Citation Nr: 1339180 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 07-33 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to a total disability rating based upon individual unemployability as a result of service-connected disabilities (TDIU) from February 26, 2010. 3. Entitlement to a total disability rating based upon individual unemployability as a result of service-connected disabilities (TDIU) on an extra-schedular basis prior to February 26, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to May 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decision rendered by the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA) in April 2005 (which denied service connection for sleep apnea) and March 2009 (which denied service connection for TDIU. As regards the claim for TDIU; that claim was most recently denied by way of a March 2010 RO decision, but an April 2011 statement of the case indicates the TDIU claim was on appeal since the March 2009 rating decision (which is based on and August 2008 claim for TDIU).. He had until June 6, 2011, to file a timely Substantive Appeal of that decision. See 38 U.S.C.A. § 7105 . A Substantive Appeal was not received until July 29, 2011. On his Substantive Appeal, the Veteran asked the RO to accept the untimely filing. It appears that the RO did so as it proceeded to schedule the Veteran for a VA examination addressing TDIU in October 2011. Because the RO waived the time deadlines in which to file a substantive appeal, the Board will, in turn, accept the appeal as timely and properly before the Board. See Percy v. Shinseki, 23 Vet. App. 37 (2009)(finding that 38 U.S.C.A. § 7105 was not intended to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal was untimely). In November 2011, the Veteran testified at a hearing at the RO before the undersigned. A transcript of the proceeding is of record. In April 2012, the Board, in part, remanded the matters on appeal to the RO for additional substantive development. The requested development has been completed and the appeal has returned to the Board for further appellate review. As noted in the Introduction of the Board's April 2012 decision, during the hearing before the undersigned and in other statements of record, the Veteran appeared to have claimed entitlement to service connection for gout affecting several joints other than the service-connected gout of the right big toe, rated as noncompensable. (See, e.g., Transcript at page (pg.) 6)). The claim of entitlement to service connection for gout affecting several joints, other than the right big toe, appears separate and distinct from the current issues adjudicated herein and has yet to be developed by the Agency of Original Jurisdiction. As such, this issue is referred to the AOJ for further development. The issue of Entitlement to a total disability rating based upon individual unemployability as a result of service-connected disabilities (TDIU) on an extra-schedular basis prior to February 26, 2010, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent and credible evidence of record shows that the Veteran's sleep apnea did not have its onset during active military service and is not etiologically related thereto, but has been attributed to non-service-related developmental/aging factors. 2. For the period from February 26, 2010, the Veteran has met the threshold requirements for a TDIU on a schedular basis; and he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Sleep apnea was not incurred in or aggravated by active military duty. 38 U.S.C.A. §§ 1110, 1131, 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. For the period from February 26, 2010, the criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5013, 5103(a), 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a), 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in February 2005 and September 2008, of the criteria for establishing service connection for sleep apnea and TDIU, respectively, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. In its September 2008 letter, the RO also notified the Veteran of how VA determines disability ratings and effective dates if service connection is awarded. These letter accordingly addressed all notice elements. Nothing more was required. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claim of and, therefore, appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained his service treatment records, as well as identified VA and private treatment records, to include VA treatment records from the Mobile, Alabama VA outpatient clinic, dated from June 2008 to September 2012, uploaded to the Veteran's Virtual VA electronic claims file. Records from the Social Security Administration (SSA) are also of record. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims files. