Citation Nr: 21028812 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-25 605 DATE: May 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities rendered him unable to engage and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Marine Corps from January 1966 to December 1968. Unfortunately, the Veteran died in November 2020. The appellant is his surviving spouse. Initially, the Board expresses its condolences to the appellant for the loss of her husband and recognizes the valuable service he provided to this country in the United States Marine Corps. In September 2020, the Board remanded the Veteran's TDIU claim for additional development. The case has since returned to the Board for appellate review. 1. Entitlement to a TDIU is granted. The Veteran contended that his service-connected disabilities, particularly his vascular disease and diabetes, rendered him unable to maintain substantially gainful employment. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. 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. The Veteran was in receipt of a 60 percent rating for peripheral vascular disease of the right lower extremity; a 60 percent rating for coronary artery disease (CAD) with valvular heart disease s/p myocardial infarction; a 20 percent rating for peripheral vascular disease of the left lower extremity associated with type II diabetes mellitus with erectile dysfunction; a 20 percent rating for voiding dysfunction associated with type II diabetes mellitus with erectile dysfunction; a 20 percent rating for type II diabetes mellitus with erectile dysfunction; and a noncompensable rating for erectile dysfunction associated with type II diabetes mellitus with erectile dysfunction, with a combined rating of 80 percent from June 13, 2012, and 90 percent from September 28, 2017. In this case, because the Veteran had at least one disability rated at least 60 percent disabling, peripheral vascular disease and CAD, the Veteran met the schedular requirements for TDIU throughout the appeal period. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims Court defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty level threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned income." In reaching such a determination, 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). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes can only consider service-connected disabilities in evaluating the TDIU claim. 38 C.F.R. § 4.16. Turning to the relevant evidence of record, with respect to work history, the Veteran retired from the Sheriff's department. See January 2013 private medical note. In addition, according to the appellant, the Veteran previously worked as a landscaper for a lawn service company in 2013. See October 2019 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran left his job due to his service-connected disabilities. Id. The Veteran had 2 years of college. With respect to Social Security Administration (SSA), the Board notes that the Veteran received Supplemental Medical Insurance (SMI). However, his SSA records do not show that he was in receipt of SSA disability benefits for any of his service-connected disabilities. In the October 2017 VA examination, with respect to the Veteran's CAD, the Veteran's wife reported that the Veteran had a stroke in 2016, and during the workup, he was noted to have heart problems, including a heart attack in the recent past. The Veteran did not provide any comments as he had vascular dementia. The examiner concluded that the Veteran's CAD did not impact his ability to work. In September 2019, a provider at the Tennessee State Veterans' Home Board noted that the Veteran had significant medical issues, particularly significant cognitive dysfunction, which prevented him from taking care of his personal affairs. The provider noted that the Veteran required daily and complete assistance with his activities of daily living. However, the provider did not specifically discuss the effects on the Veteran's service-connected disabilities on his ability to perform activities of daily living. In March 2021, a VA examiner provided opinions on whether the Veteran's service-connected disabilities affected his ability to work. With respect to the Veteran's service-connected peripheral vascular disease of the bilateral lower extremities; the examiner concluded that the Veteran was limited to light work as demonstrated by claudication occurring at less than 25 yards. As to the Veteran's voiding dysfunction associated with his diabetes, the examiner concluded that the Veteran was limited to moderate work due to the need to take bathroom breaks every 2-3 hours during the day as well as from fatigue from waking up 3-4 times per night. The examiner concluded that the Veteran did not experience any work limitations due to his CAD or erectile dysfunction. With respect to his CAD, the examiner reasoned that, in the October 2017 VA examination, the Veteran did not demonstrate any symptoms, functional limitations, or METs limitations due to his CAD. Given the probative evidence, the Board finds that the Veteran's service-connected disabilities, particularly his service-connected peripheral vascular disease and diabetes, inhibited the Veteran's ability to maintain substantially gainful employment in a physical work environment. To this end, the Board finds the March 2021 VA opinion most probative. In March 2021, the VA examiner concluded that the Veteran was limited to light work due to his peripheral vascular disease. The examiner also noted that the Veteran was limited to moderate work due to his diabetes. As such, given the severity of his peripheral vascular disease and diabetes, the Board does not believe that the Veteran would have been able to routinely secure work in a physical environment. As to whether the Veteran would have been able to secure gainful employment in a sedentary work environment, the Board acknowledges that the March 2021 VA opinion did not specifically rule out the Veteran's ability to perform work in a sedentary environment. However, given the Veteran's work history, which was predominantly in manual labor, specifically in the Sherriff's department and landscaping, the Board does not believe that he would have been able to routinely secure work in a sedentary environment. Given the evidence, the Board finds that the Veteran's overall disability picture impairs his ability to obtain and follow substantially gainful employment. (CONTINUED ON NEXT PAGE) Accordingly, the Board finds that the preponderance of the evidence supports the claim for entitlement to a TDIU due to his service-connected disabilities. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, Associate 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.