Citation Nr: 21040713 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 10-22 563A DATE: July 6, 2021 ORDER Prior to September 2, 2020, entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities is denied. From September 2, 2020, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Prior to September 2, 2020, the preponderance of the evidence does not show that the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. 2. Resolving all reasonable doubt in favor of the Veteran, from September 2, 2020, the evidence demonstrates that his service-connected disabilities preclude him from securing and following any substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to September 2, 2020, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.15, 4.16, 4.19. 2. From September 2, 2020, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty form April 1967 to May 1983. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his substantive appeal, the Veteran indicated that he wanted a hearing at a local VA office. However, in a February 2015 correspondence, the Veteran indicated his desire to waive his right to testify at a hearing. Accordingly, the hearing request is deemed withdrawn. In a November 2020 rating decision, the RO granted the Veteran service connection for diabetes mellitus, nerve damage to the feet and legs, and a right eye condition. As this represents a full grant of the benefit sought, these issues are no longer on appeal before the Board. As the actions specified in the prior remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). TDIU The Veteran generally contends that his service-connected disabilities prevent him from securing and following a substantially gainful occupation. The Veteran filed an informal claim for entitlement to a TDIU in January 2003. The Veteran last completed VA Form 21-8940 Application for Increased Compensation Based on Individual Unemployability in February 2009. On March 11 and March 30, 2021, the RO sent the Veteran VA Form 21-8940 Application for Increased Compensation Based on Unemployability, requesting a more up to date application given that the last was completed in 2009. Also in March 2021, the RO sent the Veteran's two listed previous employers requests on two separate occasions complete VA Form 21-4192 Request for Employment Information. To date, the Veteran's former employers have not responded, of which the Veteran was notified, and similarly to date, the Veteran has not returned a completed VA Form 21-8940. 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 totally disabled. 38 C.F.R. § 4.16. 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(a)(1), 4.15. 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 service-connected disabilities are sufficient to produce unemployability. 38C.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. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered as one disability. 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 substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski,1 Vet. App. 356 (1991). 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 age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. 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 or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. Geibv. Shinseki, 773 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the conclusions of VA examiners are not dispositive. However, the observations of the examiners regarding functional impairment due to service-connected disabilities go to the question of physical or mental limitations that may impact the veteran's ability to obtain and maintain employment. Entitlement to a TDIU The Veteran is currently service-connected for diabetes mellitus (rated 20 percent disabling); left lower extremity neuropathy, femoral nerve, associated with diabetes mellitus (rated 20 percent disabling); right lower extremity neuropathy, femoral nerve, associated with diabetes mellitus (rated 20 percent disabling); right eye diabetic retinopathy status post cataract surgery, associated with diabetes mellitus (rated 10 percent disabling from April 27, 2005, 20 percent disabling from September 9, 2020); left upper extremity neuropathy, associated with diabetes mellitus (rated 20 percent disabling); status post fracture, right ankle (rated 10 percent disabling); left lower extremity cellulitis, associated with diabetes mellitus, associated with diabetes mellitus (rated 10 percent disabling), right foot infection to include cellulitis, associated with diabetes mellitus (rated 10 percent disabling) and right upper extremity neuropathy, associated with diabetes mellitus (rated 10 percent disabling). From June 1, 2002, the Veteran's service-connected disabilities, with consideration of the bilateral factor, combine to a 70 percent rating. See 38 C.F.R. §§ 4.25, Combined Ratings Table; 4.26, Bilateral Factor. Moreover, since the Veteran's four separately-rated disabilities of the lower extremities are of common etiology (secondary to diabetes mellitus), they may be recognized as one disability for purposes of meeting the percentage requirements for a schedular TDIU. See 38 C.F.R. § 4.16 (a). Applying the Combined Ratings Table, the Board finds that these disabilities alone combine to a 50 percent rating (not withstanding the other service connected disabilities that are also secondary to the diabetes mellitus - other than the status post fracture of the right ankle). See 38 C.F.R. § 4.25. As such, the Veteran meets the criteria under 38 C.F.R. § 4.16(a) for consideration of a schedular TDIU based on a combined rating of 70 percent with one disability (those resulting from a common etiology) rated at least 40 percent. Thus, the question before the Board is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment consistent with his educational and occupational background. The evidence of record indicates that following separation from military service, the Veteran was self-employed for a time, worked as a school bus driver, as a recreation aid, as an international