Citation Nr: 21028794 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 11-18 050 DATE: May 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT During the entire appeal period, the Veteran's service-connected disabilities as likely as not has precluded him from securing or following a substantially gainful occupation consistent with his educational background and work history. CONCLUSION OF LAW Since August 11, 2008, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to March 1969. In January 2016, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. This matter is before the Board of Veterans' Appeals (Board) following Board Remands in June 2016, October 2017, and August 2020. The Veteran contends that he is employable due to his service-connected diabetes mellitus. 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. 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." 38 C.F.R. §§ 3.340 (a)(1), 4.15. A Veteran may still be eligible for TDIU even if employed if the employment is found to be marginal. Marginal employment is deemed to exist when a Veteran's earned annual income does not exceed the amount set by the Bureau of the Census as the poverty threshold for one person. 38 C.F.R. § 3.16 (a). Marginal employment may be found, on a factual basis, when earned income exceeds the poverty threshold, in a protected environment such as a family business or sheltered workshop. Id. A total disability rating for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The law provides that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity. See 38 C.F.R. § 4.10. Moreover, a veteran also does not have to prove that he or she is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340. Service connection has been established for voiding dysfunction rated as 40 percent disabling, left upper extremity peripheral neuropathy rated as 30 percent disabling, diabetes mellitus rated as 20 percent disabling, right upper extremity peripheral neuropathy rated as 20 percent disabling, peripheral neuropathy (sciatic nerve) of the lower extremities each rated as 20 percent disabling, peripheral neuropathy (femoral nerve) of the lower extremities each rated as 20 percent disabling, dermatitis rated as 10 percent disabling, acne rated as 10 percent disabling, and erectile dysfunction rated as 0 percent disabling. Thus, the Veteran meets the schedular threshold percentage criteria for consideration of a total rating based on individual unemployability due to service-connected disabilities. See 38 C.F.R. § 4.16 (a). In addition, the Veteran's diabetes mellitus and complications are considered one disability; as such, the Veteran's diabetes mellitus and complications had a combined schedular rating of 70 percent on August 11, 2008, 90 percent on March 15, 2019, and 100 percent on November 2, 2020. Although the Veteran's combined rating is 100 percent effective November 2, 2020, the Board acknowledges that the combined 100 percent rating does not render moot the question of entitlement to TDIU from that date. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011); Akles v. Derwinski, 1 Vet. App. 118 (1991). Instead, the Board will consider whether any single service-connected disability can support the award of TDIU from August 11, 2008. The question in this case is whether the Veteran is unemployable due to service-connected diabetes mellitus and its complications. On his VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported past work as a diesel mechanic and a bus driver. Historically, the Board notes that Social Security Administration (SSA) records dated in 1996 indicate that the Veteran had a high school diploma and had completed an auto/diesel mechanic course. The SSA records indicated that at the time he became disabled, he was working as a diesel mechanic. According to the testimony of a vocational expert, the Veteran's diabetes itself has been controlled with medication, but because the Veteran regularly suffered from dizziness, shakiness, and weakness caused by continued hypoglycemic attacks, performance of work on a sustained basis would be interfered with more than would be vocationally tolerable. The expert testified that even if the hypoglycemic attacks could be controlled, the Veteran would be able to perform work activities at a sedentary level of residual functional capacity. VA treatment records indicate that in June 2008, the Veteran was seen in the emergency department, and in July 2008, he was hospitalized for syncopal episodes and presyncopal episodes. Discharge summary in June 2008 noted that he possibly had syncope related to hypoglycemia or related to autonomic dysfunction secondary to diabetes. Discharge summary in July 2008 noted that due to full negative workup and no etiology of the Veteran's syncope, he was released from the hospital with a cardiac monitor. The Veteran's pre-syncope was noted to likely be an adverse drug effect from tuberculosis medications. VA treatment records indicated that a fall risk assessment in December 2008 noted dizziness and joint difficulties. A March 2009 nerve conduction studies were negative for evidence of neuropathy in the lower extremities. At the March 2009 VA examination, the Veteran reported polyuria (frequent passage of large volumes of urine), polydipsia (abnormally great thirst), as well as numbness and tingling in bilateral hands and feet, worse at night. The Veteran denied episodes of hypoglycemia. On physical examination, the Veteran's muscle strength was normal; sensory function was decreased in the Veteran's hands, his right dorsolateral legs, and dorsum of his right foot. The examiner noted that the Veteran retired in 1990 due to diabetes, back condition, dizziness, and memory loss. VA treatment records indicate that in April 2009, the Veteran was seen for nosebleeds after he fell when he was preparing to cut grass, was going underneath the house to get the lawn mower, became dizzy, and fell. A fall risk assessment in July 2009 noted dizziness, unsteady gait, joint difficulties, tires easily, weakness, and sight impairment. In May 2010, the Veteran reported that he continued to have dizziness; specifically, he noted that he feels dizzy and the room and things spin when he gets up in the morning. During a fall risk screening in September 2016, the Veteran reported that he had fallen in the prior year, that he felt unsteady when standing and walking, and that he worried about falling. At