Citation Nr: 21014235 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 07-30 371 DATE: March 11, 2021 ORDER A total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran had active duty from September 1966 to September 1968. 2. The Veteran’s service-connected disabilities, including coronary artery disease (CAD), diabetes mellitus (DM), peripheral neuropathy (PN), and erectile dysfunction (ED), do not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1110, 1521, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In September 2020, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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. 38 C.F.R. § 4.16(a). Here, the Veteran is service connected for DM at 10 percent prior to April 18, 2005, and 20 percent since, CAD at 30 percent, bilateral PN of the lower extremities at 10 percent prior to April 21, 2005, and 20 percent since, and ED at 0 percent. Thus, he has had a combined rating of 40 percent since January 16, 2007, 60 percent since June 25, 2008, and 70 percent since April 21, 2016. Under the regulations, one disability for the purposes of assessing eligibility for schedular TDIU can include the combined rating of disabilities all arising from the same etiology. Here, CAD and DM were service-connected due to herbicide agent exposure during service. The rest of the service-connected disabilities are all complications of DM, and therefore share the same primary etiology of herbicide agent exposure in service. As such, each of the ratings above may be combined for the purposes of assessing one disability for eligibility for schedular TDIU, and the Veteran’s meets the eligibility requirements under 38 C.F.R. § 4.16(a) since June 25, 2008, the date he had a single disability of 60 percent. For the period prior to June 25, 2008, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for a TDIU, the case may be referred to the Director, Compensation Service (Director) for consideration of assignment of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Turning to the evidence, December 2000 Social Security Administration (SSA) records show that the Veteran was granted SSA benefits due to a back injury that occurred in December 1998. SSA determined that no jobs existed in reasonable numbers for him with the back disability, education level, and relevant work experience. No service-connected disabilities were referenced in the disability determination. This evidence suggests that he retired due to a nonservice-connected back disorder rather than due to service connected disabilities. The December 2000 SSA disability determination also showed the Veteran had a 12th grade education. He told a December 2016 VA examiner he was drafted immediately after graduating from high school. He has not submitted a VA Form 21-8940 or a VA Form 21-4192 in connection with this appeal with detailed employment or educational information, although nothing in the record contradicts what was contained in the December 2000 SSA disability. For the period prior to June 25, 2008, the Veteran’s disabilities did not meet the threshold requirements of 38 C.F.R. § 4.16(a) and the appeal is denied on this basis. Nonetheless, the question remains of whether referral for an extraschedular consideration was warranted under 38 C.F.R. § 4.16(b). As for DM, a January 27, 2005 VA examiner found no restriction of activities but indicated that the Veteran was on a diet and exercise plan. The Veteran claimed to never have ketoacidosis or hypoglycemic reactions or hospitalizations due to such reactions. The examiner further determined that the Veteran had mild glucose intolerance and did not qualify for the criteria of a diagnosis of DM. October 2005 private medical records show that the Veteran was compliant with DM medication, but not with diet and exercise plans. August 2006 and December 2006 VA medical records showed that DM was in good control. May 2007 records show he had not worked outside the home since 1998 when he injured his back. September 2007 VA medical records reflect that DM was uncontrolled based on target HGB A1C, and 2012 VA medical records indicated that he would benefit from improved glucose control and an exercise and weight loss program. A January 2008 VA examiner found that the Veteran had no restriction of activities and was treated with oral medication. He reported shortness of breath with moderate exertion. Additionally, the examiner found no impact on occupation but noted that the Veteran was not employed. As to impact on daily activities, the examiner found it was difficult to determine as the Veteran did not have a lot of daily activities due to restrictions, although the examiner did not relate those restrictions to DM. March 2008 VA medical records show that the Veteran complained of fatigue that was possibly related to inadequate glucose control, and DM was considered uncontrolled based on target HGB A1C. He told the clinician that he was physically active but exercised less than three times per week and had no problems with activities of daily living. A May 2008 VA clinician found the same as far as fatigue and uncontrolled DM. Finally, a May 2008 private record showed he was diagnosed with insulin dependent DM. As for the bilateral lower