Citation Nr: 21014186 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-41 036A DATE: March 11, 2021 ORDER 1. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 7, 2014 is denied. 2. A TDIU since July 7, 2014 is granted. FINDINGS OF FACT 1. Prior to July 7, 2014, the Veteran’s service-connected disabilities did not prevent him from securing and following substantially gainful employment. 2. Since July 7, 2014, the Veteran’s service-connected disabilities have prevented him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to July 7, 2014, the criteria for a TDIU were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 2. Since July 7, 2014, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1964 to June 1968 and from July 1976 to July 1992, including service in the Republic of Vietnam. The case is on appeal from an October 2012 rating decision. Most recently, in a November 2020 decision, the Board denied higher ratings for diabetes mellitus, type II, and remanded a TDIU prior to August 29, 2016 for additional development. A TDIU prior to August 29, 2016. Legal Criteria A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the 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. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray, 31 Vet. App. at 73. Factual History The Veteran is seeking a TDIU prior to August 29, 2016. In a September 2018 TDIU application, he reported becoming too disabled to work in August 2008 due to service-connected coronary artery disease (CAD), diabetes, peripheral neuropathy, hearing loss, and an eye disability. He also reported working in airport security from October 2002 to August 2008. The TDIU claim was inferred based on the evidence of record pursuant to the Veteran’s February 2012 diabetes rating claim, thus the appeal period runs from February 2012 to August 28, 2016. During the appeal period, the Veteran was service-connected for chronic stage 3 kidney disease rated as 60 percent disabling; diabetes mellitus rated as 20 percent disabling; right lower extremity peripheral neuropathy rated as 10 percent disabling; left lower extremity peripheral neuropathy rated as 10 percent disabling; ocular histoplasmosis syndrome with bilateral mild nonproliferative diabetic retinopathy rated as 10 percent disabling; and bilateral hearing loss rated as 10 percent disabling. During the appeal period, the Veteran was service connected for CAD rated 60 percent disabling and a chest scar rated as noncompensable, both effective July 7, 2014. In addition, in a February 2021 rating decision, the RO found clear and unmistakable error (CUE) in the effective date assigned for the Veteran’s kidney disease and instead assigned an effective date of July 7, 2014 for this condition. The Veteran was afforded a VA audiometric examination in August 2009. He reported having difficulty understanding speech. The examiner reported mild hearing loss at lower frequencies and severe hearing loss at higher frequencies. She also reported speech discrimination scores of 80 percent in the right ear and 72 percent in the left ear. The Veteran ’s private treatment records include a February 2012 follow up appointment for diabetes. The Veteran reported sleeping and feeling well, despite some minor complaints, and having a good energy level. He denied experiencing any emotional impact from the condition or side effects from medication. The physician found that the diabetes has a mild impact on the Veteran’s recreation. The Veteran was afforded a VA kidney examination in February 2012. The Veteran reported being able to walk a mile, but also reported being sleepy and having difficulty concentrating. He noted that he was recently diagnosed with a pulmonary embolism. The examiner found that the Veteran has chronic kidney disease but concluded that it does not impact his ability to work. The Veteran was then afforded VA examinations for diabetes, peripheral neuropathy, and eye condition in March 2012. The Veteran reported being admitted to a private medical center for pulmonary embolism in February 2012. The examiner reported that his diabetes is treated with insulin injections more than once a day, but denied required regulation of activities, unintentional weight loss, and episodes of ketoacidosis or hypoglycemia requiring hospitalization in the past 12 months. The examiner did not find that the condition impacted the Veteran’s ability to work. In regard to the bilateral lower extremity peripheral neuropathies, the examiner reported mild intermittent pain and paresthesias and moderate numbness. The examiner also reported normal bilateral lower extremity strength and reflexes. She found these conditions to be mild in severity and denied that the conditions impact the Veteran’s ability to work. The eye examiner diagnosed the Veteran with diabetic retinopathy and presumed ocular histoplasmosis. He reported 20/40 corrected vision in both eyes for distance and near vision. He also reported bilateral dot hemes and peripheral window defects. The examiner concluded that the Veteran’s eye conditions do not impact his ability to work. In October 2012, the Veteran submitted a note from a private physician. The physician reported that the Veteran has limited mobility and an insulin restricted diet. In July 2014, the Veteran submitted a heart disability benefits questionnaire (DBQ) completed by a private physician in June 2014. The physician diagnosed the Veteran with CAD with a symptom of dyspnea. He denied the presence of myocardial infarction and congestive heart failure. The examiner reported a metabolic equivalents of task (METs) level of between 3 to 5. The examiner noted that the Veteran is retired. The Veterans submitted diabetes and kidney DBQs completed by a private physician in October 2014. The diabetes physician reported the Veteran is treated with insulin injections more than once a day and oral hypoglycemic agents, but denied regulation of activities, unintentional weight loss, and episodes of ketoacidosis or hypoglycemia requiring hospitalization in the past 12 months. The physician also reported that he had progressive loss of strength due to diabetes. He marked “yes” for diabetes impacting the Veteran’s ability to work. The kidney physician denied the presence renal dysfunction, recurrent urinary tract or kidney infections, and other pertinent physical findings. The physician found that the kidney condition does not impact his ability to work. The Veteran was afforded a VA heart examination in December 2014. The Veteran reported experiencing some shortness of breath and syncope. He also reported experiencing atrial fibrillation after heart surgery in August 2013 that has resolved. The examiner diagnosed the Veteran with CAD with a good prognosis as well as valvular heart disease. He reported normal heart rhythm and sounds, normal peripheral pulses, and clear lungs. He denied the presence of myocardial infarction, congestive