Citation Nr: 21027985 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 20-15 579 DATE: May 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The weight of the evidence shows that the Veteran's service-connected disabilities together render him unable to obtain and/or secure substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran on active duty in the Marine Corps from October 1962 to October 1966, and in the Army from August 1985 to October 1989. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Furthermore, the Board has advanced the appeal on the docket pursuant to 38 C.F.R. § 20.902. TDIU Total disability will be considered to exist 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. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation due to their service-connected disabilities. 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). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). 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; see also Ferraro v. Derwinski, 1 Vet. App. (1991). In 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) held that substantially gainful employment, in the TDIU context, contains economic and noneconomic components; 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 as the poverty threshold for one person, while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The CAVC also provided guidance as to the meaning of a veteran's ability to secure and follow such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. 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. 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"). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) 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). 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). Entitlement to a TDIU is granted. The Board notes that the Veteran is currently service connected for diabetes mellitus at a 40 percent rating. Additionally, he is also service connected for the following disabilities: coronary artery disease at 30 percent, peripheral neuropathy of the left lower extremity at 20 percent, peripheral vascular disease of the right lower extremity at 20 percent, peripheral neuropathy of the left upper extremity at 20 percent, peripheral neuropathy of the right upper extremity at 20 percent, impairment of supination/pronation (residual right ulnar fracture with degenerative arthritis) at 20 percent, peripheral neuropathy of the right lower extremity at 10 percent, limitation of extension (residuals of right ulnar fracture with degenerative arthritis, claimed as fracture right elbow) at 10 percent, bilateral hearing loss at 0 percent, hypertension at 0 percent, aortic aneurysm at 0 percent, and peripheral vascular disease of the left lower extremity at 0 percent. The Veteran's combined evaluation for his service-connected disabilities is 90 percent. Given his 40 percent rating for diabetes mellitus and his 90 percent combined disability rating, he meets the schedular criteria for TDIU throughout the period on appeal. See 38 C.F.R. §§ 4.16 (a), 4.25, 4.26. convalescence rating per 38 C.F.R. § 4.30 for his service-connected impairment of supination/pronation (residual right ulnar fracture with degenerative arthritis), along with special monthly compensation pursuant to 38 U.S.C. § 1114 (s) from October 10, 2016 to November 30, 2016. This is considered a full grant of benefits, and therefore, excluded from the period for which TDIU is granted. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). In his September 2016 TDIU application, the Veteran contends that his service-connected diabetes mellitus, neuropathy, right elbow, and coronary artery disease (CAD) has rendered him unable to secure any substantially gainful occupation. The Veteran's DD-214 reveal that the Veteran's military occupational specialty was an aircraft mechanic in the Marine Corps and an aviation/automobile maintenance technician in the Army. Additionally, his TDIU application reveal that the Veteran was primarily employed fulltime at the Department of Defense as a logistician from 1970 to 1996. Following that employment, the Veteran was a self-employed carpenter from 1996 to 2005. Although, the Veteran's TDIU application does not specify any schooling or training, it is noted in the record that the Veteran completed an associate degree at LaSalle University majoring in Business Management in 1970. See January 2020 Vocational Evaluation by C.V. Various medical examinations have touched on the Veteran's employability and work background. A July 2012 Peripheral Nerves Conditions DBQ submitted by the Veteran describes the Veteran's peripheral neuropathy to occur with burning pain and cramps in the lower extremities. Additionally, this examination noted the Veteran's pain in his lower left extremity and numbness in the left lower extremities to be severe. Further, the examination noted incomplete paralysis of the ulnar nerve in the upper extremity. For assistive devices, it is documented that the Veteran uses a cane. The July 2012 medical examiner opined that the Veteran's peripheral neuropathy impacts his ability to