Citation Nr: 21013530 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-59 008 DATE: March 9, 2021 ORDER Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to January 1970. In March 2020, the Board remanded the issues on appeal to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU VA law provides that a total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following 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. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered in determining whether unemployability exists are the veteran’s education and employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the veteran’s age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a claim of entitlement to a TDIU, the record must reflect some factor which takes the case outside the norm. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “Substantially gainful employment” is not currently defined in VA regulations; however, the term has been defined 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 non-economic component includes consideration of 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. In other words, the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran’s current service-connected disabilities are: (1) type 2 diabetes mellitus (DM) with erectile dysfunction, rated 20 percent disabling from November 23, 2007, 40 percent disabling from October 9, 2008, and 20 percent disabling from January 23, 2009; (2) diabetic neuropathy associated with DM, rated 30 percent disabling from October 15, 2014; (3) left lower extremity (sciatic nerve) peripheral neuropathy (PN) associated with DM, rated 20 percent disabling from November 23, 2007; (4) right lower extremity (sciatic nerve) PN associated with DM, rated 20 percent disabling from November 23, 2007; (5) left lower extremity (femoral nerve) PN associated with DM, rated 20 percent disabling from November 23, 2007; (6) right lower extremity (femoral nerve) PN associated with DM, rated 20 percent disabling from November 23, 2007; (7) diabetic PN of the left upper extremity associated with DM, rated 10 percent disabling from October 24, 2014; and (8) diabetic PN of the right upper extremity associated with DM, rated 10 percent disabling from October 24, 2014. The Veteran had a combined disability rating of 70 percent from November 23, 2007, the date service connection was first established. As all the Veteran’s disabilities result from DM, they will be considered as one disability to meet the schedular criteria from November 23, 2007. 38 C.F.R. § 4.16(A)(3). Thus, the Veteran’s combined disability rating meets the threshold schedular criteria for eligibility for a TDIU from November 23, 2007 and thus, during the pendency of this appeal as well. The next issue is whether the Veteran has been rendered unemployable as a result of his service-connected disabilities. A review of the evidence of record demonstrates that the Veteran had maintained full-time employment. On his January 2015, January 2016, and March 2018 applications for increased compensation based on unemployability (VA Form 21-8940), the Veteran noted that he had worked full-time as a police sergeant from April 1970 to July 1998. He noted that he left his last position due to all of his service-connected conditions, specifically DM, neuropathy, hypertension, and a back condition. The Board notes that the Veteran is not service connected for hypertension or a back condition. He did not report lost time due to his disabilities. He did not report hospitalizations or treatment by doctors when he was employed for over 28 years. He is in receipt of a police department retirement. He indicated that he had a bachelor’s degree and that he did not have any additional education and training since he became too disabled to work. On his March 2018 VA Form 21-8940, the Veteran indicated that he tried to obtain employment since he became too disabled to work. In November 2020, the Veteran’s previous employer noted that he worked from April 1970 to July 1998. The reason the Veteran stopped working was to take his pension. See also request for employment information received in May 2020. During his March 2008 VA examination for PN, the Veteran stated that he retired in July 1998 as he was eligible for retirement by age or duration of work. In October 2014, a VA examiner found that the Veteran’s PN of the lower extremities impacted his ability to work as he had loss of dexterity, slowness of movements, and an inability to stand for prolonged periods of time. In October 2015, a VA examiner found that the Veteran’s DM did not impact the Veteran’s ability to work. Also, in October 2015, a VA examiner found that the Veteran’s bilateral upper and lower diabetic PN was mild in severity and impacted his ability to work as he had limitation in prolonged standing and loss of dexterity. In February 2018, a VA physician noted that the Veteran’s DM and PN were stable and controlled with medication. An August 2018 VA primary care note indicated that the Veteran was alert, oriented, and ambulatory. He was compliant with his DM medications. He was well developed, well nourished, and well groomed. An August 2019 VA primary care note indicated that the