Citation Nr: 21030374 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-41 293 DATE: May 18, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 10 percent for peripheral neuropathy, femoral nerve, right lower extremity to include as secondary to service-connected diabetes mellitus is remanded. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, femoral nerve, left lower extremity to include as secondary to service-connected diabetes mellitus is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another person. FINDING OF FACT The Veteran is unable to obtain or maintain substantially gainful employment as a result the combined effects of his service-connected disabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from September 1968 to September 1971. These matters come before the Board of Veterans' Appeals (Board) from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case was most recently before the Board in July 2019. At that time, the Board denied the Veteran's increased rating claims. The Veteran subsequently appealed this decision to the Court. In August 2020, the Court granted the parties Joint Motion for Remand (JMR), vacated the Board's July 2019 decision, and remanded the increased rating claims to the Board for further development and consideration. The matters returned to the Board in September 2020. In September 2020, the Veteran's attorney requested the full 90 day period following the docketing of the remanded appeal at the Board to submit additional evidence and argument. In November 2020, the Veteran's attorney requested an additional 60 extension of time to submit evidence and argument. The Board granted this request for an extension of time in a January 2021 letter and extended the period of time to submit additional and argument to March 2021. The Board notes that additional evidence and argument was received in April 2021 along with a signed waiver of agency of original jurisdiction (AOJ) consideration of evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1305. The Board notes that although a claim for TDIU was denied in a December 2013 and November 2016 rating decisions and not specifically appealed, a July 2018 VA examiner found the Veteran's peripheral neuropathy impacts his ability to work as he walks with a walker and is unsteady on his feet. Therefore, the Board finds that the issue of a TDIU is part and parcel of the Veteran's increased rating claims for peripheral neuropathy pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU Total disability will be considered to exist where there is present any impairment of mind and body that 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 as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection has been in effect throughout the appeal period for multiple disabilities. Service connection has been awarded for: posttraumatic stress disorder (PTSD), rated as 50 percent disabling; right upper extremity carpal tunnel syndrome, rated as 30 percent disabling since May 2015; diabetes mellitus, rated as 20 percent disabling; left and right lower extremity diabetic peripheral neuropathy of the sciatic nerve, each rated as 10 percent disabling; left and right lower extremity peripheral neuropathy of the femoral nerve, rated as 10 percent disabling; and left upper extremity carpal tunnel syndrome, rated as 10 percent disabling. The Veteran's combined rating was 80 percent from November 27, 2012 to May 26, 2016 and 90 percent thereafter. The Veteran has met the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). In a September 2015 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he worked for a public works department from 2006 to April 2011 and that he performed manual labor in that position. He also reported that he had four years of high school education and that he has not had any education or training either before or after he became too disabled to work. The key question at issue is whether the Veteran's service-connected disabilities, in and of themselves, have at least as likely as not, rendered the Veteran unable to secure or follow gainful employment at any time during the period under review. The evidence of record supports a finding that the Veteran's service-connected disabilities, including PTSD, right and left wrist carpal tunnel syndrome, diabetes, left and right lower extremity peripheral neuropathy of the sciatic nerves, and right and left peripheral neuropathy of the femoral nerves, at least as likely as not prevent him from obtaining or maintaining substantially gainful employment for the entire period on appeal. A March 2016 VA examiner found the Veteran could perform sedentary type work as long as it does not involve typing as this would aggravate his service-connected carpal tunnel syndrome. In another March 2016 VA examiner, the examiner noted mild incomplete paralysis of the sciatic nerve. The examiner also found no evidence of functional impact on his ability to work. The examiner reported that his condition does not limit him to function in sedentary occupations. An April 2016 VA examiner found the Veteran's diabetes do not impact his ability to work, and does not limit him to function in sedentary occupations. In an April 2016 VA PTSD examination, the Veteran reported he stopped working due to health problems, specifically due to foot and eventually knee problems. The Veteran stated