Case 22048803

Summary

The veteran, who served from May 1962 to May 1964, appeals the denial of Total Disability based on Individual Unemployability (TDIU). The veteran applied for TDIU in April 2012, citing health problems that drastically reduced his income and ability to perform demanding work. He had previously been self-employed in canvas work for boats. The Board reviewed the veteran's service history, education, and work experience, noting he completed high school and performed manual labor. The veteran's service-connected disabilities included sleep apnea (50%), prostate cancer (40%), diabetes (40%), and coronary artery disease (10%), with combined ratings of 70% from September 2010 and 80% from July 2015. His coronary artery disease rating was 100% from March 2018 to June 2018. From October 2018, he was rated 60% for chronic kidney disease. Medical evidence from VA examinations in April 2018 and October 2018 noted limitations due to diabetes and peripheral neuropathy, affecting his ability to work. A May 2019 examination noted weakness in hands and arms, and a June 2019 examination highlighted poor lower extremity sensation and weakness. The Board found TDIU warranted prior to March 8, 2018, and from June 1, 2018, as his combined disabilities, coupled with his work history and education, rendered him unable to secure substantially gainful employment. Service connection for sleep apnea was granted in July 2022, which is no longer on appeal.

Rationale

Veteran meets schedular requirements for TDIU; Disabilities impact ability to secure substantially gainful occupation; Board affords weight to veteran's statements and VA examinations

Full Decision Text

Citation Nr: 22048803
Decision Date: 08/26/22	Archive Date: 08/26/22

DOCKET NO. 17-23 055
DATE: August 26, 2022

ORDER

A total disability rating based on individual unemployability (TDIU) is granted prior to March 8, 2018, and from June 1, 2018.

FINDING OF FACT

Prior to March 8, 2018, and from June 1, 2018, the Veteran's service-connected disabilities satisfied the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) and cumulatively produced impairment that, considering his education, work history, and experience, is inconsistent with obtaining or following substantially gainful employment.

CONCLUSION OF LAW

The criteria have been met for TDIU prior to March 8, 2018, and from June 1, 2018.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1962 to May 1964.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO).

In a July 2022 rating decision, service connection for sleep apnea was granted.  This represents a full grant of the benefits sought, and the issue is no longer in appellate status.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 

This issue was previously before the Board in January 2018, May 2019, October 2019, May 2020, September 2020, April 2021, September 2021, and February 2022, when it was remanded for further development, that development was completed, and the case has since been returned to the Board for appellate review.

This appeal has been advanced on the docket.  38 U.S.C. § 7107; 38 C.F.R. § 20.900(c).

TDIU

It is the established policy of VA that all veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991).

A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

The Veteran submitted an April 2012 application for TDIU.  The application indicated the Veteran had completed high school and was previously self- employed.  The Veteran stated he did canvas work for boats and his health problems have led to a drastic reduction in income due to an inability to do the demanding work of his profession.

Prior to March 2018, the Veteran was service connected for sleep apnea at 50 percent, prostate cancer at 40 percent, diabetes at 40 percent, and coronary artery disease at 10 percent.  Additionally, the Veteran was service connected for non-compensable erectile dysfunction and anemia.  The Veteran had a combined rating of 70 percent
3.341, 4.16(a).  

The Veteran submitted an April 2012 application for TDIU.  The application indicated the Veteran had completed high school and was previously self- employed.  The Veteran stated he did canvas work for boats and his health problems have led to a drastic reduction in income due to an inability to do the demanding work of his profession.

Prior to March 2018, the Veteran was service connected for sleep apnea at 50 percent, prostate cancer at 40 percent, diabetes at 40 percent, and coronary artery disease at 10 percent.  Additionally, the Veteran was service connected for non-compensable erectile dysfunction and anemia.  The Veteran had a combined rating of 70 percent from September 2010 and 80 percent from July 2015.

The Veteran's coronary artery disease is rated at 100 percent from March 2018 to June 2018, and back to 10 percent from June 2018.  From October 2018 the Veteran is service connected for chronic kidney disease at 60 percent.

During an April 2018 VA diabetes examination, the Veteran reported avoiding strenuous occupational and recreational activities that would increase his chances of hypoglycemic episodes.  In October 2018, an examiner noted the Veteran's anemia affects his ability to work, including limited walking to half a block.

In an April 2019 statement, the Veteran's representative noted required use of a walker, mobility issues due to neuropathy, and urinary incontinence due to prostate cancer residuals.

A May 2019 VA peripheral neuropathy VA examination determined poor lower extremity sensations and weakness causing poor ambulation and obstructing activities of daily living.  A June 2019 VA peripheral neuropathy examination noted the Veteran's ability to work was affected by weakness in his hands and arms.  The Veteran noted and inability to make a fist or grab things.

The Board finds TDIU is warranted prior to March 8, 2018, and from June 1, 2018.  The Veteran has met the schedular requirements for TDIU from September 2010.  The Veteran had at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent; accordingly, the Board may consider the Veteran's claim on a schedular basis.  38 C.F.R. § 4.16(a).

The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his service-connected diabetes, prostate cancer, anemia, and coronary artery disease.  The Veteran's education and work history showed he performed manual labor and not sedentary work.  The Board affords significant probative weight to the Veteran's statements regarding his physical limitations.  Additionally, the Board affords significant probative weight to the April 2018 and October 2018 VA examinations regarding the Veteran's functional limitations.  Based on the Veteran's limitations, work history, and education he would be unable to secure and follow a substantially gainful occupation Accordingly, TDIU is warranted prior to March 8, 2018, and from June 1, 2018.

 

 

Patrick M. Johnson

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Whipple, C

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.