Citation Nr: 25003537 Decision Date: 03/13/25 Archive Date: 03/13/25 DOCKET NO. 19-00 064 DATE: March 13, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the laws and regulations controlling the award of monetary benefits. REMANDED Entitlement to service connection for eye disability, to include bilateral cataracts, as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for right leg disability is remanded. FINDING OF FACT The Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968, to include service in Vietnam. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from September 2014 and March 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claims of service connection for vision impairment and right leg condition and denied entitlement to a TDIU. In January 2020, April 2023, and March 2024, the Board remanded the claims for further development. In regard to the issue of entitlement to a TDIU, as the benefit sought is being granted in full, discussion of remand compliance is unnecessary. Regrettably, regarding the claim of service connection for right leg disability, another remand is warranted to comply with the Board's April 2024 remand directives. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268, 271 (1998). A remand is also required for the claim of service connection for eye disability. Entitlement to a TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in a veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran submitted a formal TDIU application on August 23, 2016. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently in receipt of service connection for coronary artery disease (CAD), evaluated at 60 percent from August 27, 2015; adjustment disorder with anxiety, evaluated at 30 percent from February 20, 2014; diabetes mellitus, evaluated at 20 percent from December 28, 2009; temporomandibular disorder, evaluated at 20 percent from August 20, 2024; and noncompensable hypertension. The Veteran's combined schedular rating is 80 percent, with one disability rated 40 percent, from August 27, 2015. He therefore meets the schedular criteria for entitlement to a TDIU from August 27, 2015 under 38 C.F.R. § 4.16(a). The relevant question is then whether the Veteran's service-connected disability or disabilities preclude gainful employment for which his education and occupational experience may otherwise qualify him. The term "unable to secure and follow a substantially gainful occupation" is defined as having two components: one economic and one non-economic. 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. The non-economic component includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In his August 2016 formal application for TDIU, the Veteran indicated that he last worked full-time from 2003 to March 2014 at a TJ Maxx distribution center in receiving and left his job because of his disabilities. He attended two years of high school and had no other education or training. In addition, the Veteran alleged that all of his service-connected disabilities prevented him from securing or following a substantially gainful occupation. During a November 2015 and October 2022 VA heart conditions examinations, the Veteran reported daily episodes of angina, fatigue, and intermittent dizziness and breathlessness upon walking more than 100 yards or climbing more than one flight of stairs. He also experienced constant cardiac arrhythmia. During a May 2021 VA posttraumatic stress disorder (PTSD) examination, the VA examiner found that the Veteran endorsed symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. The examiner also found that the Veteran experienced occupational and social impairment with deficiencies in most areas. For the following reasons, the Veteran's service-connected disabilities precluded gainful employment for which his education and occupational experience might have otherwise qualified him. The above evidence of record reflects that the Veteran attended two years of high school and was last employed in a retail distribution center. Overall, he experienced symptoms associated with his service-connected disabilities that resulted in functional impairments that would significantly interfere with his ability to secure and follow any substantially gainful employment consistent with his education and occupational experience. Specifically, the evidence of record reflects symptoms and impairments associated with his service-connected disabilities (including, but not limited to, daily episodes of angina, fatigue, intermittent dizziness and breathlessness upon walking more than 100 yards or climbing more than one flight of stairs, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships) that would prevent him from performing any type of substantially gainful employment (physical or non-physical) consistent with his education and occupational experience. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Thus, the Veteran's service-connected disabilities preclude any gainful employment for which his education and occupational experience might have otherwise qualified him, and entitlement to a TDIU due to the Veteran's service-connected disabilities is warranted. REASONS FOR REMAND Entitlement to service connection for right leg disability In a March 2024 decision, the Board directed that the Veteran be provided a VA examination to determine whether it was approximately at least as likely as not that any right leg disability had its onset in service or is related to service, to include presumed exposure to herbicide agents. The clinician was also reminded in the directives that a diagnosis is not required to establish disability, as disability can be established by showing that symptoms such as pain cause functional impairment of earning capacity. However, while the Veteran underwent a VA audiological examination in August 2024, the VA examiner conducting the examination found that there was no pathology to warrant a diagnosis. Thus, the August 2024 VA examiner did not heed the Board's March 2024 reminder in its decision that a diagnosis is not required to establish a disability, and therefore did not substantially comply with the March 2024 remand directives. Regrettably, another remand is therefore warranted to comply with the Board's remand directives. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). Entitlement to service connection for eye disability, to include bilateral cataracts, as secondary to service-connected diabetes mellitus The Veteran contends that his bilateral cataracts that were surgically repaired during the appeal period were related to his service-connected diabetes mellitus. Although the Veteran underwent VA eye examinations in December 2016 and September 2024, the examinations did not discuss whether the Veteran's bilateral cataracts were related to his service-connected diabetes mellitus. Thus, another remand is therefore warranted. Id.; McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim). Accordingly, the matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate VA clinician to determine whether it is approximately at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any right leg disability had its onset in service or is related to service, to include presumed herbicide agent exposure. The clinician is reminded that a diagnosis is not required to establish disability, as disability can be established by showing that symptoms such as dyspnea cause functional impairment of?earning?capacity. The claims file should be provided to?and?reviewed by the clinician. A complete rationale should accompany any opinion provided. 2. Obtain an opinion from an appropriate clinician to determine whether it is approximately at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's eye disability, to include bilateral cataracts, was either (a) caused or (b) aggravated by service-connected diabetes mellitus. If aggravation is found, the baseline level of disability should be identified to the extent possible. The clinician is reminded that the presence of a disability at the time of filing of a claim or during its pendency (in this case, February 2014) warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. The claims file should be provided to?and?reviewed by the clinician. A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.