Citation Nr: 21022778 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-24 063 DATE: April 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Prior to November 16, 2019, the Veteran was service-connected for nephropathy associated with diabetes mellitus rated as 60 percent disabling, a surgical scar of the right lower leg rated as 30 percent disabling, diabetes mellitus rated as 20 percent disabling, peripheral vascular disease of the right lower extremity rated as 20 percent disabling, left lower extremity peripheral neuropathy rated as 20 percent disabling, peripheral neuropathy of the right lower extremity rated as 20 percent disabling and scars of the right lower extremity and erectile dysfunction rated as noncompensable; for a total disability rating of 90 percent from April 12, 2018 forward. 2. Resolving reasonable doubt in the Veteran’s favor his service-connected disabilities are shown to render him unable to secure and follow all forms of substantially gainful employment. CONCLUSION OF LAW 1. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; (2012) 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from January 1963 to April 1967. The Veteran’s claim was before the Board in December 2020 and was remanded for additional development. Additional development including issuing a supplemental statement of the case (SSOC) has been associated with the claims file, and as such there has been substantial compliance with the prior remand directives, and the appeal is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU The Veteran contends that he has been unable to secure and maintain employment due to his service-connected disabilities. Specifically, the Veteran contends that his peripheral vascular disease and peripheral neuropathy of his lower extremities and painful scars has resulted in increased pain, weakness, difficulty with ambulation, standing, lifting and walking. The Veteran contends that as a result of his service-connected disabilities and associated symptomology, he has been unable to secure or maintain substantially gainful employment during the period on appeal. From November 16, 2019 forward, the Veteran has been in receipt of a 100 percent disability rating, and as such the Board will consider whether entitlement to TDIU is warranted for the period in which the Veteran was not in receipt of a total disability rating which is prior to November 16, 2019. The Veteran submitted a claim for TDIU in October 2016. 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). When two or more disabilities are treated as one, the ratings for those disabilities are combined using the combined ratings table. 38 C.F.R. § 4.25. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). 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, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. In this case the Veteran does meet the threshold criteria for TDIU. See 38 C.F.R. § 4.16. Prior to November 16, 2019, the Veteran was service-connected for nephropathy associated with diabetes mellitus rated as 60 percent disabling, a surgical scar of the right lower leg rated as 30 percent disabling, diabetes mellitus rated as 20 percent disabling, right lower extremity peripheral vascular disease rated as noncompensable from December 23, 2014 and as 20 percent disabling from March 11, 2016, left lower extremity peripheral neuropathy rated as 20 percent disabling from April 12, 2018, right lower extremity peripheral neuropathy rated as 20 percent disabling from April 12, 2018 forward, and a right lower extremity scar and erectile dysfunction rated as noncompensable. The Veteran had a combined disability rating of 80 percent prior to April 12, 2018, and a 90 percent combined disability rating from April 12, 2018 forward. During this period, the Veteran had one disability rated at 60 percent as well as one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Thus, the Veteran met the threshold criteria for TDIU. From November 16, 2019 forward, the Veteran was service-connected for nephropathy associated with diabetes mellitus rated as 60 percent disabling, peripheral neuropathy of the left lower extremity and vascular disease rated as 60 percent disabling, surgical scar of the right lower leg rated as 30 percent disabling, diabetes mellitus rated as 20 percent disabling, right lower extremity peripheral vascular disease rated as 20 percent disabling, left lower extremity peripheral neuropathy rated as 20 percent disabling, right lower extremity peripheral neuropathy rated as 20 percent disabling, right lower extremity surgical scars rated as noncompensable and erectile dysfunction rated as noncompensable; for a total disability rating from November 16, 2019 forward. The Veteran served on active duty in the U.S. Air Force from January 1963 to April 1967. The Veteran’s Air Force occupational specialty was an administrative specialist. Prior to service, the Veteran graduated from high school. Post-service the Veteran reported graduating from college with a bachelors degree