Citation Nr: 21025546 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-21 243 DATE: April 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran has a single disability rated 40 percent or more for TDIU threshold purposes, and a combined rating of 90 percent, effective since June 8, 2015. 2. Resolving doubt in the Veteran’s favor, he is unable to secure or maintain substantially gainful employment consistent with his occupational and educational history due solely to service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1964 to June 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision. Although the Veteran initially requested Board hearing, he submitted a statement on April 20, 2021, to withdraw his request. The case was transferred to his representative for arguments, but none were submitted. 1. Entitlement to a TDIU The Veteran filed a claim for TDIU in August 2017 based on the effects of his coronary artery disease and diabetes mellitus with peripheral neuropathy. A TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, a schedular percentage threshold must be met to be eligible for TDIU. If there are two or more service-connected disabilities, as in this case, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities for a combined overall rating of 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19. However, all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, if the schedular threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). In determining unemployability, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). There is an economic component, which includes whether any employment was marginal; and a non-economic component, which includes mental and physical capacity based on occupational history, education, skills, and training. Ray v. Wilkie, 31 Vet. App. 58 (2019). Consideration should be given to prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. Pederson v. McDonald, 27 Vet. App. 276 (2015). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In this case, the Veteran meets the schedular percentage threshold for a TDIU, effective since June 8, 2015, when he had a single disability for TDIU purposes rated 40 percent, and a combined rating for multiple disabilities of 70 percent. The Veteran has a single disability rated 40 percent rating, for TDIU purposes, effective since June 8, 2015, when considering his diabetes mellitus, type II, with erectile dysfunction rated 20 percent, together with his associated bilateral lower extremity peripheral neuropathy of the sciatic nerve, rated 10 percent each. The Veteran also has ratings for associated diabetic peripheral neuropathy of the bilateral upper extremities, rated 20 percent each, effective April 15, 2016. The Veteran’s coronary artery disease, status post coronary artery bypass graft with angioplasty stenosis (previously rated as ischemic heart disease status post two vessel coronary artery bypass graft or CABG), is rated 0 percent (noncompensable), effective March 2, 2009, 30 percent, effective June 22, 2010, and 60 percent, effective since August 1, 2017. He is also service-connected for an associated chest scar, rated 0 percent disabling. The Veteran is also service-connected for prostate cancer residuals of urinary impairment, rated 10 percent effective May 18, 2010, and 40 percent since April 15, 2016; and a lower abdominal scar rated 0 percent, effective June 2, 2016. The Veteran’s combined disability rating is 70 percent, effective June 8, 2015, 80 percent, effective April 15, 2016, and 90 percent, effective August 1, 2017. Additionally, resolving reasonable doubt in the Veteran’s favor, he has not had the physical capacity to obtain and maintain substantially gainful employment consistent with his educational and occupational history when considering the impacts of his service-connected disabilities throughout the appeal period. In April 2017, the Veteran submitted a claim for increase for his diabetes with upper and lower extremity peripheral neuropathy, resulting in the above ratings. In an August 2017 formal TDIU claim (VA Form 21-9840), the Veteran reported two years of college, but no other training or education history. He indicated that coronary artery disease, diabetes mellitus, and peripheral neuropathy caused him to be unemployable. He asserted that these disabilities first affected full-time employment, and he became too disabled to work, on June 8, 2015. The Veteran reported that he last worked full-time in October 1997 as chief of security, and he did not leave his last job due to disability. The Veteran reported working full-time as a security chief in three casinos from July 1994 through October 1997, and previously as a carpenter for a construction company from 1986 to 1994. An employer response from the construction company indicated that he retired in 1994, and responses from the casinos found no documentation or information. Information from the Social Security Administration reflects an initial entitlement date in February 2008, which would be at age 62 based on the Veteran’s date of birth, with no disability onset date. Thus, they are retirement or age-based. The Veteran and his wife have described severe problems in the Veteran’s and feet, which require him to use a walker to ambulate more than a very short distance. He has stabbing or shooting pain, tingling, numbness, and swelling, which they believe is due to his service-connected diabetic peripheral neuropathy in the lower extremities. The Veteran has pain and abnormal