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Pursuant to the Board's April 2012 remand directives, VA examined the Veteran in November 2011 and July 2012 to determine the effect, if any, that his service-connected disabilities had on his ability to obtain substantially gainful employment and the etiology of his sleep apnea, respectively. Copies of these examination reports have been associated with the Veteran's physical claims files. (See November 2011 VA general medical, hearing loss and tinnitus and mental disorders examination reports and July 2012 examination report). After reviewing the claims files performing physical examinations of and interviews with the Veteran, each examiner set forth a medical opinion that was supported with rationale. The examinations and examination opinions are considered adequate for decisional purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Some discussion of the Veteran's personal hearing before the undersigned is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issues on appeal (service connection for sleep apnea and entitlement to TDIU) were identified at the November 2011 hearing before the undersigned. Information was also elicited from the Veteran concerning the onset of his sleep apnea, when it had its initial onset during active duty, and how his service-connected back, feet and knee disabilities had interfered with his ability to maintain employment. (Transcript (T.) at pages (pgs.) 7-10)). Development ensued as a result of the Veteran's testimony. II. Merits Analysis (i) Service Connection Claim-Sleep Apnea The Veteran seeks service connection for sleep apnea. He maintains that his sleep apnea had its onset during military service, and that he has continued to have sleep problems since that time. The Veteran contends that in October 1974, he was told by a roommate that he snored loudly. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sleep apnea is not one of the recognized conditions recognized as chronic under 38 C.F.R. § 3.309 (a); thus, the tenets of 3.303(b) have not been invoked with respect to his claim. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Veteran currently has sleep apnea. (See July 2012 VA examination report). Thus, Hickson element number one (1), evidence of a current disability, has been met. With respect to Hickson element number two (2), evidence of an in-service disease or injury, the Veteran's service treatment records are wholly devoid of any subjective complaints of sleeping problems or clinical evidence of a sleep disorder. A March 1994 service retirement examination report is devoid of any clinical findings of a sleep disorder. On an accompanying Report of Medical History, the Veteran denied having had frequent trouble sleeping. Notwithstanding the foregoing, the Veteran is competent to report that he had problems sleeping and that he snored during military service as it is a symptom that comes to him through his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Thus, the Board finds that Hickson element number two (2) has been met. Thus, the crux of the Veteran's claim hinges on Hickson element number three (3), evidence of a nexus between currently diagnosed sleep apnea and his period of military service. There is one opinion that addresses this relationship and it is against the claim. VA examined the Veteran in July 2012. The VA examiner noted that he had reviewed the Veteran' s medical record, to include the above-cited service treatment records and post-service VA and private treatment records, containing an initial diagnosis of sleep apnea in 2003. The VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's sleep apnea was incurred in or caused by military service. The VA examiner reasoned that the preponderance of the medical evidence and expertise revealed that the proximate cause of the Veteran's obstructive sleep apnea was a developmentally narrow oropharyngeal airway with a superimposed elevation of body mass index and/or natural aging [process], both of which created encroachment of the airway with fatty soft tissues. This opinion is against the claim and is uncontroverted. The Veteran is competent, even as a layman, to comment on any symptoms within his five senses, such as having experienced sleeping problems during military service. His ex-spouse and daughter are also competent to report that they observed the Veteran having sleeping difficulties, such as snoring. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Regarding the claim for service connection, medical evidence is usually, though not always, required to associate a claimed condition with a service-connected disability. McQueen v. West, 13 Vet. App. 237 (1999). The Board finds medical evidence is needed to establish service connection in the instant case, since the Veteran's sleep apnea is not the type of condition that is readily amenable to mere lay probative comment regarding its etiology, given its inherent medical complexity. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Although a lay person may certainly attest to snoring, snoring is not necessarily synonymous with obstructive sleep apnea. There is no indication that the Veteran and his ex-spouse are competent to attribute his sleep apnea to military service. These are inherently complex medical determinations that require specialized medical expertise. The Board finds the Veteran's and his ex-spouse's lay statements regarding service connection for his current obstructive sleep apnea not competent as to the question of causation. Unlike the Veteran and his ex-spouse, his daughter has medical training, knowledge, and experience because she is a nurse. However, whatever medical expertise the daughter may have is of little probative value because she has a interest or bias in supporting her father's claim. This is an important factor the Board may consider in weighing the evidence. In any case, more probative value is assigned to the July 2012 VA physician's opinion he is a physician and has more medical expertise than a nurse. See Black v. Brown, 10 Vet. App. 297 , 284 (1997) (an individual's knowledge and skill in analyzing the medical data is a factor in evaluating the probative value of medical statements). In sum, the preponderance of the evidence is against service connection for sleep apnea. The benefit of the doubt rule therefore is inapplicable, and this benefit is denied. (ii) TDIU claim A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.26 (2013). Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a) (2013). In addition, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Prior to February 26, 2010, service connection was in effect for the following disabilities: (i) asthma (evaluated as 30 percent disabling); (ii) right shoulder disability (rated as 10 percent disabling); (iii) low back disability (rated as 10 percent disabling); (iv) tinnitus (rated as 10 percent disabling); (v) hypertension (rated as 10 percent disabling); (vi) major depressive disorder (rated as 10 percent disabling); (vii) left knee disability (rated as noncompensably disabling) ; (viii) left foot pes planus (rated as noncompensably disabling); (ix) right foot pes planus (rated as noncompensably disabling); (x) gout of the right big toe (rated as noncompensably disabling); and, (xi) bilateral hearing loss (rated as noncompnesably disabling). The combined disability rating for the service-connected disabilities for this period was no more than 60 percent. Accordingly, for the period prior to February 26, 2010, the Veteran did not meet the minimum threshold requirements for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). In the appealed March 2010 rating action, the RO determined that his case did not warrant referral for extraschedular consideration under 38 C.F.R. § 4.16(b). If a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), as is the case here for the period prior to February 26, 2010, an extraschedular rating is for consideration where a Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). To the extent the Veteran may be assigned TDIU on an extra-schedular basis prior to February 26, 2010, additional development is required, as will be explained in the Remand section of this decision. For the period from February 26, 2010, to July 28, 2013, service connection has been in effect for the following disabilities: (i) asthma (rated as 30 percent disabling); (ii) degenerative joint disease right shoulder impingement syndrome (rated as 20 percent disabling); (iii) degenerative joint disease of the lumbar spine (rated as 20 percent disabling); (iv) tinnitus (rated as 10 percent disabling); (v) hypertension (rated as 10 percent disabling); (vi) major depressive disorder (rated as 10 percent disabling); (vii) status-post arthroscopic surgery left knee disability with traumatic arthritis (rated as 10 percent disabling); (viii) pes planus left foot (rated as 10 percent disabling); (ix) right foot pes planus (rated as 10 percent disabling); (x) right foot gout (rated as noncompensably disabling); (xi) bilateral hearing loss (rated as noncompnesably disabling); and, (xii) right lower extremity radiculopathy (rated as 10 percent disabling). The combined total rating is 80 percent. For this period, as the Veteran has five (5) service-connected orthopedic disabilities result from a common etiology, they may be considered as one, collective, disability under 38 C.F.R. § 4.16(a). Thus, with the application of the bilateral factor (see 38 C.F.R. § 4.26), he met the schedular criteria for a TDIU effective February 26, 2010. For the period from July 29, 2013, service connection has been in effect for the following disabilities: (i) asthma (rated as 30 percent disabling); (ii) degenerative joint disease right shoulder impingement syndrome (rated as 20 percent disabling); (iii) degenerative joint disease of the lumbar spine (rated as 40 percent disabling); (iv) tinnitus (rated as 10 percent disabling); (v) hypertension (rated as 10 percent disabling); (vi) major depressive disorder (rated as 50 percent disabling); (vii) status-post arthroscopic surgery left knee disability with traumatic arthritis (rated as 10 percent disabling); (viii) pes planus left foot (rated as 10 percent disabling); (ix) right foot pes planus (rated as 10 percent disabling); (x) right foot gout (rated as noncompensably disabling); (xi) bilateral hearing loss (rated as noncompnesably disabling); and, (xii) right lower extremity radiculopathy (rated as 10 percent disabling). The combined total rating is 90 percent. From July 29, 2013, then, the Veteran has two separate disabilities rated at least 40 percent (major depression at 50 percent and degenerative joint disease of the lumbar spine at 40 percent), which provides the Veteran with a separate schedular basis for being eligible for TDIU under 38 C.F.R. § 4.16(a). Substantially gainful employment is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Furthermore, "[m]arginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). Factors to be considered will include the veteran's employment history, educational attainment and vocational experience, but marginal employment is not to be considered substantially gainful employment. Id. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. In Faust v. West, 13 Vet. App. 342, 355-56 (2000), the United States Court of Appeals for Veterans Claims (Court) held that "substantially gainful employment" for TDIU purposes is met where the annual earned income exceeds the poverty threshold for "one person," irrespective of the number of hours or days actually worked and without regard to any prior income history. The Board emphasizes that unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1995) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). VA received the Veteran's claim for TDIU in August 2008. (See VA Form 21-8940, Veterans Application for Increased Compensation on Unemployability, dated and signed by the Veteran in August 2008). The Veteran indicated that he was unable to secure any substantially gainful occupation because of his service-connected hypertension, and right shoulder and left knee disabilities. He reported that he had last worked full-time in September 2005 as a "heat/air mechanic" for Mobile Hearing Board. His gross earnings per month were $3,360. The Veteran indicated that he had left his job because of his "disability." He reported having lost 30 days from work due to "illness." He related that he had not tried to seek employment, nor did he expect to receive disability or worker's compensation benefits. The Veteran reported that he had completed two (2) years of college and one (1) year of heating and air [conditioning] mechanic training. The Veteran maintains that he is entitled to an award of TDIU because he is unable to maintain employment due to his service-connected right shoulder and left knee disabilities and hypertension, as well as his low back disability, asthma, sleep apnea, gout, left knee disability, tinnitus, and bilateral hearing loss disability. (See Veteran's SSA application, signed in November 2005; VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, dated and signed by the Veteran in August 2008; and, February 2010 VA examination report). There are private and VA opinions that are supportive of and against the claim for TDIU for the period prior to and from February 26, 2010. Evidence in support of the claim includes an October 2007 SSA award determination reflecting that the Veteran was awarded SSA benefits from September 23, 2005 based on primary and secondary diagnoses of Disorders of the back (discogenic and degenerative) and affective or mood disorders, respectively. In its award, SSA referenced a March 2006 report, prepared by Dr. R. C., a board certified psychiatrist, who had completed a residual functional capacity questionnaire of the Veteran. Dr. R. C. determined that the Veteran's estimated restriction of activities of daily living and episodes of deterioration or decomposition in work or work-like setting was moderate. Dr. R. C. further indicated that the Veteran's estimated degree of difficulty with maintaining social functioning and deficiencies of concentration, persistence or pace was marked, as was his ability to be supervised in a work setting and perform repetitive tasks. (See SSA award, page (pg.) 4)). Although the determination from SSA essentially was that the Veteran was unemployable, the findings of SSA are not binding on VA; each agency has its own law and regulations to consider in making a determination as to unemployability. See, e.g., Faust v. West, 13 Vet. App. 342, 356 (2000). Other evidence that is supportive of the Veteran's TDIU claim is a July 2010 statement, prepared by B. T., M. D. Dr. B. T. indicated that he had served as the Veteran's pain management provider since early February 2010. Dr. B. T. indicated that he had become "familiar" with the Veteran's active duty and VA medical records. Dr. B. T. noted that the Veteran suffered from degenerative disc disease of the lumbar spine and as a result, sleep disturbance and lower leg radiculopathy, numbness, weakness, and pain. After a physical examination of the Veteran and a review of his medical records, Dr. B. T. concluded that the Veteran was "[t]otally and permanently disabled" due to his low back condition. He opined that the Veteran could not hold gainful employment as a result of his service-connected disability. (See July 2010 statement, prepared by B. T., M. D.) Evidence against the claim includes February 2010 and November 2011 VA examination reports. At the February 2010 VA examination, the examiner provided detailed clinical findings with respect to the Veteran's service-connected right shoulder, low back and left knee disabilities, as well as his hypertension, gout and bilateral pes planus. At the close of the February 2010 examination, the VA examiner concluded that the Veteran would not be able to perform any type of physical labor but should be able to secure gainful, sedentary employment. The VA examiner noted that the Veteran experienced mild to moderate functional limitations as a result of his "service-connected disabilities," but he was still able to drive a motor vehicle, watch television, read, answer a telephone, and ambulate up to 50 feet. The examiner related that the Veteran could also perform very limited housework. (See February 2010 VA examination report). In light of Dr. B. T.'s and the February 2010 VA examiner's conflicting opinions with respect to his TDIU claim, VA examiners examined the Veteran in November 2011. VA general medical, audiological and psychiatric examination were performed. After an extensive physical evaluation of each of the Veteran's service-connected disabilities, which included x-rays of the veteran's feet, elbows and knees, pulmonary function study, and range of motion studies of his joints, the general medical examiner concluded that the Veteran's service-connected orthopedic disabilities (i..e, right shoulder, low back, left knee, gout, and bilateral pes planus); asthma; hypertension; and right lower extremity radiculopathy did not have any significant impact on his ability secure and maintain substantially gainful employment in a sedentary occupation that were consistent with his education and experience. (See November 2011 General Medical examination report). The November 2011 VA audiologist concluded, after conducting an audiological evaluation of the Veteran, that because of his bilateral hearing loss disability, he would have some difficulty