Citation Nr: 18145065 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 13-19 044 DATE: October 26, 2018 ORDER The termination of a 30 percent rating for restrictive lung disease, effective from August 27, 2007, was proper, and the appeal is denied. Entitlement to an initial rating in excess of 50 percent for service-connected sleep apnea is denied. For the period from September 6, 2006 to January 23, 2013, a disability rating of 60 percent, but no higher, for hypothyroidism, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period from September 6, 2006 to January 23, 2013 is granted. FINDINGS OF FACT 1. The Veteran’s predominant respiratory condition as of August 27, 2007 was service-connected obstructive sleep apnea. 2. Throughout the appeal period, the Veteran’s sleep apnea does not manifest in chronic respiratory failure with carbon dioxide retention, cor pulmonale, or require a tracheostomy. 3. For the period from September 6, 2006 to January 23, 2013, the Veteran’s hypothyroidism is manifested by fatigability, muscular weakness, mental disturbance, and weight gain, but not by cold intolerance, cardiovascular involvement, bradycardia, and sleepiness. 4. For the period from September 6, 2006 to January 23, 2013, the Veteran’s service-connected disabilities render him incapable of securing or following a substantially gainful occupation consistent with his educational background and work experience. CONCLUSIONS OF LAW 1. The termination of the 30 percent rating for restrictive lung disease, effective from August 27, 2007, was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.96 (a). 2. The criteria for entitlement to an initial rating in excess of 50 percent for sleep apnea have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.6, 4.7, 4.97, Diagnostic Code 6847. 3. For the period from September 6, 2006 to January 23, 2013, the criteria for a disability rating of 60 percent, but no higher, for hypothyroidism have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code 7903. 4. The criteria for entitlement to a TDIU for the period from September 6, 2006 to January 23, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.2, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1969 to July 2002. In July 2018, the Veteran testified before the undersigned at a video conference hearing. A May 2016 Board decision granted the Veteran’s claim for an increased rating for hypothyroidism, assigning a 60 percent rating prior to June 23, 2013, and remanded the following issues: entitlement to an increased rating for sleep apnea, propriety of the termination of a 30 percent rating for restrictive lung disease, and entitlement to a TDIU. In January 2018, the Board issued a decision vacating the May 2016 Board decision and remand, finding that the Veteran’s hearing request was not received at the Board prior to its adjudication of the claim. These claims have now been returned to the Board. Propriety of Termination of Rating for Restrictive Lung Disease The RO originally granted service connection for restrictive lung disease, assigning an initial 10 percent evaluation in August 2002. A 30 percent rating was effective from January 3, 2005 to August 27, 2007, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6699-6602. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In a December 2009 rating decision, the RO granted service connection for sleep apnea under Diagnostic Code 6847 and assigned a 50 percent rating from August 27, 2007, which, in effect, terminated the 30 percent rating for restrictive lung disease, effective August 27, 2007. The Veteran contends that the termination of the 30 percent rating for restrictive lung disease was improper. The Board notes that the Veteran also seeks an increased rating for his service-connected sleep apnea, which is addressed below. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Respiratory disorders are evaluated under Diagnostic Codes 6600 through 6817 and 6822 through 6847. 38 C.F.R. § 4.96 (a). Ratings that fall under these diagnostic codes will not be combined with each other. Id. Rather, a single rating will be assigned under the diagnostic code that reflects the predominant disability, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. Id. Additionally, 38 C.F.R. § 4.14 prohibits separate disability ratings for conditions with overlapping symptomatology. Turning to the evidence of record, an October 2003 VA examination noted that the Veteran’s diagnosis had changed from restrictive lung disease to obstructive lung disease. A February 2005 VA examination noted a changed diagnosis of obstructive lung disease with evidence of granulomatous disease. There were no complications secondary to the pulmonary disease. An August 2007 private sleep study revealed a diagnosis of obstructive sleep apnea. The RO then granted service connection for sleep apnea and assigned a 50 percent rating from August 27, 2007, the date of the sleep study. The Board finds that termination of the 30 percent rating for restrictive lung disease was proper. The Veteran was assigned a higher 50 percent rating for his sleep apnea under Diagnostic Code 6847, and the 30 percent rating for restrictive lung disease under Diagnostic Code 6699-6602 was effectively merged with the