). The lay and medical evidence of record does not show that the Veteran experiences any functional impairment due to the service-connected disabilities involving the partial tear of the left little finger tendon, residual second degree burns on both arms, joint stiffness of the left index and long finger, joint stiffness of the left ring and little finger, and left wrist surgical scar. The evidence shows that the Veteran’s residual left wrist fracture disability is manifested by pain and increased weakness which limits his ability to push, pull, carry items, or operate machinery. Indeed, VA examiners have noted that the left wrist disability impacts the Veteran’s ability to work due to the foregoing limitations but, notably, the February 2014 VA examiner stated the Veteran was able to type, although he would require breaks as needed. See VA examinations dated February 2014 and September 2017. The medical evidence of record reflects that the Veteran’s service-connected ulcer disability is manifested by recurrent episodes of non-severe symptoms, such as monthly abdominal pain that is relieved by standard therapy and melena; however, the Veteran has not endorsed incapacitating episodes due to his ulcer disability and, accordingly, the examiners who conducted the February 2014 and September 2017 VA examinations opined that the Veteran’s ulcer disability does not impact his ability to work. See VA examinations dated February 2014 and September 2017. Notably, while the Veteran has asserted that his ulcer disability renders him unemployable, he has not provided any evidence or argument identifying the symptoms or functional impairment caused by his ulcer disability prevents him from working. The evidence of record reflects that the Veteran’s service-connected diabetes generally affects his blood sugar levels. For example, in December 2013, the Veteran requested a letter from VA clinicians that stated he should not work graveyard shifts on Saturdays because doing so affected his ability to sleep which, in turn, impacted his blood sugar levels and overall health. It is not clear if the letter was provided; nevertheless, the preponderance of the evidence shows that his diabetes mellitus is well controlled and has not resulted in hospitalizations for ketoacidosis or hypoglycemic reactions, weight loss, or urinary incontinence. See e.g., November 2010 VA examination; March 2011 Agent Orange protocol exam; March 2020 VA treatment record. Indeed, there is no indication that the Veteran’s diabetes, itself, results in any functional impairment. However, the evidence reflects that the Veteran experiences diabetic peripheral neuropathy in the bilateral upper and lower extremities, which is manifested by tingling and numbness in the hands and feet, with more severe and frequent symptoms in the lower extremities. See e.g., November 2010 VA examination; March 2011 Agent Orange protocol exam; May 2019 VA treatment record. The Veteran has reported having moderate pain in the ankles and feet with long-standing walking duties and being unable to stand for more than 45 minutes. See e.g., VA treatment records dated September 2014 and January 2016. The evidence also shows that he wears special shoes and braces due to his lower extremity peripheral neuropathy disability. See e.g., VA treatment records dated August 2013 and May 2019. In February 2016, the Veteran’s treating physician noted the Veteran’s peripheral neuropathy and chronic foot pain and stated that, as a result, he is only able to work four days or a maximum of 34 hours a week, as standing for long periods every day can cause medical complications. See February 2016 statement. Overall, the evidence of record shows that the Veteran experiences a functional impairment with standing or walking for long periods of time due to his service-connected peripheral neuropathy of the lower extremities, as well as functional impairment with pushing, pulling, and carrying or holding items due to his service-connected left wrist and peripheral neuropathy of the upper extremities. Nevertheless, the Board finds the preponderance of the competent, credible, and probative evidence weighs against a finding that the Veteran’s service-connected disabilities prevented him from securing or following gainful employment at any point during the appeal period. In addressing the economic component of entitlement to a TDIU, the Board notes that marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. The Veteran has asserted that his ability to earn income has diminished due to his service-connected disabilities. See April 2016 statement in support of the claim. In this regard, he has submitted evidence showing that his adjusted gross income decreased every year from 2013 to 2015. See income and tax statements received April 2016. According to the US Census Bureau, the poverty threshold levels for a single individual over the age of 65 for the years 2013, 2014, 2015, and 2016 are $11,173, $11,354, $11,367, and $ 11,511, respectively. Based upon the income and tax information provided by the Veteran, the evidence shows that, while his income has decreased each year, his earnings since 2013 have exceeded the poverty threshold. There is also no indication or allegation that the Veteran’s employment since 2013 has been in a protected environment, such as a family business or sheltered workshop. In fact, the information received from the Veteran’s employers reflects that concessions were not made to the Veteran due to his age or disability. See e.g., April and July 2016 VA Form 21-4192. The Board acknowledges that a February 2016 VA treatment record documents the Veteran’s report that he had been allowed to sit more often during work but this, alone, does not establish that his employment at that time was in a protected environment indicative of marginal employment as contemplated by applicable regulations. Instead, this evidence suggests that the job market included at least one type of occupation that would accommodate the Veteran’s physical ability to perform the type of activities required. The Board also notes that the evidence reflects that he was earning more than the poverty threshold level at that time. In this regard, a representative from Walmart certified in June 2016 that the Veteran earned $24,514 for his employment in the previous 12 months, which is above the poverty threshold for 2015 and 2016. The evidence shows that the Veteran stopped working at a big box retail store in approximately 2017 but he secured another job as a security guard at a home improvement store thereafter. The Board notes the claims file does not contain the Veteran’s income information since 2016. However, the evidence of record shows that he continues to work, at least on a part-time basis, and there is no indication or allegation that his employment as a security guard is marginal due to earning income less than the poverty level or because it is a protected environment. Therefore, the preponderance of the evidence reflects that the Veteran has earned and maintained more than marginal income and employment throughout the appeal period. The evidence of record also supports a finding that the Veteran retains the ability to secure and maintain employment that accommodates the functional impairment caused by his service-connected disabilities. Indeed, with respect to the non-economic component of entitlement to a TDIU, the Board notes that the evidence reflects that the Veteran completed one year of college and his work history includes working as a cook in retirement and nursing homes. See e.g, March 2016 VA Form 21-8940; February 2019 VA treatment record. The evidence reflects that, during the appeal period, the Veteran worked as a resident monitor until February 2014, a cook for one month in 2016, and a greeter at a big box retail store from 2014 to 2017. See VA Form 21-4192s. The Board acknowledges that the Veteran was terminated from his job as a cook in July 2016 because he was unable to perform his duties due to his physical limitations. See a July 2016 VA Form 21-419. However, the evidence shows that he was subsequently able to secure employment at a retail chain and, as noted, he was afforded the opportunity to sit down when needed during this employment. There is no indication as to why the Veteran stopped working at this facility, but the evidence shows he secured another job as a security guard, which does not require that he spend much time on his feet. See e.g., VA treatment records dated January 2018, February 2019, and March 2020. The foregoing evidence weighs against a finding that the Veteran does not have the physical or mental ability to perform light or sedentary activities required to perform a substantially gainful occupation, such as a store greeter, security guard, or any other job that does not require long periods of walking or standing or extended use of his upper extremities. In fact, the evidence shows that the Veteran has maintained such employment during the appeal period and has earned income that is above the poverty level during this time.   Therefore, after considering the economic and noneconomic components for a TDIU in light of the pertinent evidence set forth above, the Board finds the Veteran’s service-connected disabilities do not prevent him obtaining or maintaining substantially gainful employment and, as such, entitlement to TDIU is not established. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.