Citation Nr: 22042657 Decision Date: 07/27/22 Archive Date: 07/27/22 DOCKET NO. 16-59 008 DATE: July 27, 2022 ORDER Since November 23, 2007, total disability based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU from October 10, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to January 1970. By way of background, in a May 2008 rating decision service connection for diabetes type II, bilateral lower extremity peripheral neuropathy was granted effective November 23, 2007. The Veteran noted disagreement with the ratings assigned and appealed to the Board. In a May 2016 decision with docket number 09-37 167A, the Board remanded the claim of TDIU. This claim, however, was never returned to the Board. Instead, the regional office readjudicated the claim in a January 2016 rating decision. Luckily, the Veteran also perfected an appeal of the January 2016 rating decision to the Board. The Board remanded the claim in March 2020. In December 2020, a supplemental statement of the case (SSOC) was issued. Pursuant to the Appeals Modernization Act (AMA), the Veteran submitted a VA Form 10182 (Board Appeal) in January 2021, by which he opted the claim into the modernized system. However, in a March 2021 decision, the Board again addressed the claim in the legacy system and denied entitlement to TDIU. The Veteran appealed the Board's March 2021 decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2022 Order, the Court granted a January 2022 Joint Motion for Remand (JMR) vacating the Board's March 2021 decision and remanding the claim to the Board. Given that the Board is granted TDIU in this decision, and the Court granted the JMR vacating the Board's legacy system without addressing the January 2021 opt-in, the Board finds that addressing entitlement to TDIU in the legacy system will not result in prejudice to the Veteran. Thus, the claim will be adjudicated in this decision. Entitlement to TDIU The Veteran claims that he has been unable to secure and maintain gainful employment since November 23, 2007, the effective date for service connection for his diabetes and diabetic complications. 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). For TDIU, a single disability includes disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a)(2). The Veteran's current service-connected disabilities are: (1) type II diabetes mellitus with erectile dysfunction, rated 20 percent disabling from November 23, 2007, 40 percent disabling from October 9, 2008, and 20 percent disabling from January 23, 2009; (2) diabetic nephropathy associated with type II diabetes mellitus, rated 30 percent disabling from October 15, 2014; (3) left lower extremity (sciatic nerve) peripheral neuropathy associated with type II diabetes mellitus, rated 20 percent disabling from November 23, 2007; (4) right lower extremity (sciatic nerve) peripheral neuropathy associated with type II diabetes mellitus, rated 20 percent disabling from November 23, 2007; (5) left lower extremity (femoral nerve) peripheral neuropathy associated with type II diabetes mellitus, rated 20 percent disabling from November 23, 2007; (6) right lower extremity (femoral nerve) peripheral neuropathy associated with type II diabetes mellitus, rated 20 percent disabling from November 23, 2007; (7) diabetic peripheral neuropathy of the left upper extremity associated with type II diabetes mellitus, rated 10 percent disabling from October 24, 2014; and (8) diabetic peripheral neuropathy of the right upper extremity associated with type II diabetes mellitus, rated 10 percent disabling from October 24, 2014. The Veteran had a combined disability rating of 70 percent from November 23, 2007, the date service connection was first established. As all the Veteran's disabilities result from type II diabetes mellitus, they will be considered as one disability for the purpose of TDIU. 38 C.F.R. § 4.16(a)(2). Thus, the Veteran's combined disability rating meets the threshold schedular criteria for eligibility for TDIU from November 23, 2007, and the Board must determine whether the Veteran's service-connected disabilities prevent him from securing and maintaining substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran submitted a VA Form 21-8940 in January 2015, January 2016, and March 2018. He reported that he last worked full-time in July 1998 as a police sergeant. The Veteran retired from this position. He had no further employment. He indicated that he had a bachelor's degree and that he did not have any additional education and training since he became too disabled to work. On his March 2018 VA Form 21-8940, the Veteran indicated that he tried to obtain employment since he became too disabled to work. The record contains the Veteran's April 2022 private TDIU Vocational Assessment Report. Following a review of the Veteran's claims file and a telephone interview with the Veteran, the private vocational expert concluded that, as a result of the Veteran's service-connected disabilities, he has not been able to secure or consistently perform any substantially gainful occupation, even an unskilled occupation, within the general labor market since at least 2007. The Veteran reported that, over the years of working as a police officer, he gradually started to experience difficulties performing his job duties due to becoming easily tired, and he noticed that he could not stand or walk for prolonged periods of time due to developing pain in his legs and slowness of movements in his legs and arms; therefore, he decided that it was best that he retire since he was eligible for retirement from the police force and did so in July 1998 after 28 years of service with the police force. The private vocational expert cited information from the United States Department of Labor, which noted that the occupation of police officer required the performance of skilled work within the Medium Physical Demand Level. The private vocational expert indicated that such a level of physical demand requires standing and/or walking at least six hours out of an eight-hour workday with exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects at a production rate. The Veteran's occupation also required frequent handling, grasping, and reaching, with occasional stooping, bending, and/or crouching, and could occasionally require restraining suspects. The private vocational expert provided the opinion that due to the severe level of functional limitations resultant of Veteran's service-connected disabilities, which all result from his type II diabetes mellitus, he is unable to perform the physical demands in any occupation. The private vocational expert cited VA examination reports which note that the Veteran's service-connected disabilities impact his ability to work due to limitations in prolonged standing and loss of dexterity. Additionally, the vocational expert stated that all of the Veteran's vocational training and skills are related to his occupation of police officer that are not transferable to alternate occupations within the general labor market. Consequently, the Veteran would be restricted to unskilled work as alternate employment within the general market. As noted above, the vocational expert concluded that the Veteran has not been able to secure or consistently perform any substantially gainful occupation, even an unskilled occupation, within the general labor market since at least 2007. The vocational expert noted that unskilled occupations also require physical demands that the Veteran would be unable to perform due the limitations resulting from his service-connected disabilities. The Board finds the evidence of record as a whole demonstrates the Veteran's service-connected disabilities prevent him from securing and maintaining substantially gainful employment throughout the entire appeal period. The April 2022 private vocational assessment is probative evidence that the Veteran's service-connected conditions caused an inability to sustain the full range of physical demands on a consistent and reliable basis required to perform the duties of a police officer, the sole occupation in the Veteran's work history. The Veteran would also be unable to perform the physical demands of unskilled positions. The vocational expert stated that all of the Veteran's vocational training and skills are related to his occupation of police officer that are not transferable to alternate occupations within the general labor market. Thus, the Veteran is only qualified for occupations that require physical labor. The private vocational expert provided a definitive opinion supported by a fully articulated rationale with citations to the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board recognizes the evidence of record also includes VA examination reports which contained functional assessments of the Veteran's occupational limitations from his service-connected disabilities, some of which did not find the Veteran to be totally unemployable. However, the April 2022 private vocational assessment, when viewed with the Veteran's competent lay evidence of his symptomatology and work history, puts the evidence in at least relative equipoise on this matter. Furthermore, the Board notes that, during his interview with the April 2022 private vocational expert, the Veteran clarified that he retired from his occupation as a police officer because he started to experience difficulties with performing the physical demands of his job as a result of the limitations from his service-connected disabilities. Thus, affording the Veteran the benefit of the doubt, the Board finds that he has been unable to secure and maintain substantially gainful employment since November 23, 2007, and the claim of entitlement to TDIU is granted. 38 C.F.R. § 3.102. Jason George Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.