Citation Nr: 21030072 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 11-03 963 DATE: May 17, 2021 ORDER Prior to June 30, 2016, entitlement to a total disability rating based on individual unemployability (TDIU) based solely on the Veteran's service-connected type II diabetes mellitus (DMII) is denied. FINDING OF FACT Prior to June 30, 2016, the Veteran's service-connected DMII did not preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW Prior to June 30, 2016, the criteria for entitlement to a TDIU based solely on the Veteran's service-connected DMII were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from May 1966 to June 1969, to include service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded, among other decorations, the Vietnam Service and Campaign Medals. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the Board previously remanded the issue for additional development in January 2014, July 2017, and February 2021. In its February 2021 decision, the Board denied an increased rating for DMII, granted a rating of 100 percent for posttraumatic stress disorder (PTSD) for the entire appeal period, granted special monthly compensation (SMC) from June 30, 2016, and dismissed entitlement to TDIU as moot from June 30, 2016. The Board also remanded the issue of entitlement to an extraschedular TDIU based solely on the Veteran's service-connected DMII for the appeal period prior to June 30, 2016. As the directives from the Board's previous remands have been completed, the Board finds substantial compliance such that the case may move forward. Prior to June 30, 2016, entitlement to a TDIU based solely on the Veteran's service-connected DMII. 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 (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 or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16 (a), "Marginal employment shall not be considered substantially gainful employment." Additionally, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist on a fact-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated at 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities, or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of the VA, however, 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(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In May 2019, the United States Court of Appeals for Veterans Claims (Court) held that when addressing whether a Veteran is entitled to an extraschedular TDIU rating, the Board must give attention to 1) the Veteran's history, education, skill, and training; 2) whether the Veteran has the physical ability to perform the types of activities required by the occupation at issue; and 3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie 31 Vet. App. 58, 73 (2019). The Veteran is service-connected for the following disabilities prior to June 30, 2016: (1) posttraumatic stress disorder (PTSD) rated at 100 percent from March 11, 2009; (2) type II diabetes mellitus (DMII) rated at 20 percent from March 11, 2009; (3) mild nonproliferative diabetic retinopathy associated with DMII rated at 0 percent from May 19, 2011; (4) tinnitus rated at 10 percent from May 19, 2011; and (5) bilateral hearing loss rated at 0 percent from May 19, 2011. The Veteran's combined evaluation for compensation is 100 percent. A TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than the 100 percent scheduler rating, and the grant of a 100 percent schedular rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. The Board acknowledges, however, that assigning a total schedular rating does not in every instance render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). More specifically, the issue of TDIU is not moot when it could be granted for a disability other than the disability for which a 100 percent rating is in effect because there would be no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. At present, the Veteran's disability for which the 100 percent disability rating is in effect is his PTSD. The Veteran has other service-connected disabilities, such as DMII, mild nonproliferative diabetic retinopathy, tinnitus, and bilateral hearing loss. Specifically, other than his PTSD, the Veteran has argued that his service-connected DMII prevented him from maintaining substantially gainful employment. Therefore, the Board will consider whether a TDIU is warranted solely regarding his DMII. In its February 2021 decision, the Board remanded the issue of TDIU prior to June 30, 2016 for extraschedular schedular consideration by the Director of Compensation Service because the Veteran did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). In March 2018, the Director of Compensation Service issued an advisory opinion regarding the issue of extraschedular consideration for entitlement to a TDIU. The Director of Compensation Service stated that based on a review of medical and lay evidence presented in light of the Veteran's education, training, and work history, and careful consideration given to all facets, the overall evidence failed to show support to the contention that diabetes prevented gainful employment prior to June 30, 2016. Most recently, in January 2016, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (application for a TDIU). The Veteran reported that he became too disabled to work in June 1996. Subsequently, he had jobs in delivery, as a driver, in construction, and as a utility line locator. He worked as a utility line locator from June 7, 2009 to August 14, 2009. During that time, the Veteran worked 30 to 40 hours per week, and his highest gross earnings per month were $1200. The highest level of education that the Veteran completed was the second year of high school. From February 2008 to March 2008, the Veteran attended truck driving school. However, he was unable to get a driving job due to all of the medications he took and because of previous DUI's on his driving record. In March 2010, the Veteran's former employer, for whom he worked as a utility line locator, submitted a letter regarding the Veteran's employment. The manager stated that the Veteran was an employee with the company for approximately 3 months. During that time frame, the Veteran had problems with retaining the training required by all employees. The Veteran was unable to grasp the large amount of information, and it was mutually decided that the