Citation Nr: 21021294 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-11 542A DATE: April 12, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his service-connected diabetes mellitus type II (which includes peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities) renders him unable to obtain or maintain a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service in the United States Army from November 1966 until his honorable discharge in September 1968, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and Vietnam Campaign Medal. The Board of Veterans’ Appeals (Board) thanks the Veteran for his service to our country. This matter is before the Board on appeal from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes in response to the June 2016 Statement of the Case issued in this case, the Veteran submitted a substantive appeal (VA Form 9) in September 2016. The Board observes VA sent correspondence to the Veteran in October 2016 advising that his VA Form 9 could not be accepted as the time limit to continue his appeal had passed. However, since that time, both the RO and the Board have treated the substantive appeal as if it had been timely filed. Under such circumstances, VA has waived the failure, if any, to file a timely VA Form 9. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). 1. Entitlement to a TDIU is granted. The Veteran maintains his service-connected disabilities, specifically, his diabetes mellitus type II and diabetic complications of peripheral neuropathy, render him unable to obtain and retain substantially gainful employment. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). 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 gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only once such disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. 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). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the United States Court of Appeals for Veterans Claims (Court) defined the term “unable to secure and follow a substantially gainful occupation” 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, Bureau of the Census, as the poverty threshold for one person. The noneconomic component includes consideration of the following: 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. The sole fact a Veteran is unemployable or has difficulty obtaining employment is not enough. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). “A high rating in itself is recognition the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.” Id. Substantially gainful employment is employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran meets the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a). The Veteran is service-connected for diabetes mellitus type II rated as 40 percent disabling, peripheral neuropathy left upper extremity rated as 20 percent disabling, peripheral neuropathy right upper extremity rated as 20 percent disabling, peripheral neuropathy left lower extremity rated as 10 percent disabling, and peripheral neuropathy right lower extremity rated as 10 percent disabling. He has also been awarded service connection for posttraumatic stress disorder, rated as 70 percent disabling. Thus, the Veteran satisfies the percentage requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU. Under 38 C.F.R. § 4.16(a)(2) disabilities resulting from a common etiology are considered one disability for purposes of TDIU. Here, the “one disability” is a combination of disabilities may be considered collectively because they result from a common etiology; the disabilities being (1) diabetes mellitus type II, (2) left upper extremity peripheral neuropathy, (3) right upper extremity peripheral neuropathy, (4) left lower extremity peripheral neuropathy, and (5) right lower extremity peripheral neuropathy. These five disabilities qualify as one collective disability for TDIU consideration purposes, because they result from a common etiology (herbicide exposure). See 38 C.F.R. § 4.16. In pertinent part, the Veteran’s combined evaluation was 60 percent disabling from May 14, 2001 to June 18, 2010, 70 percent disabling beginning June 18, 2010, and 90 percent from September 29, 2016. The Veteran met the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a). Thus, the issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected diabetes mellitus type II (which includes peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities). Upon review of the record, the Board finds a TDIU is warranted. In his April 2013 VA Form 21-8940 Application for Increased Compensation Based on Unemployability, the Veteran reported his service-connected diabetes mellitus type II and peripheral neuropathy prevent him from securing or following any substantially gainful occupation; the Veteran also reported nonservice-connected conditions of sleep apnea and heart valve condition prevent him from securing or following any substantially gainful occupation. The Veteran reported completing one year of college and two years of Electrician Trade School. Regarding his occupational history, the record reflects the Veteran worked at Local 292 Union as an Electrician from October 1982 to October 2002. The Veteran stated his disabilities affected full-time work in October 2002, and he became too disabled to work in April 2013. See March 2016 VA Form 21-8940. On his April 2013 VA Form 21-8940, he reported being currently employed at Diamante, a private membership golf club. He was hired in March 2003 and worked in Golf Course Maintenance. He worked approximately two hours a day, six to ten hours per week, with a reported annual income of $2,982.48. See April 2013 VA Form 21-8940; see also December 2013 VA Form 21-4192. The medical evidence supports a finding of TDIU due to his service-connected diabetes mellitus type II (which includes peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities). The Veteran was afforded a VA peripheral nerve examination in May 2002. Evaluation of the Veteran’s peripheral nerve function of his lower extremities showed the Veteran experienced significant difficulties in differentiation between sharp and dull objects; Veteran did not feel light touch. The Veteran was unable to differentiate to sharp objects if the distance between them is less than 4 cm. Evaluation of peripheral nerve function of his upper extremities showed the Veteran was unable to determine light touch from elbow to the end of his fingers, and he experienced difficulties in differentiation between sharp and dull objects. The Veteran was afforded a VA diabetes mellitus examination in August 2013. The examination report reflects the Veteran’s diabetes mellitus was managed with a restricted diet and he was prescribed insulin. Additionally, he required regulation of activities as part of medical management of his diabetes mellitus. Regarding functional impact, the examiner stated