Veteran was alert, oriented, and ambulatory. He was well developed, well nourished, and well groomed. He underwent a foot examination due to his diagnosis of DM. His lower extremities were normal upon inspection, pulses preserved, and sensory examination was intact. During a February 2020 VA follow-up appointment, the Veteran denied any acute complaints at the time of the evaluation. His general wellness review was normal. When asked about his DM, the Veteran denied symptoms of hypoglycemia, shakiness, dizziness, sweating, or headaches. A September 2020 VA treatment note indicated that the Veteran’s DM was controlled. His general wellness review was normal. Here, the Board concludes that the evidence does not establish that the Veteran’s service-connected disabilities, without consideration of any other, nonservice-connected disability, render the Veteran unemployable. In that connection, the Board notes that in October 2015, a VA examiner found that the Veteran’s PN of the bilateral upper and lower extremities caused a mild impairment that caused a loss of dexterity and limited prolonged standing. Also, in a separate October 2015 VA examination report, his most recent examination for DM, the VA examiner clearly stated that the Veteran’s DM and complications of DM did not impact his ability to work. The Board finds this evidence probative as it was based on a thorough review of the Veteran’s claims file, including his past medical and employment history and the statements offered by the Veteran. Subsequent and more recent VA treatment records similarly do not indicate that that the Veteran’s service-connected disabilities render the Veteran unable to obtain and maintain gainful employment. Although the Veteran believes that he cannot secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the Board finds that the more probative evidence is against the claim. The Board notes that, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent, credible and probative opinion on a matter as complex as to what is the objectively shown functional impairment caused by the service-connected disabilities and what is the impact of those disabilities on his ability to attend to daily activities including capacity for occupational activities. Thus, while the Veteran’s opinions and observations are competent evidence that has been given full consideration by the Board, the Board finds that his statements are not entirely consistent with the objective medical evidence regarding the nature and degree of limitation of the Veteran’s service-connected disabilities as it pertains to the Veteran’s capacity for gainful employment. The Board specifically finds that the evaluation of the actual functional impact of his disorders on the Veteran’s capacity to engage in occupational activities from a clinical standpoint is a matter squarely within the realm of expert clinicians, and not lay expertise. In any event, any probative value of the Veteran’s own conclusions is outweighed by that of the opinions provided by the more recent VA medical professionals, who reviewed the claims folder and found that the Veteran’s service-connected disabilities did not render him incapable of obtaining and retaining employment. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence shows that Veteran’s service-connected disabilities impair his earning capacity in civilian occupations. However, the combined disability rating compensates him for this impairment. See 38 C.F.R. § 4.1. The medical opinion evidence from the VA examiners essentially reflects that the Veteran’s service-connected disabilities do not preclude him from securing and following a substantially gainful occupation; the documented findings indicate that the Veteran continued to be able to perform work duties, even considering the symptoms of his service-connected disabilities. The Veteran’s previous employer noted that he retired in July 1998. Further, it was noted that the Veteran did not miss any work in the preceding 12 months due to his disability. On multiple applications for increased compensation based on unemployability the Veteran did not report hospitalizations or treatment by doctors when he was employed for over 28 years. Furthermore, the Veteran stated that he retired because he was eligible to receive his pension. He was not having problems with his health at the time of retirement and did not need accommodations at the time of retirement. Thus, the evidence showed that the Veteran had substantially gainful employment that was more than marginal. See Ray, 31 Vet. App. 58 (2019). Furthermore, as noted above, the medical experts noted that the Veteran’s service-connected disabilities did not produce significant physical, and/or psychiatric, limitations, nor played a major role in his inability to obtain and maintain employment that could be considered substantially gainful, in that they affected his ability to perform this level of work on a consistent basis. Id. Thus, the evidence is against any finding that his service-connected disabilities caused him to be unable to secure or follow a substantially gainful occupation; as such entitlement to a TDIU rating is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.