Citation Nr: 21022340 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-25 629 DATE: April 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT For the entire period on appeal, the Veteran has not been unable to secure or maintain substantially gainful employment as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army during the Vietnam Era from February 1968 to February 1971. TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 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). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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 totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability rating is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned 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. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The Veteran contends that he is unable to work due to multiple service-connected disabilities, neuropathies, and diabetes. The Veteran contends that he became unemployable due to disability in December 2002. As of December 2002, the Veteran was not service connected for any disability. As of October 2012, the Veteran is in receipt of a 30 percent disability rating for adjustment disorder, a 20 percent disability rating for type II diabetes, a 10 percent disability rating for right lower peripheral neuropathy, a 10 percent disability rating for left lower peripheral neuropathy, and a 10 percent disability rating for ischemic heart disease. The combined rating for compensation of all the service-connected disabilities is 60 percent from October 2012. As such, the service-connected disabilities do not meet the rating criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a). The question then is whether the issue of TDIU should be referred to the VA Director of Compensation for initial adjudication under 38 C.F.R. § 4.16(b). Having considered all the evidence of record, lay and medical, the Board finds that referral under 38 C.F.R. § 4.16(b) to the Compensation and Pension Director is not warranted. While the evidence of record reflects that the service-connected disabilities cause some functional limitations and impairment, the evidence of record does not suggest that the service-connected disabilities rendered the Veteran unable to secure or maintain substantially gainful employment. The Veteran received a 20 percent disability rating for type II diabetes in September 2010. The rating was effective from July 2010. The rating decision noted that the Veteran first was diagnosed with diabetes in November 2006. The 20 percent rating was granted based on use of oral medication and a restricted diet. A higher 40 percent rating was determined to not be warranted because the Veteran did not need to regulate activities in order to treat or manage the diabetes. See September 2010 Rating Decision. The Veteran received a 10 percent disability rating for both the lower left and lower right extremity peripheral neuropathies, secondary to the diabetes. The 10 percent ratings were assigned based on mild incomplete paralysis. A higher 20 percent rating for the neuropathies of either lower extremity was not warranted because the evidence did not indicate moderate nerve damage. See October 2012 Rating Decision. A January 2013 VA examination was performed to determine how the service-connected disabilities effected the Veteran’s employability. The examiner opined that the diabetes would have no impact on physical or sedentary employment; and the neuropathies would prevent employment that required long periods of standing or walking, but not sedentary employment. An April 2013 VA examination noted that the peripheral neuropathies caused mild pain and mild numbness bilaterally, resulting in mild, incomplete paralysis of the lower extremities. A VA treatment record dated February 2017 shows the Veteran reported having used a wheelchair, but having regained enough mobility to switch to a walker instead. Separately, the Veteran reported that he had retired from Chrysler with a pension and disability benefits. In May 2018, the Board issued an opinion granting service connection for ischemic heart disease. The AOJ rated the heart disease as 10 percent disabling due to requiring continuous medication. A higher rating of 30 percent was determined to not be warranted, as there was no evidence of hypertrophy or dilatation, nor was the heart disease causing fatigue, dyspnea, angina, dizziness, or syncope. See August 2019 Rating Decision. In November 2020, the Veteran was granted service connection for adjustment disorder with mixed anxiety and depressed mood. The Veteran received a 30 percent rating effective October 29, 2012. The 30 percent rating was granted based on anxiety and chronic sleep impairment. A higher rating was denied because the AOJ found no evidence of flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. See November 2020 Rating Decision. In January 2021, the Veteran received a VA examination to determine unemployability. The VA examiner opined that the Veteran has (1) difficulty attending to or is easily distracted from the task at hand; (2) significant difficulty accepting supervision or receiving instructions without becoming angry; (3) significant difficult functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others; and (4) disrupted sleep, resulting in fatigue at work, making concentration and focus on work assignments difficult. The examiner distinctly denied that the Veteran has (1) difficulty maintaining concentration and focus on work over a period time, tends to skip from one task to another without completing the prior task; (2) intrusive thoughts which interfere with the ability to stay focused on the task at hand; (3) significant difficulty remembering instructions and details of work assignments; (4) an inability to tolerate being around other people in any setting for more than a few minutes; and (5) depression that makes it difficult to sustain energy and motivation to complete assignments at work. In January 2021, the Veteran received an examination for the adjustment disorder with mixed anxiety and depressed mood. The examiner noted that the Veteran has some occupational and social impairment characterized as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted that after service, the Veteran worked for the Chrysler motor company for around 30 years, until he retired in 2002. He finished his career at Chrysler as an inspector. He had some minor conflicts at Chrysler with other employees, including nearly striking a foreman who would not let go of the Veteran and nearly fighting another employee who made disparaging remarks towards the Veteran. The Veteran reported having some close colleagues at work who he trusted. Symptoms noted by the examiner included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. Examining first physical limitations faced by the Veteran, the evidence shows that the Veteran does have mild paralysis of the lower extremities; thus, would have difficulty standing or walking for long periods of time. The evidence does not rule out the ability to perform sedentary work, or even to use a wheelchair. No other physical limitations are apparent in the record. Examining mental impairments, the Veteran does have some mental limitations. The adjustment disorder symptoms include anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. However, VA examiners have assessed that the Veteran does not suffer panic attacks; possess normal speech, judgment, impulse control, and abstract thinking; is spatially oriented to time and place; does not suffer from persistent delusions or hallucinations; does not neglect hygiene or grooming; and is no danger to himself and others. While suspiciousness and anxiety has caused conflicts with co-workers in the past, the Veteran reported that he has never actually been in a fight, and that there were some co-workers with whom he had good, trusting relationships. Finally, the Veteran reported that he has a high school diploma, and years of training and experience as an inspector for Chrysler. Having reviewed all the evidence of record, both lay and medical, the Board finds that the lay and medical evidence suggests that the criteria for a TDIU have not been met for any period on appeal. The lay and medical evidence of record indicates that the Veteran retired from the workforce with a pension, as opposed to being incapable of continuing work; and is not incapable of sedentary work despite some functional impairment caused by the service-connected disabilities. As such, the evidence as a whole suggests that the Veteran was not rendered unable to obtain or maintain employment due to service-connected disabilities. For these reasons, the requirements for referral for adjudication of TDIU have not been met. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Charles Plambeck 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.