he had difficulty with sleep, nightmares, intrusive thoughts mostly at night, hypervigilance, exaggerated startle, feeling detached, and difficulty relating to others. The Veteran described transient periods of depressed mood and decreased motivation. The Veteran reported decreased interest in activities. He stated he still isolates due to anxiety/irritability. The Veteran endorsed symptoms of difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. In a September 2016 VA peripheral nerves exam, the Veteran reported numbness and tingling of the bilateral hands and feet. He complained of severe numbness and paresthesias and/or dysesthesias of all extremities. The Veteran stated he uses a cane to steady his gait and due to right leg weakness. He also uses bilateral wrist braces to support the wrists due to pain in the joint. The examiner noted that the impact of the peripheral neuropathy on the Veteran's ability to work is unable to perform physical or sedentary labor as his neuropathy of the feet makes him unsteady on his feet. He is a fall risk. In a November 2017 VA progress note, the Veteran was referred to physical therapy for range of motion and strength in arms, balance, and proprioception due to diabetes and peripheral neuropathy. In reference to his neuropathy, the Veteran demonstrated noted sensory deficits, balance impairments, and gait impairments. The Veteran's evaluation revealed impaired static postural stability, impaired functional reach, impaired gait and increased fall risk. The Veteran was provided a rolling walker for ambulation today in order to improve his overall stability and to allow for decreased bilateral ankle weightbearing during gait secondary to pain with recent gout flare up. Based on findings, the provider noted that the Veteran would benefit from skilled physical therapy in order to improve his overall balance and reduce his risk of falls. A July 2018 VA examiner noted the Veteran's peripheral neuropathy impacts his ability to work as he walks with a rolling walker because she is unsteady on his feet. In a September 2018 VA examination, the examiner found mild paresthesias and/or dysesthesias with numbness was observed in the bilateral lower extremities. His muscle strength and deep tendon reflexes were normal with no evidence of muscle atrophy. The Veteran's sensation was described as normal and his gait was observed as abnormal with loss of balance. The examiner acknowledged the regular use of a walker, found mild incomplete paralysis of the right sciatic nerve, with normal findings on the left side and found anterior Mild incomplete paralysis of the left and right crural (femoral) nerve. No diagnostic findings were noted. No functional impact was noted as due to the Veteran's condition. Although the examiner acknowledged a separate diagnosis impacting the right lower extremity, it was not deemed a change or progression of this condition. The Veteran submitted a private vocational assessment ated in March 2021. The provider found that the records are consistent with an individual who is disabled and more likely than not unable to secure and follow substantially gainful employment as a result of his service-connected PTSD, diabetes, and sciatic and femoral diabetic peripheral neuropathy of the bilateral lower extremities. The provider also found the Veteran's right and left upper extremity carpal tunnel syndrome are more likely than not further precluded from security and following substantially gainful employment. The provider noted that all employment requires at least some minimal degree of interaction with a supervisor and employers expect that these interactions will be appropriate, professional, and free from verbal outbursts or argumentative behavior. The provider noted that the symptoms and limitation limitations from the Veteran's PTSD would more likely than not interfere with the Veteran's ability to interact appropriately and effectively with other in the workplace and that his diabetes contributes to his inability to meet employer expectations of adequate pace and productivity due to his increased thirst and subsequent frequent daytime voiding. The provider found that the Veteran has been precluded from performing the full range of physical requirement of even sedentary employment on a consistent and reliable basis due to his service-connected femoral and sciatic diabetic peripheral neuropathy of the bilateral lower extremities and that his limitation in standing and walking for prolonged periods due to his service-connected peripheral neuropathy of the lower extremities are inconsistent with the exertional demands of even sedentary employment. The provider also found the Veteran is more likely than not further precluded from securing and following substantially gainful employment even at the sedentary exertional level due to his service-connected left and right upper extremity carpal tunnel syndrome. The provider stated that most sedentary jobs require functional use of both upper extremities for gross and find manual dexterity for repetitive tasks. Based on the foregoing, the Board finds that the evidence is at the very least in equipoise that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. The relevant examination reports and clinical records show that the Veteran has physical limitations that would preclude prolonged walking or standing or manual