rating for sleep apnea. Under 38 C.F.R. § 4.96 (a), the ratings for restrictive lung disease and obstructive sleep apnea cannot be combined. As the Veteran’s obstructive sleep apnea was the predominant respiratory disability as of August 27, 2007, termination of the rating for restrictive lung disease was warranted as of that date. As set forth above, combining ratings for respiratory disorders evaluated under Diagnostic Codes 6600 through 6817 and 6822 through 6847 is precluded by 38 C.F.R. § 4.96 (a). As such, the Board finds that termination of the 30 percent rating for restrictive lung disease effective August 27, 2007 was proper and the Veteran’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Sleep Apnea The Veteran seeks a higher initial rating for his service-connected sleep apnea. A 50 percent rating is effective from August 27, 2007, under 38 C.F.R. § 4.97, Diagnostic Code 6847. For the reasons that follow, the Board finds that an increased rating is not warranted. Under Diagnostic Code 6847, a 50 percent evaluation is warranted for sleep apnea requiring use of a breathing assistance device such as a CPAP machine. A higher 100 percent rating is warranted when there is chronic respiratory failure with carbon dioxide retention, cor pulmonale, or when the condition requires a tracheostomy. The Board finds that the criteria for the higher 100 percent rating have not been met. The Veteran’s sleep apnea has not manifested in chronic respiratory failure with carbon dioxide retention, cor pulmonale, and does not require a tracheostomy. The Board notes that the Veteran was hospitalized in December 2013 for encephalopathy and atrial flutter. A tracheostomy was placed. The Veteran was noted to be withdrawing from alcohol. The Veteran was also noted to have aspiration pneumonia. Additionally, the attending physician provided an impression of encephalopathy that was likely multifactorial and possibly due to an anoxic brain injury, infection, or oversedation. In a July 2016 VA opinion, the examiner noted that the Veteran had a history of respiratory failure in connection with his December 2013 hospitalization. However, the examiner opined that this anoxic respiratory event was not related to his service-connected respiratory condition. The examiner further noted the Veteran had a scar from the tracheostomy, which he determined was related to the December 2013 acute respiratory failure, but not related to his service-connected lung condition or COPD. While the Veteran has a history of respiratory failure and tracheostomy, there is no medical evidence demonstrating that these conditions are related to his service-connected sleep apnea. Instead, the Veteran’s symptoms are more consistent with a 50 percent rating for obstructive sleep apnea, as he has been noted to require a CPAP machine and he experiences persistent daytime hypersomnolence. Accordingly, there is no basis to award a 100 percent evaluation under Diagnostic Code 6847. In sum, the competent medical evidence of record is clear that the Veteran’s obstructive sleep apnea is not manifested by chronic respiratory failure or cor pulmonale, and has not been treated with a tracheostomy, and therefore the criteria for a higher rating for obstructive sleep apnea have not been met. In light of the Veteran’s diagnosis of COPD, the Board also whether considers evaluation of the Veteran’s respiratory condition under Diagnostic Code 6604 would result in a higher disability rating. See 38 C.F.R. § 4.97. Under Diagnostic Code 6604 for COPD, a 60 percent evaluation is assigned for Forced expiratory volume in one second (FEV-1) of 40- to 55-percent predicted, or; Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 40 to 55 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent evaluation is assigned for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6604. At no point during the appeal period has the Veteran’s respiratory condition manifested in FEV-1 of 55 percent predicted or less, FEV-1/FVC of 55 percent or less, or DLCO (SB) of 55 percent predicted or less. Additionally, there is no evidence of maximum oxygen consumption of less than 20 ml/kg/min with cardiorespiratory limit. As set forth above, the Veteran’s respiratory condition is not manifested by cor pulmonale, and there is no evidence that the Veteran’s COPD resulted in right ventricular hypertrophy, pulmonary hypertension, or acute respiratory failure, or required outpatient oxygen therapy. Accordingly, a higher rating under DC 6604 is not available. See 38 C.F.R. § 4.97, DC 6604. 