extremity PN, the effective date of service connection began in January 2007. September 2007 VA treatment records show he had paresthesias, dysesthesias and anesthesia of the feet, and a diagnosis of PN. A January 2018 VA examiner noted that the Veteran complained of left lower leg and foot pain, but had no restriction from strenuous activities. At the time, the Veteran believed the left foot numbness and tingling was associated with the back disability. He complained of fatigue and leg weakness in March 2008 and was confirmed to have paresthesias, dysesthesias, and anesthesia of the feet, and diagnosed with PN treated by using special shoes. May 2008 VA medical records confirmed the diagnosis of PN. Based on the above, the medical evidence fails to show any hospitalization for the Veteran’s service connected disabilities. Additionally, he was retired for the entirety of the appeal period, although this was due to nonservice-connected back disabilities. Therefore, given the service-connected disabilities did not cause frequent hospitalizations and the medical evidence reflected no impact on employability during the period, referral for extraschedular consideration is not warranted. Beginning June 25, 2008, the Veteran’s service-connected disabilities met the schedular requirements of 38 C.F.R. § 4.16(a); therefore, the threshold question is whether the service-connected disabilities alone were of sufficient severity to produce unemployability. As to DM, a September 2008 VA examiner found that the Veteran had symptoms of fatigue, that DM was poorly controlled, but that he was not restricted from strenuous activity and that there were no significant effects on occupation. The Veteran reported that he had previously retired as truck driver. He maintained that, in combination with the other service-connected DM complications, he was prevented from chores, recreation, and shopping, and that there was moderate impact on exercise, traveling, dressing, and toileting, with mild impact on bathing and none on feeding. March 2009 VA medical records show complaints of fatigue, with uncontrolled DM based on target HGB A1C. This diagnosis and characterization were repeated in other records, to include in September 2009, and January 2020; however, May 2011 VA medical records describe DM as well-controlled with the then-current medication. A December 2012 VA examiner diagnosed the Veteran with DM. He told the examiner he retired after an accident at work in 1998 left him disabled due to an injury to the back and several surgeries. He elaborated that he was unable to stand over 1 to 2 hours, had to avoid bending, lifting, and carrying, and walking was limited to about a half mile due to the back disability. As to DM, the examiner found that it was managed by a restricted diet, oral hypoglycemic agent, prescribed insulin with one injection per day, but no regulation of activities. Further, there were less than two episodes in the last twelve months of ketoacidosis or hypoglycemic reactions, none of which required hospitalization. The examiner found no functional impact caused by DM and concluded after a review of the medical records that DM had not resulted in any hospitalizations, complications, or regulation of activities and therefore should not render him unable to secure and maintain substantially gainful employment. The examiner’s assessment of the DM and its functional impact is highly probative. December 2013 VA medical records reveal that the Veteran was diagnosed with DM but with improved control. A January 2015 VA examiner noted that the Veteran was treated for DM with glipizide twice a day, Metformin twice a day, and insulin at bedtime, but the medical records showed no hospitalizations for DM, no restriction from activities, and no complications that would impact the Veteran’s ability to work. A December 2016 VA examiner found that DM and its complications of ED and PN would impact the Veteran’s ability to work, but he developed DM three years after he had retired because of a back condition, although it may impact the type of work he could currently do. The Veteran related that DM was mostly under control, but his sugars could fluctuate. He said he passed out two months prior but was able to drink a Coke to raise his sugar back up. He stated he did not follow a strict diabetic diet, and continued to take medications of Glipizide, Metformin, and insulin. The examiner noted no regulation as activities, with episodes of ketoacidosis and hypoglycemia occurring less than two times per month and neither resulting in hospitalization in the past 12 months. The examiner noted the complication of PN and ED. As to its impact on employment, the Veteran said he has occasional drops in sugar causing symptoms of dizziness, weakness, and a headache causing him to need to eat something. The examiner found the symptoms of DM would prevent the Veteran from driving a truck or exertional work, but he could lift items up to ten pounds, conduct filing, answer the telephone, or work as a telemarketer or greeter. He would need a regularly scheduled lunch break to maintain glucose levels. In March 2017 VA treatment records, the Veteran’s DM and A1C were evaluated as off target. August 2019 VA medical records show that