work. Specifically, it was noted that at one hour, the Veteran loses significant grip strength. A May 2014 Diabetes Mellitus DBQ submitted by the Veteran noted that the Veteran's peripheral neuropathy was a complication due to his diabetes mellitus. Additionally, it was noted that the Veteran's hypertension, cardiac condition, and erectile dysfunction was at least as likely as not due to his diabetes mellitus. Despite his diabetes mellitus complicating his other medical conditions such as his peripheral neuropathy, the May 2014 examiner opined that the Veteran's diabetes mellitus does not impact his ability to work. An August 2014, private medical treatment record addressing peripheral neuropathy from Dr. S.S. noted that the Veteran's left grip weakness was more noticeable. Additionally, the Veteran's painful sensory polyneuropathy was noted. A correspondence from Dr. E.L. dated February 2015 notes that she has been treating the Veteran since October 2013 for his diabetes mellitus. She states that the Veteran's diabetes mellitus is complicated by moderate peripheral neuropathy and cataract formation. Further, the doctor states that the Veteran is treated with oral medication as well as insulin subcutaneously. She states that the Veteran's disease would be considered to be moderately severe with moderate to poor control. A June 2014, private medical treatment record addressing peripheral neuropathy from Dr. S.S. noted that the Veteran reports of severe burning pain involving his feet. Additionally, it was reported that the pain worsens when he stands on his feet for a period, perhaps for about 30 minutes. For assessment, the doctor noted that his history and examination suggest painful diabetic polyneuropathy affecting the lower extremities. In June 2016, the Veteran was afforded a VA examination for his diabetes mellitus, CAD, right elbow, and neuropathy. For the Veteran's diabetes mellitus examination, the examiner noted that there was no functional impact. For his CAD examination, the examiner noted that the Veteran suffered from chest pain due to his CAD; however, pain has decreased since the Veteran has stents placed. Further, in regard to his CAD, the examiner noted that the Veteran had dyspnea and his exercise tolerance on flat ground dis about 3 to 4 blocks. Despite documenting this, the examiner opined that that there was no functional impact with regards to the Veteran's CAD. For the Veteran's elbow examination, it was noted that the Veteran was diagnosed with degenerative arthritis and right ulnar fracture of his right elbow. Regarding his right elbow, the examiner noted that the Veteran reported significant stiffness of elbow joint and has difficulty moving his 4th and 5th digit of his fingers on occasion when his elbow is in certain positions. However, the examiner opined that the Veteran's right elbow conditions has no functional impact. For the Veteran's peripheral neuropathy examination, the Veteran reported that he has decreased sensation in his bilateral fingers and has severe intermittent pain, numbness, and tingling in his lower extremities. The examiner further noted that the Veteran's symptoms includes "constant pain" that "may be excruciating at time." Additionally, numbness and intermittent pain in the Veteran's right and left lover extremity was marked as severe. Further, the examiner noted that the Veteran has upper extremity and lower diabetic peripheral neuropathy. Despite such documentation, the examiner opined that the Veteran's diabetic peripheral neuropathy does not impact his ability to work. In September 2016, an addendum was provided for the June 2016 VA examinations for diabetes mellitus, CAD, right elbow, and neuropathy. For the requested opinion, the examiner stated: "The Veteran's METs level based solely on his cardiac condition is in the 5-7 range. The Veteran's CAD does not cause any limitations of function in an occupational environment. The Veteran's diabetes mellitus does not cause any limitation of function in an occupational environment. The Veteran's 1962 ulnar fracture in degenerative arthritis of the right elbow diagnosed in 2016 do not cause any limitations of function in an occupational environment. The Veteran's diabetic neuropathy does not cause any limitations of function in an occupational environment. While gabapentin can sometimes cause somnolence and fatigue the Veteran does not currently complain of any of these issues." A September 2016 private medical treatment record addressing the Veteran's right elbow condition from Dr. R.M. noted that the Veteran has ongoing right lateral elbow pain with limitation of motion as well as pain on rotation. Further, Dr. R.M. states that indications from x-rays show degenerative arthritis and right elbow pain. Subsequently, Dr. R.M. performed a right elbow arthrotomy, capsular release and excision of osteophytes and spurs in October 2016. An October 2016, private medical treatment record from Life Fitness reports a standardized tool used to document the Veteran's limitation of his upper extremity. He marked that he was unable to open a tight jar, and that recreational