sensations when standing, sitting, walking, or laying down. They assert that these problems prevent any gainful employment, including of a sedentary nature. He also has pain and numbness in both hands or upper extremities. The Veteran’s wife asserted that he has been totally disabled since 2005, but she indicated that his increased lower extremity difficulties began in about 2015. See, e.g., May 2017 correspondence, April 2018 VA Form 9, statements from Veteran’s wife in May 2017 and April 2018. Historically, an October 2010 VA examination noted that the Veteran had a history of a myocardial infarction (heart attack) with a two-vessel CABG. He had dyspnea on severe exertion. He did not take prescription medications for heart disease, although he took aspirin daily. The Veteran was also on Metformin for diabetes mellitus. He had a history of prostate cancer with radical prostatectomy and related erectile dysfunction with mild urinary incontinence. Concerning peripheral neuropathy, the Veteran’s bilateral upper and lower extremities had normal temperature, color, pulses, reflexes, motor strength and tone, sensory testing, and no trophic changes or dysesthesias. There was also no peripheral edema. VA examinations in June 2016 noted that the Veteran’s insulin requirement for his diabetes mellitus would prevent him from becoming a commercial truck driver. As to peripheral neuropathy, the Veteran reported that for the past year, he had been having a pins and needles sensation in his feet and a feeling that bugs are crawling on his shins at times, which the examiner noted was reflected in a June 8, 2015, treatment record. The examiner noted that the Veteran’s statin was changed and his symptoms got somewhat better, but the dysesthesias continued. Monofilament testing for objective sensory impairment was normal on June 8, 2016. The examiner noted that there were no upper extremity symptoms, but mild paresthesias and/or dysesthesias and numbness in the bilateral lower extremities. There was no indication of constant or intermittent pain in the lower extremities. Upon testing, the Veteran had normal strength, muscle tone, reflexes, and position sense. Sensation for light touch or monofilament was normal except at the bilateral feet or toes, which was decreased. Vibration sense was also decreased in both lower extremities, and cold sensation was not tested. There were trophic changes on the lower shins. The VA examiner found no upper extremity diabetic peripheral neuropathy, but summarized that the Veteran had peripheral neuropathy of the lower extremities with mild incomplete paralysis of the sciatic nerve bilaterally. The examiner opined that the Veteran’s lower extremity symptoms as reported for treatment in June 2015 were likely due to his statin or another cause. The June 2016 examiner also noted recent urology and primary care treatment records from 2016 indicating erectile dysfunction and minimal urinary stress incontinence, which required one to two pads per day, although the Veteran reported using two to four urinary pads per day during the VA examination. The June 2016 examiner recorded that the Veteran denied current cardiac symptoms and took aspirin for this condition. No exercise stress test or interview-based METs were given. The examiner stated that the Veteran’s limitation in METs level was due to multiple medical conditions, including the heart condition, and it was not possible to accurately estimate the percent of METs limitation attributable to each medical condition. The examiner explained that the Veteran’s METs were limited by myalgias, sciatica, obesity, and deconditioning. As such, the ejection fraction of 60 to 65 percent shown in a June 2016 echocardiogram was the best estimate of his cardiac ability in relation to his coronary artery disease. VA treatment records in September 2016 noted complaints of leg pain, but normal diabetic foot exam for pedal pulses, monofilament sensation, and visual examination. The Veteran reported aching and burning leg pain with numbness and weakness that had been present for two to three years, with the pain a little worse in the left leg. It typically started as a dull pain in the morning and progressed to severe pain by the late afternoon. He had fallen from a ladder twice recently due to numbness, could no longer mow his yard, and could not use a blanket over his feet at night due to burning. For his cardiac condition, the Veteran reported intermittent racing heart rate in bed in the morning, but he denied chest pain, palpitations, orthopnea, or pedal edema. For his prostate cancer urinary residuals, he reported voiding one or two times per night and using three pads per day for leakage. Testing for the upper extremities showed normal sensation and strength except for a slight decrease to 4 out of 5 for bilateral finger abduction. For the lower extremities, there was decreased sensation at the left thigh and decreased sensation to touch in both lower legs, left greater than right. The Veteran had normal strength with knee flexion and extension, 3+ popliteal pulses, and normal patellar reflexes but decreased (1+) ankle reflexes. There was slightly decreased strength of 4 out of 5 for ankle flexion and extension bilaterally, and decreased sensation to touch in the feet. The Veteran could feel monofilament testing throughout his feet, but he was slow to identify the location. Proprioception was intact to the big toes. The skin on the lower legs and feet had a brawny discoloration and was cool to touch and