the September 2016 VA examination, the Veteran reported that he had no episodes of hypoglycemic reactions requiring hospitalization over the prior year; the examiner noted that the Veteran's diabetes mellitus and complications did not impact his ability to work. VA treatment records indicate that from January 2017 to February 2020, the Veteran consistently denied numbness, tingling, and heat or cold intolerance. However, during hospitalizations in February and July 2017 for impairments other than diabetes mellitus, he was noted to have a weak gait due to physical alterations such as CVA, amputation injury, neuropathy, etc.). In February 2017, the Veteran denied dizziness. On July 7, 2017, he complained of "feeling bad," polyuria, polydipsia, fatigue, and no energy; diagnostic impression was hyperglycemia; he was started on long acting insulin. In January and April 2018, the Veteran reported dizziness in the early morning, memory impairment, and blurred vision. A falls risk assessment in August 2018 noted dizziness/balance problems, unsteady gait, joint difficulties, tires easily, and weakness. At the March 2019 VA examination, the Veteran reported that he had no episodes of hypoglycemic reactions requiring hospitalization over the prior year; the examiner noted that the Veteran's diabetes mellitus and complications did not impact his ability to work. The Veteran's voiding dysfunction was noted to cause daytime voiding interval less than one hour and nighttime awakening to void three to four times; the examiner noted that the Veteran's voiding dysfunction and erectile dysfunction did not impact his ability to work. The Veteran's peripheral neuropathy was noted to cause constant pain, numbness, and tingling in bilateral hand and feet; the examiner noted that the Veteran's peripheral neuropathy caused difficulty working. VA treatment records indicate that in November 2019, the Veteran reported that neuropathy made it difficult to button his shirt. The Board notes that the Veteran had a stroke in March 2020; he presented to the emergency room with left hemibody numbness bilateral lower extremity weakness. In November 2020 the Veteran reported that the left side of his body was still numb and his left hand grip was still weak. VA treatment records indicate that in June 2020, the was seen in the emergency department after a fall due to syncopal episode. Assessment was near syncope or syncopal episode due to orthostatic hypotension. At the November 2020 VA examination at which time the examiner noted that voiding dysfunction may disrupt workflow and lead to loss of productivity; that the Veteran's fluctuating glucose levels due to diabetes mellitus caused fatigue, malaise, blurred vision, and dizziness which interferes with the ability to perform strenuous physical activities, drive for extended periods of time, work on heights, and operate machinery; that his occasional hypoglycemia lead to impaired ability to perform any work, drive, work on heights, and operate machinery; and that his diabetic peripheral neuropathy caused difficulty ambulating, imbalance, difficulty getting up, twisting jars, grasping and holding small objects, lifting heavy objects, using tools, writing, getting dressed, climbing ladders, walking on uneven surfaces. The examiner also noted that the Veteran had to avoid exposure to vibration and extreme temperatures. The Board finds that the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities prevented him from working during the entire appeal period. As noted above, the November 2020 VA examiner noted that fatigue, malaise, blurred vision, and dizziness interfered with the ability to perform strenuous physical activities, drive for extended periods of time, work on heights, and operate machinery. The 1996 SSA records also found that dizziness along with shakiness and weakness caused by continued hypoglycemic attacks. The record indicates that the Veteran was seen at the emergency room in June 2008 for syncope, hospitalized in July 2008 for pre-syncope, and seen at the emergency room in April 2009 after he became dizzy and fell. In May 2010, the Veteran reported that he continued to have dizziness; in January and April 2018, the Veteran reported early morning dizziness; and fall risk assessments in December 2008, July 2009, and August 2018 all noted dizziness. Although the July 2008 discharge summary noted that the pre-syncopic was likely an adverse drug effect, the June 2008 discharge summary noted it was possibly related to hypoglycemia or autonomic dysfunction. In addition, the November 2020 VA examiner indicated that the Veteran's dizziness was due to fluctuating glucose levels. Importantly, the SSA vocational expert noted that even if the hypoglycemic attacks could be controlled, the Veteran would only be able to perform work activities at a sedentary level of residual functional capacity. Further, the November 2020 VA examiner noted that the Veteran's peripheral neuropathy caused difficulty ambulating, imbalance, difficulty getting up, twisting jars, grasping and holding small objects, lifting heavy objects, using tools, writing, getting dressed, climbing ladders, walking on uneven surfaces. Although VA treatment records from January 2017 to February 2020 indicate that the Veteran denied numbness and tingling, the Veteran complained of numbness and tingling in his hands and feet as early as the March 2009 VA examination; and in fact, sensory function was noted to be decreased in the Veteran's hands and right leg and foot In November 2019, the Veteran reported that neuropathy made it difficult to button his shirt. As noted above, SSA records dated in 1996 indicate that the Veteran had a high school diploma, had completed an auto/diesel mechanic course, and was working as a diesel mechanic at the time he became disabled. The Board finds that the Veteran's diabetic neuropathy would have a significant effect on his occupation as a diesel mechanic; however, such physical impairment of his hands and feet coupled with the dizziness, would make gainful employment as a diesel mechanic impossible. The only other occupation the Veteran appears to have had for any period of time was as a bus driver; the dizziness alone would preclude any type of commercial motor vehicle operation. Accordingly, a TDIU is warranted from August 11, 2008. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Olson, 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.