activities provided him with moderate difficulty. He also reported that he was experiencing mild arm, shoulder, or hand pain. A November 2016 report from Life Fitness notes that the Veteran is in a lot of pain. A November 2018 private medical treatment record from Dr. S.S. documents the Veteran's reports of left upper extremity numbness and tingling and bilateral calf pain. Under assessments, the doctor noted that the Veteran appears to have more weakness of the right grip and left finger. A Vocational Evaluation was prepared by rehabilitation specialist C.V., RN, MS, CRC, QRP, in January 2020. The family/social information section of the report notes that the Veteran can only drive short distances and can complete certain tasks but only with frequent break, however his wife performs the majority of inside chores. Although he can complete independent activities of everyday living, he depends on his wife to help him with bathing. Additionally, his conditions cause him to have fatigue, citing that if he carries two bags of groceries from the car up five steps into the house, he must take a break. It was reported that the Veteran has intermittent chest pain, which restricts his activity to a very sedentary level. Additionally, the Veteran reported that he has limited use of his hands, less than 1 hour a day, due to his peripheral neuropathy. His fingering, grasping, reaching, and handling are all very limited. The peripheral neuropathy in his bilateral lower extremities results in issues with balance, limited walking, standing, carrying, and lifting. Additionally, he has the same burning and numbness symptoms in both upper and lower extremities. He uses a cane to ambulate and can walk about 10 to 15 minutes before needing a break. The January 2020 rehabilitation specialist opined that the combination of his service-connected disabilities would eliminate any/all employment. The rationale provided was as such: "the use of a cane would eliminate light, medium, and heavy occupations as only one hand would be available to complete the job tasks when the average use of two hands are required per the Dictionary of Occupational Titles. The 29 March 2011 C&P Exam Note indicated [J.S.] could walk approximately 30 feet, which corresponds with his indication walking of fifty feet. This in combination with the peripheral edema, would clearly eliminate light, medium, and heavy employment. His need to elevate his lower extremitiesto waist level because the peripheral edema would eliminate even sedentary employment, as he would be positioned too far from the workstation to complete job functions. His records from the DVA clearly document his decreased manual dexterity, as well as peripheral vascular edema...The combination of these physical vocational impairments would eliminate any/all employment." In considering the evidence of record, the Board finds that TDIU is warranted in this case. The Board notes that little probative value is given to the June 2016 opinion as well as the September 2016 addendum regarding the functional impact of the Veteran's diabetes mellitus, CAD, right elbow, and neuropathy. Functional impact is impact in ability to perform any type of occupational task, such as standing, walking, lifting, sitting. Although the examiner noted that the Veteran suffered from chest pain, low physical tolerance, stiffness, limited range of motion, constant pain and numbness of the lower extremities, and limited use of his fingers, the examiner opined that there was no functional impact of the Veteran's service-connected disability. The Board finds the opinion provided by the examiner to be inadequate because the examiner did not provide an adequate rationale in reaching his conclusion. Moreover, the examiner clearly noted symptoms that directly affect the Veteran's standing, walking, and lifting, which conflict with his opinion. The Board finds the January 2020 Vocational Evaluation most probative. This evaluation provides the most holistic view of the impact of the Veteran's service-connected disabilities and the limit they impose on the Veteran's everyday life, including his employability. The evaluation adequately documents the Veteran's medical history, the social aspects of his everyday life, and consideration of his symptoms as applied to the occupational titles. Further, the rehabilitation specialist's opinion is supported with a complete and thorough rationale. 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. When looking at the effects of the Veteran's service-connected disabilities in the aggregate, and considering the Veteran's past education and work experience, the Board finds the Veteran is not capable of obtaining and maintaining substantially gainful employment consistent with his education and experience. The Board is the ultimate arbitrator on whether the Veteran is entitled to TDIU, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As such, the Board concludes that TDIU is warranted under 38 C.F.R. § 4.16 (a). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Law Clerk for the Board N. Jamordee 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.