the Veteran’s diabetes mellitus impacts his ability to work. The examiner remarked, extreme exertional activities can lower glucose. The examiner indicated that sedentary work is acceptable, and noted that the Veteran worked part-time at a golf course. In conjunction with the diabetes mellitus examination, a diabetic peripheral neuropathy examination was also completed. The Veteran reported decreased sensory in his hands and feet with paresthesias in hands. The examination report reflects the Veteran experienced mild paresthesias and/or dysesthesias and numbness in both upper extremities. The Veteran experienced mild paresthesias and/or dysesthesias and numbness in both lower extremities. He also had decreased light touch sensation in his feet and toes, as well as decreased vibration sensation. The examiner indicated the Veteran’s upper extremity neuropathy affected his median nerve and ulnar nerve, to a mild level of severity. The examiner indicated the Veteran’s lower extremity neuropathy affected his sciatic nerve and femoral nerve, to a mild level of severity. Regarding functional impact, the examiner stated the Veteran’s peripheral neuropathy did not impact his ability to work. The Veteran was afforded a VA diabetes mellitus examination in March 2016. The examination report reflects the Veteran’s diabetes mellitus was managed with a restricted diet and he was prescribed insulin (insulin pump). Additionally, he required regulation of activities as part of medical management of diabetes mellitus. In conjunction with the diabetes mellitus examination, a diabetic peripheral neuropathy examination was also completed. The examination report reflects the Veteran experienced mild paresthesias and/or dysesthesias and numbness in both upper extremities. He had decreased light touch sensation at the shoulder areas, as well as decreased vibration sensation. The Veteran experienced mild paresthesias and/or dysesthesias and numbness in both lower extremities. Additionally, light touch sensation testing was absent in his feet and toes, position sense was decreased, and vibration sensation was absent. The examiner indicated the Veteran’s upper extremity neuropathy affected his radial nerve, median nerve, and ulnar nerve to a mild level of severity. The examiner stated the Veteran’s lower extremity neuropathy affected his sciatic nerve to a moderate level of severity. Regarding functional impact, the examiner stated the Veteran had been working at a golf course, so his neuropathy had no impact on physical or sedentary employment. On his September 2016 VA Form 9, the Veteran stated he had been working minimally at his previous job, about ten hours a week, and he was no longer employed due to his service-connected disabilities. He stated he stopped working in June 2016 due to his lower extremity peripheral neuropathy and memory loss caused by his insulin dependency. See September 2016 VA Form 9. When jobs are not realistically within his or her physical and mental disabilities, a Veteran is determined unable to engage in a substantially gainful occupation. Moore, 1 Vet. App. 356. In making this determination, consideration may be given to factors such as the Veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. 361. The Board notes the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners’ conclusions are not dispositive. However, the examiners’ observations regarding functional impairment due to the service-connected disabilities go to the question of physical or mental limitations that may impact the Veteran’s ability to obtain and maintain employment. Additionally, the Board affords significant probative value to the Veteran’s lay statements regarding the limitations caused by his service-connected disabilities. Upon review of all lay and medical evidence, and after affording the Veteran the benefit of the doubt, the Board finds the Veteran’s level of disability, given his education, training, and experience, would preclude the average person from obtaining or retaining substantially gainful employment of some type based solely on his service-connected diabetes mellitus type II ((which includes peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities). Van Hoose, 4 Vet. App. at 363. Pursuant to guidance in Ray, in first considering the economic component, the Board finds the Veteran’s employment at the private golf course was marginal, as his annual income was around $3,000. The Board notes 38 C.F.R. § 4.16(a) establishes that marginal employment generally shall be deemed to exist when a Veteran’s earned annual income is less than the poverty threshold for one person, as established by the United States Department of Commerce, Bureau of the Census. The Board notes the Veteran’s income was below the poverty threshold for one person and thus constitutes marginal employment for VA purposes. Therefore, it is not substantially gainful employment. See 38 C.F.R. § 4.16(a). Ultimately, the Board finds the Veteran’s diabetes mellitus type II requires regulation of activities. Additionally, peripheral neuropathy of the bilateral upper extremities results in an inability to lift, carry, push, pull, and perform gross and fine manipulation due to pain, numbness, paresthesias and/or dysesthesias in both upper extremities. Furthermore, the Veteran’s peripheral neuropathy of the bilateral lower extremities impairs his ability to stand, walk, climb, kneel, or squat due to pain, numbness, and paresthesias and/or dysesthesias in both lower extremities. His career work as an electrician undoubtedly required lifting and carrying, dexterous use of his hands, as well as the ability to stand, walk, and kneel for many hours at a time. Moreover, the functional impairment due his service-connected neurologic disabilities would likely impact his ability to perform sedentary employment, such as jobs that would require dexterity with typing. Based on the foregoing, the Board finds the evidence of record is at least in equipoise on the question of whether the Veteran’s service-connected diabetes mellitus type II (which includes peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities) precludes the Veteran from securing and following substantially gainful employment for which he would otherwise be qualified. The nature and the severity of the Veteran’s diabetes mellitus type II and peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities make it unlikely the Veteran would be able to perform the duties of an individual with his education and experience as an electrician. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s service-connected diabetes mellitus type II (which includes peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities) prevent him from maintaining substantially gainful physical and sedentary employment. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim for a TDIU is granted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.