Citation Nr: 22012159 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 20-07 669 DATE: March 2, 2022 ORDER Entitlement to a total disability based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW 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, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board acknowledges the Veteran's request for a hearing as indicated on his February 2020 VA Form 9. However, the VA received a January 2022 communication from the Veteran to withdraw his request for a hearing and proceed with a judgement. Entitlement to a TDIU. The Veteran contends his disabilities have precluded him from securing and following substantially gainful employment. The Veteran was denied TDIU in a July 2018 rating decision because the rating assigned to his disability and his combined evaluation for compensation did not meet the criteria of 38 C.F.R. § 4.16. On the December 2018 Notice of Disagreement, the Veteran wrote that he qualifies for TDIU under bilateral disability factor. Generally, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by Director when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to Director is so warranted for extra-schedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In determining whether a TDIU is warranted, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a Veteran can secure or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). For purposes of the regulation, disabilities resulting from a common etiology or a single accident are considered to be "one disability," and their ratings are combined to determine eligibility. The Veteran was first service connected for any disability effective August 27, 2008. Currently, the Veteran is service connection for diabetes mellitus at 20 percent disabling, diabetic peripheral neuropathy (DPN) left upper extremity at 20 percent disabling, DPN right upper extremity at 30 percent disabling, DPN sciatic nerve left lower extremity at 20 percent disabling, DPN sciatic nerve right lower extremity at 20 percent disabling, DPN femoral nerve right lower extremity at 10 percent disabling, DPN femoral nerve left lower extremity at 10 percent disabling, and tinnitus at 10 percent disabling. The Veteran combined evaluation for compensation is 80 percent disabling. Pursuant to 38 C.F.R. § 4.16, the Veteran must have one disability rated at 60 percent or more than one disability with an overall rating of 70 percent and at least one disability rated at 40 percent. However, the regulation allows for an exception under the bilateral factor. Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor. Using the chart provided in 38 C.F.R. § 4.25, the ratings of the applicable disabilities can be added together to meet the rating requirement of 38 C.F.R. § 4.16. In this case, the Veteran is service connected for both upper extremities for DPN. The right extremity is 30 percent and the left extremity is 20 percent. Combining those ratings together using the table in 38 C.F.R. § 4.25, the Veteran's bilateral upper extremity disability rating is 44 percent. This meets the criteria of having at least one disability rated at 40 percent. In addition, the Veteran's overall combined evaluation is above 70 percent. Alternatively, the Board notes that most of his disabilities are of the same etiology (due to diabetes) and he meets the schedular criteria on that basis. In sum, the schedular percentage requirements for a TDIU are met during the relevant appeal period. Thus, the remaining question is whether the Veteran's service-connected disabilities prevent him from securing or follow substantially gainful employment. Education records indicate the Veteran enrolled into community college to earn an Associate degree as a tool and die maker. The evidence of record does not show completion of education in this program. On an April 2016 VA Form 21-8940, Application for Increased Compensation based on Unemployability, the Veteran indicated that his DPN prevented him from being able to continue work. See also May 2016 VA Form 21-8940. He worked as a tool maker for the same employer from 1985 to 2006. During an August 2010 VA examination, the Veteran reported that he was retired from employment since 2006. The reason given was eligible by age or duration of work. An April 2011 VA treatment record indicated the Veteran was a retired toolmaker since 2006. In August 2016, the Veteran underwent a VA examination to evaluate his service-connected disabilities related to diabetes. On the examination, the examiner wrote that the Veteran's disabilities impacted his ability to work, because he had difficulty gripping and holding objects and keeping balance. On an August 2018 examination, the examiner wrote that the Veteran had sensory impairment of the right lower extremity which is hazardous when working around machinery and tools. In addition, the Veteran's DPN bilateral upper extremity impacted his ability to work, because the Veteran had sensory deficiency. Due to the sensory deficiency, he would have difficulty with fine dexterity of the left and right hand. Review of the Veteran's education history shows that the Veteran has the educational qualifications for sedentary type employment. Considering the Veteran's service-connected disabilities cumulatively, combined with his limited education and job experience, the probative evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. Although the 2018 examiner indicated that the Veteran would be capable of sedentary work, the Board finds this likely would not be feasible given the impairment of his upper extremities. As such, the evidence is at least in equipoise as to whether the Veteran is entitled to a TDIU. Therefore, entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the AOJ will set an effective date for the award of a TDIU. This preserves the Veteran's right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.