DM was under better control, and this was echoed in February 2020 and August 2020 VA medical records. In August 2020, he said he felt weak at times and was often hungry. He also said he previously walked a quarter mile two-to-three times per week depending on his legs and the weather, but now felt challenged to exercise because of his knee and back. The medical provider urged him to exercise when seated 30 minutes per day, five times per week. As for lay evidence, a friend of the Veteran submitted a July 2008 statement that he saw it was difficult for him to perform tasks, like mowing the lawn, observed he had shortness of breath after a small incline or walking short distance, and that activity had become very limited causing him to gain several pounds. Finally, he stated he had problems standing or sitting for long periods. The Veteran also submitted as statement that same month that he had to increase the medication for DM and had problems with weakness and being unable to move around and was confined to sitting most of the time. In a September 2009 notice of disagreement, he stated that DM required insulin, restricted diet, and regulation of activities had become necessary. In October 2011, he related that DM severely affected his daily activities, prevented him from undertaking chores, shopping, or recreational activities, as well as had a moderate effect upon exercise, traveling, dressing and toileting. Next, as to PN, a September 2008 VA examiner noted that the Veteran reported he had a prickly sensation on the bottoms of both feet. Upon examination, he was shown to have symptoms of paresthesias, loss of sensation, and gait abnormality, and symptoms both down legs when walking, with loss of sensation not light touch for both extremities. No functional loss was assessed. March 2009 VA treatment records show that the Veteran complained of fatigue and leg weakness, with the left lower extremity worse than the right. He reported using diabetic shoes, which was repeated in subsequent treatment record in the appeal period. He continued complaining of fatigue and leg weakness, again with the left worse than the right, in a January 2010 appointment. July 2010 private treatment records noted bilateral pedal edema with unknown origin with pruritis of the feet, and unusual swelling of the feet during hot weather. A December 2012 VA examiner did not find a current diagnosis of PN, and therefore did not assess that it caused any functional impairment, although the Veteran reported report experiencing pain and tingling in the toes daily. Similarly, January 2015 and January 2016 VA examiners did not relate PN to service and thus did not assess its functional impairment. In contrast, in a December 2016 VA examination, the Veteran stated that he did not remember when it began, but started with numbness in his toes, then feet, then electric shocks and stinging in both calves, with the right worse than the left. He said his legs were worse when standing or walking, but not a problem when sitting. The examiner diagnosed bilateral moderate incomplete paralysis with the functional impact of making it difficult to stand or walk much or operate something involving pedals. VA medical records since the December 2016 VA examination continue to show treatment for and complaints of PN, to include March 2017 complaints of pain in the calves, complaints of fatigue and leg weakness with paresthesias, dysesthesias, and anesthesia of the feet in May 2018, and reports of lower extremity neuropathy in February 2019, August 2019, and February 2020. In an August 2020 VA medical record, he spoke of having challenges exercising in part due to the legs, knees, and back pain. In a correspondence added to the file in September 2016, he claimed he had pain in the legs for the past twenty years. As to ED, the Veteran has not claimed nor does the evidence show any functional impairment caused by ED. In each of the VA examinations above, September 2008, December 2012, January 2015, January 2016, and December 2016 examiners either did not associated ED with DM, and in no case did any examiner attribute it as causing any functional impairment. Similarly, a review of private and VA treatment records fails to show ED causing any functional impairment. Finally, turning to CAD, March 2009 VA treatment records show a diagnosis of CAD, first shown in 2008 private medical records through a cardiac catheterization. April 2009 private treatment records contain a doppler examination, which revealed minimal plaquing in both carotid arteries, with no hemodynamically significant lesions noted. January and September 2010 private treatment records each contained the results of separate chest X-rays, each with revealed no acute cardiopulmonary disease. August 2012 private treatment records following up on CAD show he was having some issues with dizziness over the last month, although the clinician noted he did not check his blood sugar during those symptoms, but did not posit whether they thought this to be a DM symptom rather than CAD. A December 2012 VA examiner did not diagnose any heart disorder, because while there was a May 2008 medical note regarding CAD shown from a cardiac catheterization, the results were not associated with the file