Citation Nr: 22016389 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 09-32 088 DATE: March 22, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to June 15, 2011 is denied. REMANDED Entitlement to service connection for a respiratory disorder is remanded. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran was unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities prior to June 15, 2011. CONCLUSION OF LAW The criteria for a TDIU prior to June 15, 2011 were not met on a schedular basis and referral for extraschedular consideration is not warranted. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to May 1972, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. Although he elected to testify at an additional Board hearing, the Veteran failed to appear for the April 2018 hearing. There are no outstanding hearing requests. This case has an extensive procedural history but was most recently before the Board in November 2021 when it was remanded for additional development. It has returned for adjudication. The Veteran asserts that a total disability rating is warranted prior to June 15, 2011 because he is unable to work due to his service-connected disabilities. 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. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "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." See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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. §§ 3.340, 3.341, 4.16(a). Prior to June 15, 2011, the Veteran is service connected for Type II diabetes mellitus, rated 20 percent disabling from January 26, 2004; peripheral neuropathy of the right upper extremity, rated 10 percent disabling from December 3, 2009; peripheral neuropathy of the left upper extremity, rated 10 percent disabling from December 3, 2009; peripheral neuropathy of the right lower extremity, rated 10 percent disabling from December 3, 2009; and peripheral neuropathy of the left lower extremity, rated 10 percent disabling from December 3, 2009. His combined disability rating during the appeal period was 20 percent prior to December 3, 2009 and 50 percent thereafter. Accordingly, the Veteran did not satisfy the schedular requirements for a TDIU pursuant to 38 C.F.R. § 4.16(a) at any time. If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board cannot address in the first instance whether the Veteran is entitled to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) without referring the matter to the Director of Compensation Service. Thus, the issue before the Board is whether a remand for referral for extraschedular consideration for TDIU is warranted. In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." In this case, that standard has not been met. As further explained below, the Board concludes that the Veteran's service-connected disabilities did not preclude substantially gainful employment prior to June 15, 2011, and remand for referral for extraschedular consideration of TDIU is denied. Initially, the Board notes that the Veteran first raised the issue of entitlement to a TDIU in 2002. However, as noted above, the Veteran was not awarded service connection for any disabilities until January 26, 2004. Accordingly, the Board finds no basis to find a TDIU was warranted prior to that time. Upon review of the record, the Board finds that the evidence persuasively weighs against finding that the Veteran's service-connected diabetes mellitus and associated peripheral neuropathy precluded him from securing or following a substantially gainful occupation prior to June 15, 2011. On his April 2005 Application for Increased Compensation Based on Unemployability, the Veteran indicated he was unable to work related to schizophrenia. He further noted that he was last employed in December 1978 with the Internal Revenue Service (IRS) but that he left employment related to his disability. The Veteran reported that he completed 1 year of college and that he completed training as a private investigator in 2003. The Veteran was afforded a VA examination for his diabetes mellitus in December 2005. At that time, the Veteran reported that he retired in 1979. He had no visual problems, bladder impairments, or bowel function impairments related to his diabetes mellitus. The Veteran was afforded an additional VA examination in April 2008. At that time, he was noted to be taking insulin and oral medication for diabetes control. He denied any episodes of hypoglycemic reactions or ketoacidosis. He was instructed to follow a restricted or special diet but was not restricted in his ability to perform strenuous activities. He denied symptoms of diabetic related peripheral vascular disease, cardiac symptoms, visual symptoms, neurovascular symptoms, and peripheral neuropathy. He did report nausea related to his diabetes. During the November 2009 Decision Review Officer hearing, the Veteran reported that his mental health and illnesses kept him from working. He stated that he was receiving Social Security Disability based on his mental illness and arthritis. During a November 2009 VA examination, the Veteran reported a hypoglycemic reaction 1 time per week. He denied ever being hospitalized for hypoglycemic reactions or ketoacidosis. He was on a low salt diet, taking a nasal spray for diabetes, and insulin twice a day. He saw his diabetic care provider every 6 months for review of his diabetic problems. He had anal pruritis and a loss of strength. He denied visual problems, kidney problems, and heart problems related to diabetes mellitus. The Veteran did report numbness and tingling of the feet and toes and hands and fingers. The Veteran reported that he stopped working in 1978 related to his psychiatric problems. On examination, the Veteran was diagnosed with moderate peripheral neuropathy of the upper and lower extremities that caused numbness and tingling 2 or 3 times per day that is mild and severe pain in the extremities during flare-ups 2 or 3 times per day without functional loss. The Veteran indicated that the peripheral neuropathy did not interfere with his daily activities. During the July 2014 Board hearing, the Veteran testified that he was previously a county administrator and he left there to work for the IRS. He stated that he left work in 1979 to seek treatment at a mental hospital and after that he was not able to get hired. The Veteran's Social Security Administration