Citation Nr: 21025850 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-58 817 DATE: April 29, 2021 ORDER The claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, he has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW Entitlement to a TDIU is granted. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to April 1967. This matter comes before the Board on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA). In April 2019, the claim was remanded for additional evidentiary development. During the appellate process, service connection was established for voiding dysfunction and for diabetic neuropathy of the lower extremities. See the August 2020 rating decision. Still, the claim for a TDIU was denied in an August 2020 supplemental statement of the case (SSOC). The appeal continues. Entitlement to a TDIU. A Veteran may be awarded TDIU benefits if he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1115 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). VA may consider the level of education, special training, and previous work experience in making this determination, but may not consider the Veteran’s age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2020); see also Ferraro v. Derwinski, 1 Vet. App. (1991). Medical evidence describing the effect of each disorder on the Veteran’s occupational functioning is crucial to permit the Board to arrive at an assessment of employability. 38 C.F.R. § 4.1 (2020). However, the question of whether the Veteran’s service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board’s determination to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (citing 38 C.F.R. § 4.16 (a) as support for the conclusion that the applicable statutory and regulatory provisions “place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Therefore, the Board will review the medical evidence in the context of the other evidence of record prior to reaching an ultimate conclusion regarding his employability. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) (2020) is that, 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) (2020). 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) (2020). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). The Veteran filed a claim for a TDIU in January 2016. At the time of the Veteran’s TDIU application, he was service-connected for residuals of vagotomy, pyloroplasty and subtotal gastrectomy, to include gastroesophageal reflux disease (GERD) and abdominal scarring, rated as 60 percent disabling; diabetes mellitus (DM), type II, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and erectile dysfunction (ED) associated with DM, rated as noncompensable. A combined disability rating of 70 percent was in effect. Therefore, the Veteran meets the threshold requirements for TDIU, as set forth in 38 C.F.R. § 4.16(a) (2020). The evidence of record reflects that the Veteran last worked full time in May 2013 as security at a hospital. He had been employed there since 1994. In April 2016 correspondence, he explained that he was fired after an incident where he came to the aid of nurses who were being attacked when trying to give an aggressive psychiatric patient his medications. He struck the patient who in the altercation bit his left index finger “to the bone.” After being hit several times, the Veteran struck the patient in the jaw and was able to hold him until help arrived. The next day, however, he was fired for hitting a patient. Thus, he admits, he did not lose his job due to his service-connected disabilities. However, he asserts that since that time, he has been unable to find substantially gainful employment due to the severity of his service-connected disabilities. Medical examinations and employment records have touched on the Veteran’s employability. During a March 2016 examination, it was noted that the Veteran had recurring reflux (almost every night). This problem had improved somewhat over the past two months. He was on continuous medication for his symptoms. The frequency of these episodes was four or more per year. He did not have incapacitating episodes, and the examiner noted that the disorder did not affect his ability to work. Moreover, his abdominal scarring was asymptomatic as noted upon VA examination in April 2016. As for esophageal symptoms, the Veteran reported that his GERD continued to be active upon VA examination in April 2016. He said that he woke several times nightly sick to is stomach. He vomited on occasion, although this had improved with the taking of medication nightly. Symptoms included recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance. Esophagogastroduodenoscopy (EGD) was essentially normal. Although a small hiatal hernia was noted. The examiner opined that the Veteran’s esophageal conditions did not impact on his ability to work. VA audio examination in April 2016 also showed that the Veteran had tinnitus. Subsequently dated VA records in 2017 and 2018 reflect treatment for diabetic neuropathy in the lower extremities. These records also reflected medical problems to include back pain, hypertension, left shoulder problems, and respiratory complaints. When examined by VA in November 2019 for his DM, it was noted that the disability was managed by a restricted diet. There had been no episodes of keto acidosis or hypoglycemia in the past twelve months. It was noted, however, that he did have diabetic peripheral neuropathy in the lower extremities. Also, his ED was attributed to his DM. Due to his DM, the Veteran had to maintain on a routine activity and feeding schedule. His routine at the time of his evaluation was “stable.” He had good blood sugar control but activity level changes and/or food, or fluid intake changes would negatively affect blood sugar control with symptoms of hypoglycemia and shakiness. This could be the result of physically demanding activity. Male reproductive examination in November 2019 noted that the Veteran had ED as a result of his DM. He also had voiding dysfunction with daytime voiding intervals between 2 to 3 hours and nighttime awakening to void 3 to 4 times. This condition was linked to his DM as per a VA addendum report in November 2019. As previously noted, in an August 2020 rating decision, service connection for diabetic voiding dysfunction (polyuria/nocturia) was granted, and a 20 percent rating was assigned, effective November 19, 2019. Service connection for right and left extremity diabetic neuropathy was also granted. Each extremity was rated as 10 percent disabling, effective January 5, 2016. Thus, the Veteran’s combined disability rating was 80 percent, effective January 5, 2016. The Board is the ultimate arbitrator on whether or not the Veteran is entitled to TDIU, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In this case, when considering the Veteran’s employment and educational background, as well as the medical evidence of record, in addition to affording the Veteran the benefit-of-the-doubt, the Board finds that the evidence supports a grant of a TDIU. Specifically, when looking at the effects of the Veteran’s service-connected disabilities in toto and considering the Veteran’s past education and work experience in hospital security, the Board finds the Veteran is not capable of obtaining and maintaining substantially gainful employment consistent with his education and experience. It is noted that the Veteran experienced GERD symptoms on a daily basis, as well as voiding dysfunction (day and night-time). He also had lower extremity diabetic neuropathy. As such, the Board concludes that TDIU is warranted under 38 C.F.R. § 4.16(a) (2020) from the date that his claim was filed in January 2016. All reasonable doubt was resolved in the Veteran’s favor. 38 C.F.R. § 3.102 (2020). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.