at that time, and no other records showed ischemic heart disease or mild nonobtrusive CAD. A January 2015 VA examiner found that based on available medical records, CAD would not impact physical or sedentary employment. In December 2016, the Veteran told a VA examiner he did not have any symptoms related to CAD, and that he was able to do the dishes, light housework, and use the riding lawn mower. The examiner found he could perform light work, lifting 5-10 pounds, as well perform work such as filing, answering telephones, keyboarding, telemarketing, or working as a greeter. February 2018, August 2019, February 2020, August 2020 VA medical records show a diagnosis of coronary arteriosclerosis, stable, without angina. In October 2020, VA medical records show that the Veteran underwent a heart catheterization that week which revealed moderate blockages in small vessels. Private medical records detailing this procedure are not of record, but the Veteran was given authorization for medical provider release forms in September 2020 and failed to fill them out and return them to the RO such that they could obtain those records. Taken collectively, at no point during the appeal period do the Veteran’s service-connected disabilities cause him to be unable to follow or maintain a substantially gainful occupation. The medical evidence clearly shows that DM, PN, and CAD cause physical impairment that would make heavy manual labor unfeasible. Additionally, PN in particular may make operating vehicles difficult, due to issues with pedals as detailed in the December 2016 VA examination. However, these disabilities do not rule out at-home computer or telephone work, office work such as filing, or working as a greeter. As noted during the December 2016 VA examination, PN did not impact the Veteran while sitting. Additionally, as this would limit exertional activity, it would correspondingly limit the impact of any fatigue caused by DM and potentially CAD. The Veteran is not service connected for any hearing disability, or neuropathy of the hands, such that operating either a telephone or computer would be precluded. Any functional impairment caused by the back, such as an inability to sit for extended period of time or walking may not be used in making a determination on TDIU. Further, while the Veteran’s disabilities cause physical impairment (such as numbness in the feet), the evidence does not show that DM, CAD, PN, or ED caused mental impairments that would detract from the ability to follow or maintain substantially gainful employment. The evidence does not show an inability to interact with colleagues or customers, or grasp tasks in an office or greeter environment. Additionally, DM and CAD have not caused frequent hospitalizations during the appeal period. He has been retired due to the back disability, but there is no indication that had he been working that he would have frequently missed time from work due to DM, CAD, PN or ED such that it would be difficult to maintain the position. As the evidence fails to show him unable to obtain or maintain substantially gainful employment, the appeal is denied. The Board has considered the lay statements and testimony of the Veteran regarding the capacity to work throughout the entire period on appeal. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran’s employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the functional impact of the Veteran’s service-connected disabilities on the capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of unemployability, and the appeal is denied. It is noted that the September 2020 Board remand requested that the Veteran provide authorizations to obtain pertinent private (non-VA) records. Despite a request from VA for such an authorization, he did not respond. The duty to assist is not a one-way street, and as such remand to obtain these records is not currently appropriate. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The September 2020 remand also asked that the examiners discuss the functional impact of the Veteran’s service connected disabilities as it related to a work environment, which was undertaken. To that end, the Board has considered the functional impact of all the Veteran’s service connected disabilities as described by the medical evidence in rendering a decision on unemployability. The law is clear that the ultimate TDIU determination is one for the adjudicator and not a medical examiner. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (quoting 38 C.F.R. § 4.16(a)). That is to say, a TDIU determination is not medical in nature, and it is not the province of medical examiners to opine on whether a Veteran’s service-connected disabilities preclude substantially gainful employment. To the extent that the examiner’s offered opinions as to the Veteran’s employability, it was accompanied by a detailed description of the disabilities as well as the functional limitations that they caused, which the Board has taken into account. Another remand for a medical examiner to comment on unemployability is outside the examiner’s purview as the question of employability belongs to the VA adjudicator. Therefore, another remand is not required. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.