records indicate that he was awarded disability benefits beginning in 1986 related to his schizophrenia and other functional psychotic disorders. Importantly, the Veteran is not service connected for any psychiatric disability, but rather schizophrenia is connected for "treatment purposes only." A review of the evidence of record, taken in total, does not suggest that the Veteran was unable to obtain or maintain substantially gainful employment solely due to diabetes prior to December 3, 2009, or the combined effects of service-connected disabilities including diabetic peripheral neuropathy of the bilateral upper and lower extremities from that time. Indeed, the examination reports of record do not indicate that the Veteran was restricted in his activities and while he reported hypoglycemic reactions, he denied hospitalizations for such. Even when he was diagnosed with diabetic peripheral neuropathy, the Veteran denied that the disabilities impacted his daily activities. The Veteran has not identified or submitted any evidence demonstrating that his service-connected diabetes mellitus and peripheral neuropathy preclude him from securing and maintaining substantially gainful employment. The Board finds it particularly persuasive that the Veteran regularly reported that he stopped working related to his non-service-connected psychiatric disorder. Because a psychiatric disorder is not service connected, such cannot support a claim of TDIU. The Board finds that the evidence persuasively weighs against finding that the Veteran's unemployability was due to his service-connected disabilities or that the Veteran would be unable to obtain gainful employment due to his service-connected disabilities in light of his education and employment history. Accordingly, the Board concludes that entitlement to a TDIU is not warranted on a schedular basis and that the criteria for referral for extraschedular consideration are not met. 38 C.F.R. § 4.16(b). As the evidence is persuasively against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND By way of history, the Veteran filed separate claims for entitlement to service connection for allergies, asthma, and disabilities caused by smoking. The RO adjudicated these claims separately, addressing the disabilities of allergic rhinitis, asthma, and bronchitis, respectively. The October 2015 Board remand recharacterized the issues, addressing them together as "respiratory disorders." See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In that remand, the Board further indicated that despite a notation of allergies, hay fever, and asthma on his report of medical history for entrance, the Veteran was ultimately found to be in sound condition at entry as noted on the report of medical examination. The Board emphasizes that an indication of past disorder or disability by a veteran on a report of medical history is not enough to prevent the presumption of soundness from attaching. Gray v. Nicholson, 21 Vet. App. 104 (2006). Accordingly, and despite statements in the April 2020 Board remand, the Veteran did not have a pre-existing respiratory disorder noted at entrance to service and the presumption of soundness attaches. As has been addressed previously, the Veteran was treated in service for allergic rhinitis and upper respiratory infections on various occasions, to include in March 1969, May 1970, March 1971, September 1971, and October 1971. Additionally, after service, he was treated for bronchitis in September 1977, December 1985, and April 1988. While the Board sincerely regrets the additional delay, an adequate opinion has not yet been obtained with respect to the Veteran's respiratory disorder claim. An opinion should be obtained that addresses whether there is clear and unmistakable evidence that a respiratory disorder, to include asthma, allergies, and/or hay fever, pre-existed service and was not aggravated therein. Alternatively, the examiner must opine whether the Veteran has a current respiratory disorder that is etiologically related to his period of active service, to include his in-service treatment for allergic rhinitis and upper respiratory infections. Notably, the Veteran competently and credibly reported ongoing respiratory symptoms since his period of active service. The matters are REMANDED for the following action: Obtain an opinion regarding the nature and etiology of the Veteran's claimed respiratory disorder. The claims file, to include a copy of this remand, should be available to and reviewed by the examiner. If an additional examination is deemed warranted, one should be arranged. All indicated tests and studies should be completed. Thereafter, the examiner should respond to the following: (a.) Indicate all respiratory disorders diagnosed during the appeal period, to include chronic bronchitis and chronic obstructive pulmonary disease. (b.) Is there clear and unmistakable (i.e., undebatable) evidence that the Veteran had a respiratory disorder prior to service? The examiner should consider the April 1968 enlistment examination finding that the Veteran's lungs were normal. (c.) For any respiratory disorders that clearly and unmistakably pre-existed service, is there clear and unmistakable (i.e., undebatable) evidence that the disorder was not aggravated beyond its natural progression by the Veteran's period of active service? The examiner should address the in-service treatment for upper respiratory infections and rhinitis. (d.) For any disorder that the examiner finds did not clearly and unmistakably pre-exist service and/or clearly and unmistakably was not aggravated therein, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during or is otherwise etiologically related to the Veteran's period of active service, to include his in-service treatment for upper respiratory infections and rhinitis. The examiner should consider the Veteran's competent reports of respiratory disorder symptoms since service. A complete rationale should be provided for all opinions offered. In rendering his or her opinions, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran's service treatment records are silent as to treatment for a currently diagnosed respiratory disorder or complaints thereof. The examiner is also advised that a lack of medical records demonstrating a continuity of care after service cannot form the sole basis of a negative opinion. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.