in business and worked as a consultant, in sales, and for the federal government abroad. Most recently the Veteran reported working for the U.S. Embassy abroad as a housing and facilities manager. The Veteran contends that he has been unable to work since February 2013 due his service-connected disabilities. Specifically, the Veteran reports that he was no longer able to work due to his service-connected diabetes mellitus, nephropathy and lower extremity painful scars. The Veteran reports ongoing pain, weakness, imbalance and instability with difficulty, standing, stooping, kneeling and climbing stairs which was required in his work as a facilities and housing manager. The Veteran reported last working in February 2013, when he had to stop working due to pain, weakness and issues with instability and balance. There are conflicting opinions of record as to whether the Veteran is unable to secure or follow substantially gainful employment for his service-connected disabilities during the period on appeal. The Veteran was afforded a VA diabetes mellitus examination in May 2015. The examiner noted diabetes mellitus type II with diabetic nephropathy or renal dysfunction and erectile dysfunction and these had permanently aggravated his peripheral vascular disease. The examiner noted that the Veteran’s diabetes mellitus and complications of his diabetes do not impact his ability to work. A May 2015 VA artery and vein conditions examination noted peripheral vascular disease. The Veteran reported severe right lower leg pain and pain which increases with exertion. Examination noted claudication on walking more than 100 yards of the right leg. The Veteran reported a painful scar of the right leg. The examiner noted that the Veteran’s vascular condition did not impact his ability to work, as he continued to work as a truck driver. In June 2016 progress notes, the Veteran’s private physician evaluated neuropathy and note symptoms such as an inability to sense hot and cold, worsening balance, and impairment of function for buttons, turning keys, and handwriting. The Veteran was afforded a VA artery and vein examination in February 2017. The examiner noted peripheral artery disease. The Veteran reported painful residual surgical scars of the right lower leg with revascularization. Claudication on walking of the right leg was between 25 and 100 yards on a level grade at 2 miles per hour. The examiner noted a painful or unstable scar of the right leg. The examiner noted that the Veteran’s vascular condition impacts his ability to work in that his peripheral artery disease limits walking to under 100 yards and limits walking on hills and stairs. In addition, the Veteran was afforded a diabetic sensory motor peripheral neuropathy VA examination in April 2018. The examiner noted lower extremity diabetic peripheral neuropathy. Examination noted moderate right and left lower extremity intermittent pain, moderate right and left lower extremity paresthesias, and mild right and left lower extremity numbness. The Veteran’s diabetic peripheral neuropathy impacts his ability to work in that it limits walking and he lost 1 week of work in the last 12 months. The examiner noted that the Veteran’s symptoms of pain, numbness and paresthesias in his ankles and feet are likely due to peripheral neuropathy associated with his diabetes mellitus. An August 2017 private opinion from the Veteran’s physician noted that the Veteran is unable to secure or follow a substantially gainful occupation. The examiner noted that the Veteran’s neuropathy associated with diabetes mellitus, painful residual surgical scars, diabetes mellitus and peripheral vascular disease of the right lower extremity. The private physician noted that the Veteran is unable to work due to his left foot drop foot. A private opinion from September 2017 has been associated with the claims file. The Veteran’s primary care provider noted that based on a review of the Veteran’s medical history and ongoing care and treatment that he has been unable to secure or follow substantially gainful occupation. The primary care provider reported that the Veteran is unemployable largely due to his neuropathy associated with his diabetes mellitus as well as his peripheral vascular disease in the right lower extremity. These conditions cause pain, limit the Veteran’s ambulation and result in him being unsteady on his feet, limit standing and walking for any period of time. Additionally, the Veteran experiences symptoms of numbness and decreased sensation due to these conditions which further limit his gait, movement and the ability to stand as well as carry, lift and transport objects. A private vocational report from February 2020 has been associated with the claims file. The consultant noted a file review, provided lengthy summaries of the records of medical care and examination, and performed a telephone interview. The report noted that the Veteran has a bachelors degree in business. The Veteran reported some vocational training in-service. The Veteran