Citation Nr: 22015447 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 20-19 234 DATE: March 17, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities, meaning the diabetic peripheral neuropathy of his lower extremities affecting the sciatic and femoral nerves, underlying type 2 diabetes mellitus with associated erectile dysfunction (ED), tinnitus, and hearing loss render him incapable of re-entering the workforce and working in any substantially gainful versus just marginal capacity. CONCLUSION OF LAW The criteria are met for his entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1965 to January 1969, including in the Republic of Vietnam. This appeal to the Board of Veterans' Appeals (Board) is from an October 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). Entitlement to a TDIU The Veteran applied for a TDIU in October 2017, stating his service-connected disabilities prevent him from working in any substantially gainful capacity. He indicated that he had been self-employed since sometime in 2000 or thereabouts, and other records show he retired in December 2016. He has not since re-entered the workforce, so he is still retired but, in effect, claiming he cannot return to working. The determinative issue in a TDIU case is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits him to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a service-connected disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). That said, the mere fact that a claimant is unemployed, as is the case here, or has difficulty obtaining employment is not enough. The ultimate question is whether he can perform the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether the Veteran is unemployable, consideration may be given to his level of education, special training, and previous work experience, but not to his age or to any impairment caused by disabilities that are not service connected. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned by the Board in the first instance where the schedular rating is less than total (meaning less than 100 percent) if it is found the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). For the purpose of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident, or affecting both upper extremities or both lower extremities or single bodily system are considered as one, collective disability. 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities are diabetic peripheral neuropathy of his lower extremities affecting the sciatic and femoral nerves with the sciatic nerve impairment rated as 40-percent disabling for each lower extremity and the femoral nerve impairment rated as 20-percent disabling for each lower extremity, underlying type 2 diabetes mellitus with associated erectile dysfunction (ED) rated as 10-percent disabling, tinnitus also rated as 10-percent disabling, and hearing loss rated as 0-percent disabling (so noncompensable). The combined rating for these several service-connected disabilities, when also considering the bilateral factor, has been 90 percent effectively since July 13, 2017. See 38 C.F.R. § 4.25 (VA's Combined Ratings Table). Moreover, the multiple ratings for the left and right lower extremity peripheral neuropathy are wholly attributed to the type II diabetes mellitus (i.e., are complications of it) so may be considered with the diabetes as one, collective disability since all arising from common etiology. Thus, the § 4.16(a) schedular rating requirements for a TDIU are met. Having determined the Veteran's service-connected disabilities meet the threshold minimum rating requirements of § 4.16(a), the remaining inquiry is whether they also render him unemployable again, meaning incapable of obtaining and maintaining what could be considered substantially gainful employment versus employment that, instead, is just marginal in comparison. On March 14, 2019, so during the pendency of this appeal, the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains both economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U. S. Department of Commerce as the poverty threshold for one person," whereas the noneconomic component requires considering a Veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a Veteran's ability to "secure and follow" such employment, noting that attention must be given to: his occupational history, education, skill and training; whether he has the physical ability to perform occupational activities; and whether he has the mental ability to perform occupational activities. Here, when considering all the relevant evidence of record, the Board finds that, at the very least, this evidence is in relative equipoise on the determinative question of whether the Veteran is unable to work in a substantially gainful capacity as a result of his service-connected disabilities. To reiterate, marginal employment is not substantially gainful employment. See 38 C.F.R. §§ 4.16(a), 4.18. The Veteran's statements and pleadings, and the record as a whole, confirm that he worked in salvage and reclamation while on active duty in the military and, after service, worked for 10 years as a mechanic before pursuing a career in carpentry and construction. He began his own licensed contracting company in January 2000, but he stopped as of December 2016, having given up his contractor's license when the symptoms owing to the diabetic peripheral neuropathy of his lower extremities became so debilitating that he simply could no longer safely use ladders, lift heavy loads, or climb stairs. His October 2017 claim cited an earned income of only $500 in the preceding 12 months. He is competent to make that attestation. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372, 1377-33 (Fed. Cir. 2007). Medical records reflecting complaints of lower extremity foot and leg pain first appear on record in May 2017, when the Veteran was referred for custom shoe orthotics. At the time, there was some speculation that his pain could be caused instead by nonservice-connected psoriatic arthritis, to be explored medically if his shoe orthotics did not provide relief. In July 2017, a private provider completed a VA Diabetes Mellitus Disability Benefits Questionnaire (DBQ), diagnosing diabetic peripheral neuropathy, so as a complication of the diabetes, albeit without also indicating scope or severity. A September 2017 VA peripheral neuropathy examination confirmed that diagnosis and indicated the Veteran's disabilities impaired his ability to stand, walk, or perform physical activities for a prolonged period. Symptoms of the disability included numbness, pain, and tingling in his lower extremities. Treatment notes from May through October 2018 show continued use of the shoe orthotics. The Veteran's October 2018 VA foot examination noted his reports of burning and pain with prolonged walking or standing, preventing climbing ladders or working. That examiner also observed pain objectively, accentuated with use, in the Veteran's feet, but relieved by orthotics. That examiner resultantly found no functional loss due to the pain. An October 2018 VA neuropathy examination conversely noted the neuropathy caused functional impairments in climbing, standing, and walking for prolonged periods, but also suggested the Veteran could still work in sedentary jobs. The examiner took a greater issue with the Veteran's claimed disability, noting that he was being treated for psoriasis with Tumor Necrosis Factor (TNF)-alpha blockers, a side-effect of which is peripheral neuropathy. This examiner suggested this could affect or even be the cause of the Veteran's symptoms. However, the record also contains private provider notes from October 2018 showing neuropathy secondary to, so a complication of, the type II diabetes mellitus and a prescription for the medication Neurontin, also called gabapentin. Follow up notes from November 2018 show Neurontin was helping prevent neuropathy pain from waking the Veteran at night, resulting in a dosage increase. VA provider notes from May 2019 affirmative ruled out TNF-alpha blockers as a cause of his peripheral neuropathy, noting that removing him from those medications did not alter his symptoms. More recent treatment notes indicate continued use of gabapentin for the pain. Prior to assessing this evidence further, the Board first points out the Veteran's other service-connected disabilities can affect his functioning. His August 2018 hearing loss and tinnitus examination noted that both service-connected conditions cause difficulty hearing while at work and with competing noises. His type II diabetes mellitus, while the attributed cause of his left and right lower extremity peripheral neuropathy, has not itself been found to hinder him in any way in the employability context. Therefore, in sum, the record contains probative (competent and credible) evidence that the Veteran's service-connected diabetic peripheral neuropathy of his lower extremities causes him pain and numbness that prevents him from safely working in home construction and contracting, specifically by preventing him from standing, walking, or climbing ladders safely or for prolonged periods. It is worth acknowledging additionally in this regard that, generally, the degrees of disabilities specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 4.1, 4.15. In other words, the disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Therefore, the record must reflect some factor that takes a particular case outside the norm for a TDIU claim to prevail. To reiterate, as the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he can perform the physical and mental acts required by employment, not whether he can find employment. The Board again observes that the Veteran has worked as a mechanic or in carpentry and construction for almost his entire career that is to say, he worked with his hands and likely was often on his feet. There is no indication of experience or training in other fields, including that would provide transferable skills and allow him to work a less physically demanding (i.e., sedentary) job. Moreover, his service-connected hearing loss and tinnitus limit him in any employment setting, regardless of the nature of the work. The evidence therefore is at least in relative equipoise concerning whether he can successfully re-enter the workforce and perform the physical and mental acts required by employment, certainly if substantially gainful employment and not just marginal employment. Considering his physical limitations from his bilateral lower extremity peripheral neuropathy and communication challenges owing to his hearing loss and tinnitus, the Board finds the evidence shows that, for all intents and purposes, he is precluded by his service-connected disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. At the very least, there is "approximate" (meaning nearly equal) balance of evidence for versus against this claim if not evidence more supportive of this claim than against it. In this circumstance the claim is granted rather than denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Also, this TDIU determination ultimately is the responsibility of the VA adjudicator rather than any medical examiner, who instead comments on the functional impact of the service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.