Citation Nr: 21040460 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-22 842 DATE: July 3, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to June 10, 2019 is denied. FINDING OF FACT Prior to June 10, 2019, the Veteran's service-connected disabilities do not preclude substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU based upon service-connected disabilities prior to June 10, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to August 1973. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2013 rating decision, the RO denied entitlement to a rating in excess of 20 percent for diabetes mellitus and awarded service connection for peripheral neuropathy of the bilateral upper and lower extremities, and assigned initial 20 percent ratings for the left and right upper extremities, and initial 10 percent ratings for the left and right lower extremities. In an April 2015 rating decision, the RO denied entitlement to a TDIU. In June 2018, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge by videoconference in June 2018. A transcript is of record. In a June 2019 decision, the Board remanded the matter of entitlement to a TDIU, as well as other claims previously on appeal. In an October 2020 rating decision, the RO granted entitlement to a TDIU from June 10, 2019. In a January 2021 decision, the Board remanded the matter of entitlement to a TDIU prior to June 10, 2019. A supplemental statement of the case (SSOC) was issued in April 2021. The Veteran's VA claims file has been returned to the Board. 1. Entitlement to a TDIU prior to June 10, 2019. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 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, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this matter, entitlement to a TDIU effective from June 10, 2019 was awarded in an October 2020 rating decision based upon the combined effects of all of the Veteran's then-service-connected disabilities: diabetes mellitus type II and associated peripheral neuropathy of the bilateral upper and lower extremities, as documented by VA examinations dated June 10, 2019. At issue before the Board, in this matter, is whether the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities prior to June 10, 2019. The Board notes that the Veteran met the schedular criteria for consideration of a TDIU for the entire period on appeal. He is service-connected for peripheral neuropathy of the right upper extremity at 20 percent from March 27, 2011 and 40 percent from February 23, 2016; peripheral neuropathy of the left upper extremity at 20 percent from March 27, 2011 and 30 percent from June 20, 2018; acquired psychiatric disorder at 30 percent from February 7, 2012; diabetes mellitus, type II, at 20 percent; peripheral neuropathy of the left lower extremity at 10 percent from March 27, 1011 and 20 percent from June 20, 2018; and peripheral neuropathy of the right lower extremity at 10 percent from March 27, 2011 and 20 percent from June 20, 2018. The Veteran's combined disability rating was 60 percent from March 27, 2011, 70 percent from February 7, 2012, 80 percent from February 23, 2016, and 90 percent from June 20, 2018. The Board notes that for the period dating from March 27, 2011 to February 7, 2012, service connection was in effect for diabetes mellitus type II and peripheral neuropathy of the bilateral upper and lower extremities, associated with diabetes mellitus type II. While the Veteran's combined evaluation for compensation was 60 percent prior to February 7, 2012, when such increased to 70 percent, all of the Veteran's service-connected disabilities had a common etiology diabetes mellitus. Thus, the schedular criteria delineated in 38 C.F.R. § 4.16(a) have been met since March 27, 2011. Therefore, the Board will consider whether, prior to June 10, 2019, the Veteran's service-connected disabilities precluded gainful employment for which his education and occupational experience would otherwise qualify him. The Veteran submitted a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in September 2011 in which he asserted that he could not work due to his service-connected diabetes mellitus, and nonservice-connected bilateral knee disabilities. He reported that he last worked in 2006, as a machine operator. He stated, "I was laid off as the company was going out of business and, due to my service-connected disabilities, I have been unable to get gainful employment." The Veteran indicated that he has completed two years of college. The Veteran was afforded a VA examination in October 2012, at which time the examiner indicated that the Veteran's diabetes mellitus, type II, is managed by restricted diet and prescribed oral hypoglycemic agents. The examiner indicated that diabetes mellitus has no impact on the Veteran's ability to work; specifically, "diabetes mellitus and care [have] no effect on employability active or sedentary." A separate October 2012 VA examination noted that the Veteran had mild incomplete paralysis of the radial and median nerves, as well as mild incomplete paralysis of the sciatic and femoral nerves. The examiner reported that there was no evidence of muscle atrophy. The examiner indicated that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities has no impact on the Veteran's ability to work. The Veteran was afforded a VA psychological examination in October 2012, at which time the examiner determined that the Veteran did not suffer from a diagnosed psychiatric disorder. A Social Security Administration (SSA) Residual