dry. Neurologically, cranial nerves II through XII were intact. The Veteran had an unsteady, hesitant gait, and he rose from the chair slowly to the examination table, using his hands to balance on the desk and table. He was unable to complete heel/toe walk and had lateral swaying with Romberg test. The assessment was bilateral lower extremity neuropathy, and the examiner noted that there was possible diabetic neuropathy, but the Veteran’s weakness was concerning. A January 2017 VA treatment record noted that the results of a December 2016 EMG/NCS study with diagnoses of predominantly sensory, predominantly small fiber, diabetic peripheral neuropathy; and bilateral carpal tunnel syndrome of moderate severity. The results reflected sural sensory responses with a slightly low amplitude bilaterally. Peroneal responses had a normal amplitude for the Veteran’s age. Motor conduction studies of the peroneal nerves, bilaterally, and the left tibial nerve were normal. There was prolongation of the median distal sensory and motor latencies bilaterally. Sensory motor conduction studies of the right ulnar nerve were normal. EMG testing was performed for all four limbs and was normal. A March 2017 VA treatment record noted that the Veteran had recently received a walker, and it was helping him when he was used it at times around his house. A March 2017 VA orthopedic surgery consult focused on the upper extremities and diagnosed bilateral carpal tunnel syndrome combined with diabetic neuropathy, noting the EMG results. The provider noted a history of diabetes for 20 years that was stable, along with stable coronary artery disease. The Veteran was walking with a walker that he reported was for balance due to neuropathy in his feet. An April 2017 VA physical therapy evaluation for neuropathic foot pain and a history of falls found mild edema and mildly diminished sensation to pain on the plantar surface of the toes bilaterally. The Veteran was able to ambulate without an assistive device with an antalgic, steppage gait pattern bilaterally, and he touched walls or stable surfaces intermittently and lightly for balance. When using a rollator (or rolling walker), his gait improved in cadence, step length, and speed The Veteran’s activity tolerance was lower than expected for his age. He was found to be a candidate for an electromagnetic adjunctive pain treatment system due to refractory pain in the feet interfering with function, including mobility and gait. A July 2017 VA examiner noted that the Veteran reported since his June 2016 VA examination that his lower extremity pain and numbness had progressed, particularly in the left leg. He described his pain as burning, tingling, and numbness, with some stabbing, which was present all the time but worse with walking, and was proximal to the knees on both sides. The Veteran felt like his balance was affected and had started using a walker to take the pressure off his legs and feet from what he believed was neuropathy and to assist with balance. Treatment was Gabapentin and electrical stimulation treatment several months ago. The Veteran reported that his neuropathy caused him to use a walker for walking more than 30 to 40 yards and that he felt unsafe on uneven ground or ladders. The examiner noted mild constant and intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness it the right lower extremity; and moderate constant and intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness it the left lower extremity. Testing showed normal motor strength and tone with no atrophy, normal reflexes and vibration sensation. Light touch or monofilament sensation was normal at the knee/thigh, but decreased at the ankle/lower leg and foot/toes bilaterally. Position sense was normal in the right lower extremity but decreased in the left lower extremity. Cold sensation was not tested. The examiner summarized that the Veteran had diabetic peripheral neuropathy with moderate incomplete paralysis of the sciatic nerve bilaterally. For work impact, prolonged standing and walking, especially on uneven surfaces, could be problematic. The examiner noted that the Veteran’s lower extremity neuropathy was atypical for diabetic etiology, e.g., preserved vibratory sensation and reflexes on examination, as noted by his primary care provider. However, the examiner stated that in the absence of competing etiology and with slight changes on EMG of the legs, the diagnosis was unchanged. The examiner noted that the Veteran’s lower extremity neuropathy was is purely sensory of moderate severity. In September 2017, a VA examiner noted that the Veteran’s diabetes mellitus, type II, was treated with oral hypoglycemic agents and insulin injections more than once per day, with no regulation of activities, and no impact on work. For peripheral neuropathy, the Veteran described an onset of symptoms three years ago with tingling in his hands and feet, constant dull pain, and difficulty feeling the bottom of his feet at time. He was placed on Gabapentin. The examiner noted constant pain that was mild in the upper extremities and moderate in the lower extremities, paresthesias and/or dysesthesias that were mild in the upper extremities and moderate in the lower extremities, and no numbness in the upper extremities but moderate numbness in the lower extremities. Testing showed normal strength, muscle tone, reflexes, and position sense. Light touch or monofilament testing was normal at the shoulder, forearm, and knee/thigh levels, but decreased at the