heart failure, and peripheral edema. The examiner also reported 70 percent left ventricular ejection fraction. He estimated the Veteran’s METs level to be between 3 and 5, which is consistent with performing light yard work and brisk walking. Thereafter, in August 2016, the Veteran was afforded another heart examination. The examiner estimated the Veteran’s METs level to be between 5 and 7. The examiner attributed all limitation to his service-connected heart condition and concluded that the condition results in severe impairment of stamina. In September 2016, the Veteran submitted a letter from a private physician dated August 29, 2016. The physician reported that the Veteran is on a diabetic diet and is advised to avoid strenuous activities that could adversely affect his blood sugar control. The physician also reported that he now has chronic stage III kidney disease and that he is not able to work due to these conditions. In August 2017, the Veteran was afforded another peripheral neuropathy examination. The examiner reviewed the Veteran’s treatment records and noted he reported experiencing sharp pain in his feet three times per week, but also reported that shooting pains in his right leg because a nerve conduction test showed it was not due to neuropathy. The examiner reported mild intermittent pain, paresthesias, and numbness due to diabetic neuropathy. The examiner also reported normal strength and knee reflexes, with decreased ankle reflexes. The examiner concluded that the Veteran’s bilateral lower extremity peripheral neuropathy is mild in severity and results in mild functional limitation. Analysis Prior to July 7, 2014, the Veteran did not have a combined rating of 60 percent or more. See 38 C.F.R. § 4.16(a). In addition, his service-connected disabilities resulted in functional impairment, but did not prevent him from maintaining a substantially gainful occupation prior to such date. The February 2012 kidney examiner explained that the condition did not impact his ability to work. This finding is supported by the October 2014 private physician kidney DBQ that also indicated that the kidney condition did not impact the Veteran’s ability to work. In addition, in February 2021, the RO assigned an effective date of July 7, 2014 for service connection for his kidney condition. The Veteran’s diabetes with bilateral lower extremity and eye complications also did not prevent him from working prior to July 7, 2014. The Veteran’s private treatment records indicate that prior to such date his diabetes had a mild impact on recreation, but did affect his energy level or ability to sleep. This is supported by the VA diabetes and neuropathy examinations. The March 2012 examiner found that his diabetes did not result in restriction of activities and neuropathy symptoms were mild to moderate. The examiner concluded that these conditions did not impact his ability to work. The August 2017 VA neuropathy examiner explained that the Veteran’s service-connected lower neuropathies result in mild functional impairment. In addition, the March 2012 eye examiner found that his service-connected eye condition did not impact his ability to work. The Board notes that an October 2012 private treatment record indicated that the Veteran’s diabetes limits his mobility and causes weakness resulting in functional impairment. However, the March 2012 and August 2017 VA neuropathy examiners explained why they found that the lower extremity disabilities result in at most mild functional impairment. The Board notes that the Veteran has submitted private physician opinions indicating that these conditions result in functional impairment. However, the VA examiners’ opinions of record are more probative because they include greater detail in assessing the Veteran’s service-connected neuropathies and indicated that these conditions do not result in more than mild functional impairment. The evidence indicates that the Veteran’s employment experience is limited to security work. Many jobs in security require physical components, including extended periods of standing. However, the preponderance of the evidence indicates that he only experienced mild functional impairment due to his service-connected disabilities prior to July 7, 2014. In addition, the evidence does not indicate that the conditions resulted in any psychiatric symptoms. Thus, the Veteran’s service-connected disabilities result in restrictions in his ability to work, but do not prevent him from securing and following substantially gainful employment in the field of security. To the extent that the Veteran was unable to secure and maintain such employment, it is at least in part due to conditions other than his service-connected disabilities. Therefore, a remand for a referral to the Director of Compensation and Pension for consideration of an extraschedular TDIU prior to July 7, 2014 is not warranted. See 38 C.F.R. § 4.16(b). The Board is sympathetic to the impact the Veteran’s service-connected disabilities had on him, both professionally and personally, prior to July 7, 2014. However, those problems were compensated by the schedular rating for such disability. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while these disabilities caused some economic impairment, the assigned disability ratings contemplated his level of occupational impairment. A TDIU claim is not purely a medical question. Here, the Board has considered both the relevant medical evidence as well as the non-medical evidence such as work history and lay statements, and the economic and non-economic factors. However, since July 7, 2014, the Veteran has been unable to secure or follow a substantially gainful occupation as a result of the combined effects of the service-connected disabilities and met the schedular criteria for a TDIU. In this regard, service connection is in effect for CAD with a 60 percent disability rating effective July 7, 2014. The heart examinations and treatment records show that his CAD alone results in severe impairment of stamina, which prevents him from securing and maintaining gainful employment. In addition, since July 7, 2014, the Veteran has had at least a combined rating was 70 percent with at least one disability rated 40 percent or higher. See 38 C.F.R. § 4.16(a). In sum, the Board finds that, prior to July 7, 2014, the Veteran’s service-connected disabilities did not prevent him from securing or following substantially gainful employment. As the preponderance of the evidence is against a TDIU prior to such date, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. However, since July 7, 2014, the service-connected disabilities have prevented him from securing or following substantially gainful employment. (Continued on the next page)   In light of the foregoing, prior to July 7, 2014 a TDIU is not warranted, but is warranted since such date. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.