Functional Capacity Assessment dated in October 2013 indicated that the Veteran alleged arthritis, fatigue, depression, carpal tunnel syndrome, low back pain, stress due to not being able to work, restricted activities of daily living, pain in both knees, PTSD, concentration, and difficulty maintaining focus. The assessment concluded that the Veteran is capable of sedentary employment. VA treatment records include a neuropsychological testing consultation dated in August 2013. The treatment provider noted that the Veteran "described multiple experiences of everyday memory failures including forgetting appointments and telephone numbers, as well as difficulty remembering names. The Veteran additionally reported poor organization. He stated that he is unemployed due to his bilateral chronic knee pain. The Veteran stated that he was most recently a tire inspector for six months, but was fired in 2006 for poor conduct. Specifically, the Veteran reported that his supervisor perceived that the Veteran had raised his voice in a disrespectful manner, and he was fired. The Veteran reported that he previously worked as a material handler and forklift driver from 1999 to 2006, but was laid off. The VA treatment provider concluded that the Veteran did not have a cognitive disorder. VA treatment records dated in December 2015 noted that the Veteran "continues to have full disability from doing any type of work that requires physical activity because of the arthritis of his right and left knees. At a February 2016 VA examination, the Veteran's diabetes mellitus was noted to be managed by restricted diet and prescribed oral hypoglycemic agents. The examiner determined that the Veteran's diabetes mellitus has no impact on his ability to work. A February 2016 VA examination as to the Veteran's peripheral neuropathy indicated that he exhibited mild incomplete paralysis of the right and left medial, radial, and ulnar nerves. The examiner also indicated that the Veteran has mild incomplete paralysis of the right and left sciatic nerves. The examiner determined that the Veteran's peripheral neuropathy has no impact on his ability to work. The examiner indicated, the "Veteran states [he] retired [in] 2006 as tire factory inspector when he received Social Security disability for multiple conditions including back, knees, [and] neuropathy." The examiner continued, "Veteran states no work since, but describes limited activity at home/yard, basement stairs, walking around one block, all limited by back and knees, not by diabetic mellitus neuropathy, as he describes." In a March 2016 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), the Veteran reported that he is unable to work due to pain in his bilateral knees and low back. He indicated that he last worked in November 2006. A December 2018 VA examination indicated that the Veteran's diabetes mellitus symptoms continue to be managed by restricted diet and prescribed oral hypoglycemic agents. The examiner reiterated that diabetes mellitus has no impact on the Veteran's ability to work. In a December 2018 VA examination of the peripheral nerves, the examiner indicated that the Veteran continues to suffer from diabetic sensory polyneuropathy. The examiner reported that the Veteran exhibits moderate incomplete paralysis of the bilateral radial nerves, as well as moderate incomplete paralysis of the bilateral sciatic nerves. The examiner stated that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities does not impact his ability to work. Significantly, the clinical evidence throughout the appeal period does not indicate that the Veteran was unable to obtain and maintain gainful employment due solely to his service-connected disabilities prior to June 10, 2019 Rather, the clinical record reflects that his service-connected disabilities do not interfere significantly with his ability to participate in occupational activities. Moreover, as set forth above, the Veteran has repeatedly attributed his inability to obtain gainful employment to his nonservice-connected bilateral knee and back disabilities. There is no medical evidence to support a finding that his service-connected disabilities alone significantly interfered with his occupational abilities at any time prior to June 10, 2019. While the Board acknowledges the functional impairment resulting from the Veteran's diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, as well as acquired psychiatric disorder to include nightmare disorder, the evidence does not demonstrate that said service-connected disabilities at least as likely as not resulted in his inability to secure and follow gainful employment prior to June 10, 2019. Critically, the evidence does not indicate that the Veteran was unable to obtain and maintain gainful employment due solely to his service-connected disabilities at any time prior to June 10, 2019. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). For the above reasons, the evidence of record does not support a conclusion that the Veteran's service-connected disabilities alone made him unemployable. Id. at 1354 ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). In short, the Board finds that the evidence of record demonstrates the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation prior to June 10, 2019. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's TDIU claim. The benefit-of-the-doubt rule does not apply, and the issue of entitlement to a TDIU prior to June 10, 2019 is denied. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.