Veteran part ways with the company. In June 2009, the Veteran was afforded a VA examination for his DMII. The Veteran reported that he had hypoglycemic symptoms once a week but denied any ketoacidosis. He had not been hospitalized or had emergency room visits. He was on a low-sodium ADA diet. The Veteran did not have to restrict his activities to prevent hypoglycemia. He was currently taking metformin 1000 mg bid. He had headaches and dizziness when his blood pressure was high. He also reported lethargy and some weakness. Upon physical examination, the VA examiner noted that the Veteran was well-developed, well-nourished, and ambulated unassisted with normal gait. In a November 2010 statement, the Veteran reported that he had severe diabetic retinopathy in his feet, which caused severe pain; he could not stand on his feet for long periods. The pain limited his ability to do the simplest tasks around the house, such as cooking, cleaning, and yardwork. The Veteran claimed that he was unable to hold down a job due to his DMII. In a February 2011 statement attached to his VA Form 9, the Veteran stated that his DMII caused his diet and activity to be restricted. He was unable to enjoy the foods he liked to eat because when he did, he would be dizzy and lightheaded. His activity was restricted; he was unable to exert himself without becoming faint. He had neuropathy in his feet and found it difficult to walk. In June 2011, the Veteran had another VA examination for his DMII. The Veteran reported being unemployed. He claimed that he was able to perform all activities of daily living independently. He denied any restrictions of activities due to his DMII. The Veteran also reported that he drove his personal vehicle to medical appointments at the VA as desired. The Veteran further denied any current symptoms of DMII. During his May 2011 DRO hearing, the Veteran testified that he was not able to engage in any strenuous activity, stating that he was weak all the time. When his blood sugar got low, he became dizzy. In February 2015, the Veteran was afforded a VA examination for his DMII. The Veteran was not prescribed bedrest by a doctor or incapacitated due to his DMII in the last 12 months. He did not have any impediments to his activities of daily living. The Veteran took 100 mg of metformin twice daily for his diabetes. The VA examiner noted that Veteran's DMII was stable and well-controlled with oral medications; the Veteran did not have any functional limitations. The Veteran visited his diabetic care provider less than 2 times per month. In September 2020, a TDIU opinion for the Veteran's DMII was obtained. The examiner opined that it was at least as likely as not that the Veteran was able to perform light work in a normal 8 hour day. Light work was defined as exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. A job was rated as light work: (1) when it required walking or standing to a significant degree; or (2) when it required sitting most of the time but entailed pushing and/or pulling of arm or leg controls; and/or (3) when the job required working at a production rate pace entailing the constant pushing and/or pulling of material even though the weight of that material was negligible. Based on a thorough review of the evidence of record, including the Veteran's lay statements, and with consideration of the Veteran's work history, education, skill, training, and mental and physical ability, the Board finds that the Veteran is not entitled to a TDIU based solely on his service-connected DMII for the appeal period prior to June 30, 2016. The Veteran was employed as a utility line locator from June 2009 to August 2009 and worked 30 to 40 hours per week. The Veteran's highest gross earnings per month were $1200. The Board considers this to be marginal employment because the Veteran's earned annual income during that year did not exceed the poverty threshold amount for one person established by the U.S. Department of Commerce, Census Bureau. However, although this is marginal employment, the Veteran did not quit his job because of functional limitations due to his DMII. According to his employer, the decision for the Veteran to separate from his job was a mutual decision; the Veteran had problems with retaining the training required by all employees and was unable to grasp a large amount of the information. Additionally, the Veteran claimed that his DMII caused these symptoms: lightheadedness, dizziness, an inability to engage in strenuous activities, weakness, and lethargy. The Veteran also complained that he had severe pain in his feet due to diabetic retinopathy, which limited his ability to do the simplest tasks around the house, such as cooking, cleaning, and yardwork. Despite this, the Veteran's DMII did not severely limit his physical functioning and mental ability to the point that he would be prevented from working. On his June 2009 VA examination, the Veteran reported that he did not have to restrict his activities due to hypoglycemia. The June 2009 VA examiner reported that the Veteran was well-developed, well-nourished, and ambulated unassisted with normal gait. On his June 2011 VA examination, the Veteran claimed that he was able to perform all activities of daily living independently. He denied any restrictions of activities due to his DMII. The Veteran also stated that he drove himself to VA medical appointments. On his February 2015 VA examination, the VA examiner concluded that the Veteran's DMII did not impact his ability to work. The Veteran observed a diabetic diet and stayed active. The Veteran walked for exercise. Moreover, a September 2020 VA medical opinion concluded that the Veteran was capable of light work or work that did not involve strenuous physical activity. The Veteran could engage in work that required exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. Overall, the overwhelming evidence demonstrates that the Veteran's service-connected DMII would not prevent him from doing non-strenuous physical work that is consistent with his work history, skills, education, and training. There is no evidence that his DMII would impact his mental ability to engage in work activity. Therefore, for the appeal period prior to June 30, 2016, entitlement to a TDIU based solely on the Veteran's service-connected DMII is denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.