medical claims adjuster, substitute teacher, Sunday school teacher, provided home health care, worked as an assistant activities director in a nursing home, as a security guard, and as a residential counselor. Evidence also reflects that the Veteran completed 3 years of college and is a licensed reverend. Conflicting evidence of record indicates that the Veteran last worked in August 2002, and September 2010. During a June 2001 VA psychology visit, the Veteran reported not being able to hold jobs and having lost jobs recently because "[he] give[s] them [his] two cents worth." According to a January 2003 VA treatment note, the Veteran last worked in August 2002, in construction. The Veteran reported that he has been looking for a job but unable to find one. According to a January 2003 buddy statement, the Veteran's friend reported having known the Veteran for two years. In this time, he noticed a deterioration in the Veteran's ability to walk and stand on his feet and noted that the Veteran wears special shoes because of this. The Veteran's wife submitted a statement in February 2003. She reported that the Veteran cannot be on his feet for more than 2 hours due to pain and swelling before having to elevate his feet to get relief. The Veteran's wife reported that this makes it impossible for the Veteran to keep a job, stating that "not too many employers will let you work lying down on or at least with your feet propped up on a stool." In an October 2003 statement, the Veteran reported that he is unable to work because of his feet and collapsing bone structure therein. The Veteran also reported that due to his eye disability, he does not believe he will be able to read book print or drive a car for the remainder of his life. The Veteran underwent a VA bone conditions examination in September 2008. The VA examiner opined that the Veteran's right ankle disability impacts his usual occupation and daily activities in that the Veteran must sit after 30 minutes. No employment information was offered by the Veteran, and the examiner did not state that the Veteran was unable to work due to his right ankle disability. During a September 2010 VA psychology evaluation, the Veteran reported that he had completed 3 years of college, has worked as a substitute teacher, and as a Sunday school teacher. The Veteran also reported that he is a licensed reverend. During a September 2010 VA social work psychosocial assessment, the Veteran reported that while his wife is the primary financial supporter, that he is employed. During a December 2014 VA bone conditions examination, the Veteran reported being unemployed since 2002. The Veteran reported that his right ankle did not give him any problems, but he was using a wheelchair due to his left hip and pelvis. The examiner noted that the Veteran's right ankle disability did not result in any functional impairment regarding his ability to perform any type of occupational task. On September 2, 2020, the Veteran underwent an eye conditions VA examination. The Veteran reported that he was wheelchair bound and not working. The examiner concluded that the Veteran is blind in his left eye, and that this loss of visual acuity and contraction of the visual field of the right eye, reduces the Veteran's ability to see for work. On September 3, 2020, the Veteran underwent a diabetic sensory-motor peripheral neuropathy VA Examination. The examiner noted that severe weakness in the left leg (partial neuropathy and partial damage from acetabular fracture) causes difficulty with walking and standing. The Veteran also underwent a diabetes mellitus VA examination during this same time. The examiner noted that the Veteran's severe diabetic peripheral neuropathy with multiple episodes of foot cellulitis, result in functional impairment causing difficulty with prolonged standing, and walking. Based on the foregoing evidence of record, the Board finds that prior to September 2, 2020, the preponderance of the evidence does not show that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Initially, the Board notes that there is conflicting evidence as to whether the Veteran was employed and he has failed to complete the required VA forms as requested. More significantly, although the Veteran clearly experiences some functional impact due to his service-connected disabilities, and in fact, has been awarded a combined 70 percent disability rating in light of such impairment, his service-connected disabilities do not demonstrate that he is unable to obtain or retain substantially gainful employment. The Veteran has not presented sufficient evidence that his service-connected disabilities would preclude him from securing and following any substantially gainful employment. However, the evidence from the September 2, 2020 VA examinations reasonably supports a finding that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. The Board notes that the Veteran has not provided the information or VA forms requested by VA to adjudicate his claim of entitlement to a TDIU rating, specifically a VA Form 21-8940. The Court in Wood v. Derwinski stated that, "the duty to assist is not a one-way street." If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Given the evidence that the Board does have, it appears that prior to September 2, 2020, the Veteran's service-connected disabilities do not limit him such that he is unable to obtain or retain substantially gainful employment. In making this finding, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent that service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for his disabilities already compensate the Veteran for such impairment. Accordingly, the Board finds that, prior to September 2, 2020, the preponderance of the evidence is against finding that the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the Veteran's claim for entitlement to a TDIU must be denied. However, resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for a TDIU are met from September 2, 2020. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.