dexterity and that his PTSD impacted his ability to establish and maintain effective work and social relationships as well as his ability to adapt to stressful circumstances. The private vocational assessor has explained in the March 2021 opinion how the combination of functional limitations caused by the Veteran's service-connected disabilities affect his ability to work in any capacity. VA's duty to maximize benefits requires it to assess all of a claimant's service connected disabilities to determine whether any combination of the disabilities establishes eligibility for SMC under 38 U.S.C. § 1114(s). See Buie v. Shinseki, supra; Bradley v. Peake, supra. In Bradley, 22 Vet. App. 280, the Court held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a "total" rating. When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley, 22 Vet. App. at 280). A veteran with a 100 percent schedular rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the SMC requirements (100 percent rating plus 60 percent rating). A TDIU could meet the SMC requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a "total" (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for SMC. See Buie at 249-50. The Veteran is being awarded a TDIU based on the combined effects of his service connected disabilities herein. However, the Veteran is not in receipt of a 100 percent rating for any one service-connected disability. Therefore, SMC under 38 U.S.C. § 1114(s) for statutory housebound benefits is not warranted. After considering the Veteran's total service-connected disability picture, coupled with the Veteran's work history and education, the Board finds it is at least as likely as not that the Veteran's service-connected disabilities collectively render him unable to secure or follow gainful employment. Resolving all doubt in the Veteran's favor, the Board finds that TDIU is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, femoral nerve, right lower extremity to include as secondary to service-connected diabetes mellitus is remanded. 2. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, femoral nerve, left lower extremity to include as secondary to service-connected diabetes mellitus is remanded. 3. Entitlement to SMC based on the need for aid and attendance of another person. The Board notes that the September 2018 VA examiner found that the Veteran has abnormal gait with loss of balance but also noted no functional impact on employment. These statements appear to be inconsistent. Furthermore, in a May 2019 appellant brief, the Veteran's representative asserted the Veteran's conditions have worsened. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). As such, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his peripheral neuropathy disabilities. The Veteran's attorney has asserted that SMC based on the need for aid and attendance is warranted in this case. Specifically, the attorney argues that the Veteran is unable to ambulate on his own without the use of an assistive device, that he is a fall risk and that he requries the assistane of his wife in order to protect himself from the dangers of his daily environment. The Veteran has not been afforded a VA examination to address such contentions. On remand, such an examintion should be conducted. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, afford the Veteran an appropriate VA examination to determine the nature and severity of his left and right lower extremity femoral nerve peripheral neuropathy. The record, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should identify the nature and severity of such impairments. In this regard, the examiner is requested to indicate whether the Veteran's left and right femoral nerve impairment results in mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis of the nerve. All opinions expressed should be accompanied by supporting rationale. 3. Following the receipt of outstanding records, forward the Veteran's claims file to an appropriate medical professional for an opinion regarding the Veteran's need for aid and attendance. The record, to include a copy of this Remand, should be made available to, and be reviewed by, the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to render the opinion. Following a review of all the relevant evidence, the examiner should address the following inquiries. In offering such opinions, the examiner is advised that the Veteran is service-connected PTSD, left and right upper extremity carpal tunnel syndrome, diabetes mellitus, left and right lower extremity diabetic peripheral neuropathy of the sciatic nerve and left and right lower extremity peripheral neuropathy of the femoral nerve. (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected disabilities alone render him to be in the need of the regular aid and attendance of another person? (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected disabilities alone result in: (1) the loss or loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (2) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair? (C) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected disabilities alone result in the loss or permanent loss of use of one or both feet; or (2) ankylosis of one or both knees or one or both hips? A rationale for any opinion offered should be provided. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.