hand/fingers, ankle/lower leg, and foot/toes levels bilaterally. Cold sensation was decreased for the bilateral upper and lower extremities. There were trophic changes of smooth shiny skin in the anterior tibial regions with hair loss bilaterally. The examiner summarized that there was upper extremity peripheral neuropathy that was mild for the radial, median, and ulnar nerves bilaterally; and lower extremity peripheral neuropathy that was moderate for the sciatic nerve bilaterally. The examiner described the work impact as reduced efficiency and locomotion due to peripheral neuropathy and instability of gait. The September 2017 examiner noted that the Veteran’s coronary artery disease had a history of CABG for blocked arteries with complaints of shortness of breath, chest pain, and dizziness. In April 2017, he was evaluated for chest pain and had a had a balloon angioplasty for stenosis of the coronary artery. Peripheral pulses were normal, and there was no peripheral edema in the lower extremities. No exercise stress testing was required as part of his treatment plan and the test was not without significant risk. An interview-based METs test found dyspnea, fatigue, angina, and dizziness at greater than 3 to 5 METs, which was consistent with activities such as light yard work (weeding), mowing the lawn (power mower), and brisk walking (4 mph). Impact on work from the Veteran’s coronary artery disease was fatigue, chest pain, and shortness of breath with moderate physical activity. The examiner stated that his prostate cancer residuals had no work impact. A September 2017 VA treatment record gave an assessment for the Veteran’s continued similar complaints of chronic bilateral lower extremity and foot pain of diabetic neuropathy versus claudication versus other, and additional studies were ordered. The Veteran also had chronic bilateral hand pain and paresthesias status post carpal tunnel release versus neuropathy versus other. He used a rolling walker daily with ambulation, and his activity had decreased significantly due to pain. The September 2017 record and an October 2017 cardiological consult noted that the Veteran had experienced two episodes of chest pain while walking slowly around his house since his balloon placement via angioplasty in April 2017. They occurred two to three weeks apart and were relieved by rest and nitroglycerin. The Veteran reported being able to walk short distances, but getting winded after 50 feet, and he stated that he felt primarily limited by his neuropathic leg pain. The Veteran underwent additional studies and consults to determine the underlying cause of his lower extremity symptoms in November 2017 and December 2017. Records in January 2018 noted that the Veteran was having pain out of proportion to the extent of his diagnosed diabetic neuropathy, and vascular study results did not indicate that ischemic pain was contributing to his discomfort. The provider stated that other causes should be considered, including a rheumatological source. Overall, the evidence shows that the Veteran’s heart disease and diabetic complications in the extremities increased over time, as reflected in the effective dates for service connection and staged compensable ratings. The reports by the Veteran and his wife for his claim and for treatment indicate that his increased lower extremity symptoms began in approximately 2015, prior to his 2017 claim. The Veteran has multiple medical conditions. VA examiners have opined that the Veteran’s coronary artery disease results in chest pain and fatigue with moderate physical activity, and treatment records reflect that he had chest pain at times while walking slowly around his house after his angioplasty in 2017. The Veteran’s diabetes itself has no work impact other than an accomodation to take insulin. He has some decreased strength due at least in part to diabetic neuropathy in the upper extremities. VA examiners noted that his diabetic peripheral neuropathy in the lower extremities restricts him from prolonged standing or walking and walking on uneven surfaces, as well as reduced efficiency in locomotion and instability of gait. He uses a rolling walker for nearly all walking, which was provided in March 2017. VA treating providers and examiners noted that the Veteran’s bilateral lower extremity complaints were out of proportion to the extent of his diabetic peripheral neuropathy, and they were exploring other causes through at least 2018. Nevertheless, the July 2017 VA examiner noted the conflicting evidence and found moderate lower extremity sciatic nerve impairment due to diabetes. Resolving reasonable doubt in the Veteran’s favor, the increases in severity and the noted work impacts would prevent the Veteran from being able to complete tasks generally required for positions consistent with his history as a carpenter and security officer. Both positions would require significant time on his feet. The carpentry position would require significant physical activity, and the security position would as likely as not require moderate physical activity at times. In summary, the Veteran meets the TDIU schedular percentage threshold effective since June 8, 2015, and the effects of his service-connected disabilities have rendered him unable to obtain or maintain substantially gainful employment consistent with his educational and occupational history at least since his claim in 2017. Thus, reasonable doubt is resolved in his favor, and the appeal is granted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.