2. Hypothyroidism The Veteran seeks a disability rating in excess of 30 percent for hypothyroidism, prior to January 23, 2013. A 100 percent evaluation is currently effective from January 23, 2013, the date of a VA examination report pertaining to the Veteran’s hypothyroidism. As such, this analysis will focus on the period from September 6, 2006 to January 23, 2013. The Veteran’s hypothyroidism is evaluated under Diagnostic Code 7903. See 38 C.F.R. § 4.119 (2016). The Board observes that Diagnostic Code 7903 was amended, effective December 10, 2017, (see Fed. Reg., 82 FR 50802 (November 2, 2017)). However, the focus of the increased rating claim is prior to January 23, 2013. The amendments to the regulations at issue in the present case cannot be construed to have retroactive effect unless their language requires this result. Kuzma v. Principi, 341 F.3d 1327, 1328-1329 (2003) (citing Landgraf v. USI Film Prods., 511 U.S. 244 (1994)). Here, there is no such language in the amendments, and as such, the Board will continue to apply the former rating criteria. The Veteran’s service-connected hypothyroidism is currently rated as 30 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7903. Under Diagnostic Code 7903, a 10 percent rating is assigned when hypothyroidism is manifested by fatigability, or continuous medication is required for control. A 30 percent rating requires fatigability, constipation, and mental sluggishness. A 60 percent rating requires muscular weakness, mental disturbance, and weight gain. A 100 percent rating requires cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 38 C.F.R. § 4.119, Diagnostic Code 7903 (2016). The United States Court of Appeals for Veterans Claims (Court) has addressed the specific application of the rating criteria for Diagnostic Code 7903. The Court found that all of the symptoms listed for a particular disability rating were not required to be demonstrated in order to establish entitlement to a higher disability rating. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009). The Court further noted that symptoms that meet some of the rating criteria should be considered in light of 38 C.F.R. § 4.7 and resolved based on the evidence of record. The Court also stated that the rating criteria for Diagnostic Code 7903 are not successive. Tatum, 23 Vet. App. at 155. A claimant could potentially establish all of the criteria required for a 30 percent or 60 percent rating without establishing any of the criteria for a lesser disability rating. Id. at 156. Turning to the evidence of record, the Veteran indicated in a notice of disagreement received in September 2006 that he sought a 60 percent rating. In a January 2007 statement, the Veteran claimed that a 60 percent evaluation was warranted, as he had gained 40 pounds since his discharge in 2002 and he had cold intolerance. VA treatment records indicate the Veteran was prescribed Synthroid for his thyroid condition. Treatment records also show a fairly consistent weight of approximately 215 pounds, as noted by VA clinical records dated October 2005, January 2006, and February 2007, with weight ranging from 215 to 219 pounds. The Veteran received a VA examination in February 2007 and reported a history of fatigability, sleepiness, emotional instability, depression, slowing of thought, poor memory, difficulty breathing and swallowing, stomach pain, weight gain, and intolerance of cold weather. He stated that the condition resulted in heart problems and hypertension. The Veteran was taking Synthroid. He weighed 218 pounds and his pulse was 117. On objective examination, the Veteran was in no apparent distress and he appeared well-nourished. There was no thyroid enlargement or any ocular signs of hypothyroidism. Examination of the ears, nose, throat, lungs, and abdomen was normal. There were no hand tremors, generalized muscle weakness, or generalized muscle wasting. The assessment was hypothyroidism, controlled on thyroid replacement, and the examiner noted objectively normal thyroid tests. VA records following the February 2007 VA examination reflect continued treatment for hypothyroidism and the Veteran was consistently prescribed Synthroid. In his August 2007 notice of disagreement, the Veteran asserted that he had all but one symptom listed for the assignment of both the 60 and 100 percent rating criteria. He stated that he had cold intolerance, sleepiness, mental disturbance, “brachycardia,” and muscular weakness. A November 2008 VA treatment note indicated elevated TSH (thyroid-stimulating hormone) and the Veteran reported weight gain. He was in no apparent distress. He weighed 248 pounds, 30 pounds more than on VA examination in February 2007. The Veteran’s Synthroid was increased at this time. The Veteran was enrolled in the VA MOVE weight loss program in January 2009 and he weighed 241.5 pounds at that time. The Veteran received VA contract examination in August 2010 and complained of fatigability, sleepiness, tremor, emotional instability, depression, slowing of thought, poor memory and dry skin. He had no difficulty breathing, swallowing, or tolerating hot or cold weather. The Veteran reported that he gained 65 pounds in the past two years. He had no heart or gastrointestinal complications. The Veteran was taking Synthroid, and the examiner noted that the hypothyroidism may not yet be controlled. The Veteran weighed 241 pounds and his pulse was 65 beats per minute. No thyroid enlargement was present on examination. Examination of the extremities was normal, with no hand tremor. The Veteran did not exhibit any signs of malaise or dry skin. A thyroid panel showed elevated TSH, and the examiner noted that the condition was productive of mental problems, weight gain, and fatigue. On VA examination in January 2013, it was noted that continuous medication was required to control the Veteran’s hypothyroidism. The examiner noted that the Veteran had fatigability, constipation, mental sluggishness, mental disturbance (slowing of thought, dementia, depression), muscle weakness, weight gain (170 to 254 pounds), sleepiness, and brachycardia. The examiner also attributed muscle spasms to a hypoparathyroid condition. There were no skin problems. The Veteran’s heart rate was 68 beats per minute. Based upon this examination, the RO assigned a 100 percent rating from January 23, 2013. After consideration of the lay and medical evidence of record, the Board resolves reasonable doubt in favor of the Veteran and finds that a rating of 60 percent is appropriate for the period from September 6, 2006 to January 23, 2013. Since the inception of the claim, numerous VA examinations have noted complaints and documentation of weight gain. The Veteran subjectively, but competently, reported mental disturbance (emotional instability). Additionally, the August 2010 VA examination reflected a 30-pound weight gain since the February 2007 VA examination, and the VA examiner attributed fatigue, weight gain, and “mental problems” to the thyroid condition. As such, the Board finds that the Veteran’s symptoms are of the severity and frequency contemplated by a 60 percent disability rating, for muscular weakness, mental disturbance, and weight gain. Hart, supra. Thus, a 60 percent rating is warranted from September 6, 2006 to January 23, 2013. However, the Board finds that the lay and medical evidence of record does not support a 100 percent evaluation prior to January 23, 2013. The Board acknowledges that the Veteran contends that he has most of the symptoms and manifestations contemplated in the 100 percent criteria, particularly cold intolerance, muscle weakness, cardiovascular involvement, mental disturbance, bradycardia and sleepiness. However, the Veteran did not objectively exhibit these symptoms until the VA examination on January 23, 2013. During the February 2007 VA examination, he showed no muscle wasting or weakness, and no cardiovascular complications were noted. While VA treatment records reflect weight gain in 2008, as well as mental disturbance, those symptoms are contemplated by the 60 percent rating criteria. Bradycardia (brachycardia) was not shown until January 2013, despite an objective heart rate of 68 beats per minute. See 38 C.F.R. § 4.119, Diagnostic Code 7903 (2016) (defining bradycardia as pulse less than 60 beats per minute). Although the Veteran also reported subjective complaints of cold intolerance, VA examinations prior to January 2013 did not objectively indicate this symptom. Fatigability is contemplated by the 10 and 30 percent ratings and this has been objectively shown in the Veteran. The Veteran also complained of sleepiness. However, as with the subjective reports of cold intolerance, sleepiness, which differs from fatigability, was not objectively indicated until the January 23, 2013 VA examination. Cardiovascular involvement has not been assessed in connection with the thyroid condition. As such, the Board finds that the weight of the lay and medical evidence demonstrates that there was an absence of cold intolerance, cardiovascular involvement, bradycardia, and sleepiness from September 6, 2006 to January 23, 2013, and thus a 100 percent evaluation prior to January 23, 2013 is not warranted. See Hart, supra. The Board has considered all of the symptoms reported by the Veteran and acknowledges that the symptoms listed in Diagnostic Code 7903 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In reaching this decision, the Board has considered the Veteran’s lay statements in support of his claim. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating assigned. Extraschedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence “presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate.” See id. at 115. In order to determine whether a disability is “exceptional or unusual,” there “must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. “[I]f the [rating] criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required.” Id. The Board finds that there is no medical evidence of an exceptional or unusual clinical picture due to the Veteran’s thyroid condition as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1). In the instant case, the Veteran’s symptoms of muscle weakness, mental disturbance, and weight gain are precisely the type of symptoms that are encompassed by the rating criteria already assigned under by Diagnostic Code 7903. There is no evidence of any further impairment outside of the norm for this disorder or which would not be contemplated by the rating criteria. Accordingly, the Board finds that the disability picture is not exceptional and the available schedular evaluation is adequate to rate the manifestations of the disability. 3. TDIU The Veteran contends that he is unable to maintain gainful employment as the result of 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 be rated totally disabled. 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.