communication effectively in group conversation. The examiner indicated that the Veteran's tinnitus would not create any functional limitations in an occupational environment. Overall, the VA audiologist opined that the Veteran's tinnitus and bilateral hearing loss disability would not have any significant impact on his ability to perform either physical or sedentary types of employment. (See November 2011 VA audiological examination). Finally, the November 2011 VA psychiatrist concluded, after a mental status evaluation, that the Veteran was capable of flexibly scheduled; part-time employment with limited stress/responsibility, and minimal interaction with staff and/or customers if applicable. (See November 2011 VA mental disorders examination report). Upon review of the evidence summarized above, the Board finds that from February 26, 2010, the evidence is at least in equipoise as the question of whether TDIU may be assigned. Therefore, affording the Veteran all reasonable doubt, the Board concludes that entitlement to TDIU is warranted. The Board finds that the SSA determination, which found that the Veteran is disabled for the purpose of maintaining employment due in large part to service-connected disabilities, is persuasive. The Veteran has also submitted significant other evidence on his behalf that is supportive of his claim. While much of this is rebutted by conflicting VA medical evidence, the Board finds it significant that the Veteran suffers from over a dozen disabilities for which he has compensable ratings. In July 2011 this included a 50 percent disability rating for major depression and a 40 percent rating for his lumbar spine. The Board finds that it is reasonable to conclude under these circumstances that the Veteran is unable to secure or follow substantially gainful employment. For all these reasons, the Board finds that an award of TDIU is warranted from February 26, 2010. ORDER Entitlement to service connection for sleep apnea is denied. From February 26, 2010, entitlement to a total disability rating based upon individual unemployability as a result of service-connected disabilities (TDIU) is granted. [Continued on Next Page] REMAND The Board finds that additional development is needed with respect to the issue of entitlement to a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b), prior to February 26, 2010. As was noted earlier in this decision, prior to February 26, 2010, service connection was in effect for the following disabilities: (i) asthma (evaluated as 30 percent disabling); (ii) right shoulder disability (rated as 10 percent disabling); (iii) low back disability (rated as 10 percent disabling); (iv) tinnitus (rated as 10 percent disabling); (v) hypertension (rated as 10 percent disabling); (vi) major depressive disorder (rated as 10 percent disabling); (vii) left knee disability (rated as noncompensably disabling) ; (viii) left foot pes planus (rated as noncompensably disabling); (ix) right foot pes planus (rated as noncompensably disabling); (x) gout of the right big toe (rated as noncompensably disabling); and, (xi) bilateral hearing loss (rated as noncompnesably disabling). The combined disability rating for the service-connected disabilities for this period was no more than 60 percent, and there was not basis prior to this date to consider the total 60 percent rating as coming from a common etiology, injury, etc. As such, when the percentage requirements for consideration for an award of a TDIU are not met, entitlement to benefits on an extra-schedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background, including his or her employment and educational history. 38 C.F.R. § 4.16(b) (2012). The Board does not have the authority to assign a TDIU pursuant to 38 C.F.R. § 4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The Veteran therefore does not meet the above-described percentage requirements for consideration for award of TDIU. Failure to satisfy the percentage standards is not, however, an absolute bar to a grant of a TDIU. If the record demonstrates that the Veteran is unemployable by reason of service-connected disabilities but otherwise fails to meet the percentage standards, the case must be submitted to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 4.16(b) (2013). In this case, as was described in the decision above, an October 2007 SSA award determination reflects that the Veteran was awarded SSA benefits from September 23, 2005, based at least in part on service-connected disabilities. In the decision above, the Board found this to be a significant factor in assigning TDIU on a schedular basis. The SSA decision and the accompanying favorable medical evidence raises the possibility of entitlement to TDIU on an extra-schedular basis under C.F.R. § 4.16(b). The authority to assign TDIU ratings pursuant to 38 C.F.R. § 4.16(b) has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service in the first instance. 38 C.F.R. § 4.16(b) (2013). Upon review of this evidence, the Board finds that a referral of the claim to the Director of the VA Compensation and Pension Service for consideration is warranted. This is because the evidence concerning the impact on the Veteran's ability to work is significant for the reasons described above. Accordingly, the case is REMANDED for the following actions: 1. Refer the claim for TDIU, prior to February 26, 2010, under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service for a written decision that explains the reasons and bases for the conclusion reached. 2. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs