Citation Nr: 21029933 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-46 928 DATE: May 17, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted. REMANDED A rating in excess of 20 percent for right lower extremity (RLE) peripheral neuropathy (PN). A rating in excess of 20 percent for left lower extremity (LLE) PN. A rating in excess of 20 percent for diabetes mellitus (DM). A compensable rating for erectile dysfunction (ED). Service connection for a penile deformity. FINDINGS OF FACT 1. The Veteran served on active duty in May 1991 and from January 2005 to July 2006. 2. The Veteran's service-connected disabilities preclude him from securing and maintaining gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In connection with this appeal, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in March 2021. A copy of the transcript is associated with the record. Turning to the relevant laws and regulations, 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 as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is service connected for bilateral lower extremity PN at 20 percent each, left senile cataract at 30 percent, right upper extremity PN at 30 percent, left upper extremity PN at 20 percent, right knee residuals at 30 percent, DM at 30 percent, right knee instability at 10 percent, left knee arthritis at 10 percent, hypertension and ED at 0 percent. His total combined rating is 90 percent. Although the Veteran does not have one disability at 40 percent, the provisions of 38 C.F.R. § 4.16(a) allow for the combination of disabilities affecting a single body system, e.g., the orthopedic system. Thus, the service-connected bilateral lower and upper extremity PN may be combined for the purposes of the analysis, and they combine to an excess of 40 percent. Accordingly, he meets the schedular requirements for TDIU. Turning to the evidence, the Veteran has been unemployed since 2008. He had worked as a truck driver for 16 years and stopped due to problems driving involving his service-connected eye and PN disabilities. He has also asserted that his service-connected knee disabilities and DM contribute greatly to his inability to obtain and maintain gainful employment. As to the medical evidence, the record contains two letters, one from a VA treatment provider and one from a private treatment provider in October 2016. Both physicians opine that the Veteran is unable to maintain working due to his service-connected disabilities. Specifically, Dr. R.B., a VA physician opined that the Veteran could not perform any meaningful part time or full time work due to DM, paralysis of his sciatic nerve, absence of an eye lens, and knee pain. This sentiment was repeated by Dr. B.C. a private physician who opined that the Veteran was unable to work due to DM, severe neuropathy, right knee arthroplasty, and severe hypertension, all of which have been service connected. Dr. B.C. reasoned that DM had gotten progressively worse and required him to take daily insulin injections which would also prohibit him from working. VA examiners also communicated that the Veteran was precluded from working due to these service-connected disabilities. Specifically, the April 2016 VA examiner noted that insulin use was contraindicated in commercial truck driving, which was the Veteran's main occupation. The April 2016 VA examiner also noted that PN impacted the Veteran's ability to work as it interfered with prolonged walking and standing. An October 2018 VA examiner noted that the Veteran's upper extremity PN also limited his ability to work as it affected his ability for fine manipulation and repetitive hand movements. Finally, the October 2018 VA examiner also opined that the Veteran's bilateral knee disabilities likewise precluded him from working because he would be unable to complete work requiring prolonged standing, walking, kneeling, squatting, lifting, or carrying over 20 pounds. As such, the private and VA medical opinions of record are afforded high probative value. Accordingly, the medical evidence supports a finding that the Veteran's service-connected disabilities render him unable to maintain substantially gainful employment. As such, entitlement to a TDIU is warranted and the appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND At the March 2021 hearing, the Veteran testified that his bilateral lower extremity PN, DM, and ED had worsened since this last VA examinations in April 2016. Thus, updated VA examinations must be obtained based on the evidence of record and the Veteran's testimony. With regard to the Veteran's claim for a compensable rating for ED and service connection for a penile deformity, these two issues are inextricably intertwined and largely, one in the same. Specifically, a higher rating would not be warranted without evidence of a penile deformity. Nonetheless, as he filed for both claims and both were certified to the Board, both claims must be addressed. Notably, at the April 2016 VA examination, the Veteran's penis was not examined per his request. He has since testified that he has a penile deformity, and an October 2016 private treatment letter referred to penile deformity. Thus, a new examination is needed. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent, VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for examinations to assess bilateral lower extremity PN, DM, and ED. A copy of the claims file should be made available to the examiner(s). Any indicated studies should be performed. As to ED, the examiner is asked specifically to opine as to whether the Veteran has a penile deformity. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.