previously reported enjoying hobbies including golf, scuba diving and tennis but these became difficult due to increased pain. The consultant noted the Veteran reports of ongoing difficulty with completing activities of daily living including bathing, shaving, and cooking and that these limitations are due to the pain from his neuropathy and muscle weakness and numbness and have been ongoing for several years. The Veteran reported that approximately four years ago he began experiencing increased functional limitations including difficulty sitting, standing and walking. Additionally, the Veteran reports that his pain results in difficulty maintaining focus, concentration and remembering tasks. The vocational rehabilitation consult noted that the Veteran has an inability to understand and retain detailed instruction and maintain attention and concentration, an inability to complete normal workday without breaks, and regularly uses a power wheelchair and/or cane for ambulation. Additionally, the Veteran may experience difficulty interacting with others due to pain, and difficulty crouching, stooping, crawling or kneeling. The vocational evaluation found that the Veteran’s nephropathy, diabetes mellitus and peripheral neuropathy and residuals scars have resulted in limitations including an unsteady gait with frequent falls, use of a power wheelchair and cane for ambulation, numbness in his foot and ankle, burning pain, limited ability to walk or stand on hills or stairs, and difficulty ambulating for extended periods of time, poor endurance, and difficulty standing, lifting, carrying and transporting objects, further pain limits his ability to retain information and concentrate and focus. The evaluation noted that treatment records since August 2016 have noted the Veteran to be a moderate fall risk due to his unsteadiness and increased weakness and pain. The private vocational opinion found that the Veteran’s service-connected conditions are likely to have resulted in his inability to secure or maintain substantially gainful employment at any exertional level as of June 1, 2016 forward. VA and private treatment records have been associated with the claims file. VA treatment records note the Veteran underwent an above the knee amputation of the left leg. VA treatment records note the Veteran was issued a power scooter and lift for his vehicle. Treatment records note the Veteran is limited to walking under 100 yards due to his peripheral vascular disease which also limits his ability to walk on hills or stairs. Additionally, September 2017 treatment records note an increase in reported falls recently and that the Veteran reported increased difficulties completing activities of daily living including bathing, dressing, cooking, shopping and banking due to his imbalance, unsteady gait and increased pain. VA treatment records note the Veteran regularly attends his VA appointments with assistance from his wife. The Veteran maintains and communicates with his VA treatment providers via telephone and email. Treatment records note reports of increased pain, weakness and unsteadiness and that he was an increased fall risk. The Veteran reported needing assistance with activities of daily living at times. In the Veteran’s October 2016 VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability the Veteran reported that he last worked in February 2013. The Veteran reported that he became too disabled to work in February 2013. The Veteran reported that his most recent employment was working as a Housing manager for the U.S. Embassy in China. The Veteran reported that he stopped working due to his service-connected disabilities and increased symptomology including his diabetic neuropathy, diabetes mellitus and right lower extremity painful scar. The Veteran reports increased pain, increased instability and regular use of a power wheelchair for ambulation with difficulty standing, lifting and carrying objects. The Veteran reports that his increased pain results in difficulty concentrating, maintaining focus and completing tasks. Treatment records note the Veteran had experience post-service working as a consultant, in sales and for the federal government. The Veteran reported that he worked as a self-employed consultant from 1997 to 2007, and then as a production manager for a seafood company in 2008. Here in the Veteran was responsible for the sale and supply of seafood to various companies in Spain and Italy, requiring regular site visits and travel. The Veteran most recently worked as a housing and facility manager for the U.S. Embassy in China and Brazil. The Veteran worked in facility maintenance at the U.S. Embassy in Brazil from March 2009 to March 2011 and as the housing manager at the U.S. Embassy in China from December 2011 to February 2013. His most recent employment involved light physical demands. The private vocational evaluation noted that light physical demand capacity jobs typically require exerting force to 20 pounds occasionally and 10 pounds frequently with