Citation Nr: 21032078 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-23 156 DATE: May 25, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence shows that his service-connected disabilities precluded him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1965 to September 1967. He died in May 2016; his son is the substituted claimant. In March 2016, the Board of Veterans' Appeals (Board) remanded this issue for additional development. As the remand directives have been substantially satisfied, the Board will proceed with adjudication of this matter. TDIU The Veteran contended that his service-connected disabilities made him unable to obtain and maintain substantially gainful employment. The Board finds that entitlement to a TDIU is warranted. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). 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. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran's service-connected disabilities consisted of bilateral hearing loss, evaluated as 60 percent disabling; diabetes mellitus, type II, with erectile dysfunction, evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; left lower extremity peripheral neuropathy, evaluated as 10 percent disabling; and right lower extremity peripheral neuropathy, evaluated as 10 percent disabling. As the combined evaluation was 80 percent, the schedular criteria for a TDIU were met. 38 C.F.R. § 4.16 (a). The record indicates that the Veteran had not worked since at least February 2007. See Social Security Administration (SSA) Records, obtained in July 2012. The record also indicates that the Veteran's service-connected disabilities prevented him from securing or maintaining any employment. On his December 2011 TDIU application form, the Veteran indicated that he had not worked since February 2007. Specifically, he noted that he last worked for a contracting company as a bulldozer operator, from February 2002 to February 2007. He also indicated that he lost 12 weeks of work from illness. The form shows that the Veteran completed four years of high school, with no college education. No other education or training was completed. VA made at least three attempts to try to obtain verification of employment from the Veteran's former employer. Then in October 2020, it was documented, after making several requests for information from the Veteran's last employer, that an internet search revealed that the company had permanently closed. On the Veteran's 2007 SSA application for disability benefits, it was first indicated that his service-connected disabilities were the primary reason why he was unable to work. See Veteran's 2007 SSA Records; see also January 2015 Informal Hearing Presentation from the Veteran's Former Representative. The SSA initially denied the Veteran benefits, but later granted those benefits with the addition of nonservice-connected disabilities, including chronic obstructive pulmonary disease (COPD). Id. [The Board notes that a September 2016 rating decision granted service connection for the cause of the Veteran's death, which was determined to be adenocarcinoma of the lung due to COPD.] In April 2011, the Veteran reported that his diabetes mellitus affected his employment as a bulldozer operator because he was bothered with irregular bowel movements and the constant need to urinate, that he experienced blurred vision and dizziness due to low blood sugar, and that he had a hard time controlling his blood sugar levels, preventing him from doing any kind of strenuous work. In January 2012, the Veteran's son and daughter-in-law provided statements regarding the impact of the Veteran's service-connected disabilities on his ability to work. In June 2014, the Veteran further stated that his diabetes mellitus badly affected his lower legs, and that he could only walk short distances due to muscle deterioration. See June 2014 VA Form 9 Lay Statement from Veteran. At a March 2012 VA examination for hearing loss and tinnitus, the examiner noted that the Veteran's hearing loss impacted ordinary conditions of daily life, including the ability to work. The Veteran explained that his hearing loss disability impacted his work as a bulldozer operator because he was unable to hear from the radio that was used for exchanging communication with his supervisors and co-workers when operating the bulldozer. He also reported that his ears would hurt at the end of the day and that the problems he experienced from his hearing and tinnitus disabilities caused him to retire from his position as a bulldozer operator. In a June 2012 addendum medical opinion, a VA examiner opined that the Veteran would not be a good candidate for routine working conditions due to his current diabetes mellitus condition and the increased risk of hypoglycemia. He further noted that the Veteran could however seek and become employed in a sedentary work environment that would not affect his diabetes mellitus and associated peripheral neuropathy conditions. In January 2021, after reviewing the Veteran's claims file, a VA examiner opined that the Veteran was limited in performing activities that required long walking, prolonged standing, running, and going up and down stairs due to the service-connected peripheral neuropathy. Regarding the Veteran's statements about frequent urination, irregular bowel movements, blurred vision and dizziness with low blood sugar levels, due to his other service-connected disabilities such as diabetes mellitus and hearing loss, the examiner agreed that that the Veteran experienced difficulty performing strenuous work due to poor energy, which was attributed to both high and low blood sugar levels from diabetes mellitus. [The Board notes that, pursuant to the March 2016 Board Remand, the Veteran was to be scheduled for additional VA examinations to determine the severity of his service-connected disabilities. However, he died prior to the scheduling of those examinations.] After carefully considering the evidence of record, including statements from the VA examiners, the Veteran, the Veteran's son, daughter-in-law, and former representative, regarding the effects of the Veteran's disabilities on his employability, the Board has determined that the positive and negative evidence regarding the Veteran's TDIU claim is in relative equipoise. The ultimate TDIU determination is the responsibility of a VA adjudicator and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board finds that the realistic chances of the Veteran obtaining and retaining employment must also be considered in light of his physical and educational capabilities. Thus, based on findings regarding his physical and educational capacities, the Board finds that the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. Accordingly, the Veteran was entitled to a TDIU until his death in May 2016. 38 C.F.R. § 4.16 (a). The claim for a TDIU is therefore granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.