significant standing, walking, pushing and/or pulling. The Veteran reported lost time due to his service connected disabilities and most recently losing 5 months of time lost due to illness while working at the U.S. Embassy in China and 3 months lost while working at the U.S. Embassy in Brazil. The Veteran has past experience working as a consultant and being self-employed, in sales and most recently in housing and facilities management and maintenance. The Veteran’s statements and medical and vocational opinions of record note that the Veteran is no longer able to lift or stand for prolonged periods due to his service connected disabilities. Further, treatment record reports note that the Veteran has experienced increased pain which impacts his ability to focus, concentrate and interact with others at times. A private opinion from September 2017 from the Veteran’s primary care provider noted that based on a review of the Veteran’s medical history and ongoing care and treatment that he has been unable to secure or follow substantially gainful occupation. The primary care provider reported that the Veteran is unemployable largely due to his neuropathy associated with his diabetes mellitus as well as his peripheral vascular disease in the right lower extremity. These conditions cause pain, limit the Veteran’s ambulation and result in him being unsteady on his feet, limit standing and walking for any period of time. Additionally, a February 2020 vocational opinion found that the Veteran’s nephropathy, diabetes mellitus and peripheral neuropathy and residuals scars have resulted in limitations including an unsteady gait with frequent falls, use of a power wheelchair and cane for ambulation, numbness in his foot and ankle, burning pain, limited ability to walk or stand on hills or stairs, and difficulty ambulating for extended periods of time, poor endurance, and difficulty standing, lifting, carrying and transporting objects, further pain limits his ability to retain information and concentrate and focus. The evaluation noted that treatment records since August 2016 have noted the Veteran to be a moderate fall risk due to his unsteadiness and increased weakness and pain. The private vocational opinion found that the Veteran’s service-connected conditions are likely to have resulted in his inability to secure or maintain substantially gainful employment at any exertional level as of June 1, 2016 forward. On the other hand, opinions of record also note the Veteran’s service-connected symptomology does not interfere with his overall functioning. VA treatment records note that the Veteran is often able to complete activities of daily living, and at times benefits from assistance. Treatment records also note during the appeal period the Veteran has proficiency in computers for use in leisure activities and commincating with his VA treatment providers. The VA artery and vein examination in February 2017 noted that the Veteran’s vascular condition impacts his ability to work in that his peripheral artery disease limits walking to under 100 yards and limits walking on hills and stairs. Further, the VA examination in April 2018 noted that the Veteran’s diabetic peripheral neuropathy impacts his ability to work in that it limits walking and he lost 1 week of work in the last 12 months. Given the Veteran’s education and employment background it is unlikely that he could find substantially gainful employment in his area of experience and training which is in consulting, sales and housing and facilities maintenance. The Veteran most recently worked in housing and facility maintenance. The Veteran and associated opinions and treatment records note that he is no longer able to work and he is unable to likely work in the housing and sales fields due to his physical limitations associated with his service connected disabilities. Even with consideration of the Veteran’s basic computer skills it is not clear that his knowledge and experience could translate into an online only occupation. The Board finds the private opinion from September 2017 and the private vocational opinion from February 2020 are both entitled to probative weight. When considering the collective impact of the Veteran’s service connected disabilities and the Veteran’s pervious work experience, the Board concludes that the Veteran was unable to secure or follow substantially gainful occupation as a result of his service-connected disabilities. Although the opinions as to the nature and severity of the Veteran’s occupational impairment individually and in combination are not all supportive, the Board finds that the evidence of record is in relative equipoise as to whether the manifestations of his service connected disabilities combine to render him unable to secure or follow substantially gainful employment during this period on appeal. Resolving reasonable doubt in the Veteran’s favor the Board will grant the claim. As such the Board finds entitlement to TDIU is warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.