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). A TDIU may be assigned where the schedular rating is less than total when the claimant is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided 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, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a)(2). For the Veteran to prevail on a claim for a TDIU, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether the Veteran is entitled to a TDIU, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation due to service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Thus, if a Veteran fails to meet the schedular requirements above, an extraschedular rating is for consideration where the Veteran is nonetheless unemployable due to service connected disability. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board may not grant a TDIU pursuant to 38 C.F.R. § 4.16 (b) in the first instance. Rather, the matter must be referred to the Director of Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran’s claim for a TDIU was received on February 8, 2010. However, the Veteran’s claim for TDIU was part and parcel of the September 2006 claim for an increased rating for hypothyroidism. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that a 100 percent evaluation is currently effective from January 23, 2013 for hypothyroidism. As such, this analysis will focus on the period from September 6, 2006 to January 23, 2013, with consideration of the Board’s decision herein granting a 60 percent rating for hypothyroidism from September 6, 2006. For the reasons that follow, the Board finds that the Veteran’s service-connected disabilities prevent him from being able to maintain gainful employment from September 6, 2006 to January 23, 2013. During this period, the Veteran is service-connected for the following: hypothyroidism, rated as 60 percent disabling since September 6, 2006; restrictive lung disease, rated as 30 percent disabling prior to August 27, 2007; sleep apnea rated as 50 percent disabling since August 27, 2007; depression, rated as 50 percent disabling from March 30, 2011; benign prostatic hypertrophy (BPH), rated as 40 percent disabling from January 3, 2005; degenerative joint disease of the dorsal spine, rated as 10 percent disabling since August 1, 2002; degenerative joint disease of the right ankle, rated as 10 percent disabling since August 1, 2002; residuals of right thumb injury, rated as 10 percent disabling since August 1, 2002; left foot plantar fasciitis, rated as 10 percent disabling since August 1, 2002; tinnitus, rated as 10 percent disabling since August 1, 2002; deviated nasal septum, rated as 10 percent disabling since August 1, 2002; hypertension, rated as 10 percent disabling since August 1, 2002; left-sided tongue numbness with decreased focal articulation, rated as 10 percent disabling since August 1, 2002; allergic rhinitis, rated as 10 percent disabling since March 30, 2011; residuals of left wrist fracture, rated as noncompensable since August 1, 2002; fracture of right little finger, rated as noncompensable since August 1, 2002; right eye choroidal nevus, rated as noncompensable since August 1, 2002; right lung coin lesion, rated as noncompensable since August 1, 2002; residuals of left inguinal hernia repair, rated as noncompensable since August 1, 2002; sinusitis, rated as noncompensable since March 30, 2011; and erectile dysfunction, rated as noncompensable since March 30, 2011. The combined disability rating is 90 percent from September 6, 2006. Thus, the Veteran has met the threshold disability percentage requirements of 38 C.F.R. § 4.16 (a) for the entire appeal period under consideration. The Board will not reproduce the medical evidence of record in its entirety in this section. Instead, this analysis will only focus on the evidence that pertains specifically to employment. The evidence shows that the Veteran last worked in July 2002, when he separated from the military. The Veteran has stated that he worked as a computer programmer in service, and later obtained his GED and bachelor’s degree. A June 2009 VA examiner noted that the Veteran’s deviated septum and tongue numbness resulted in drooling and slurred speech. The Veteran reported difficulty sleeping and breathing out of his nose, and stated that his tongue condition interfered with eating and talking. In December 2009, the Veteran’s deviated septum was noted to cause two non-incapacitating episodes per year, with headaches. The examiner noted that the Veteran was unemployed and the effect of his sleep apnea on his daily activities was not limited. In an August 2010 VA examination, the Veteran reported fatigue associated with his hypothyroidism. The examiner also noted that that the Veteran’s obstructive sleep apnea resulted in chronic fatigue and somnolence. In addition, his BPH caused him to urinate every two hours during the day and night. During an August 2011 VA mental disorders examination, the Veteran was assigned a GAF score of 60 and his depression was noted to result in excessive sleeping, irritability, and low energy. The Veteran reported that these symptoms created difficulty in getting along with others, and he felt fatigued apart from his sleep apnea symptoms. The examiner opined that the Veteran’s significant depression and fatigue impeded his ability to maintain employment and limited the type of employment he could hold. It was further noted that he was not incapacitated from all types of employment. His occupational and social impairment was characterized by occasional decrease in work efficiency and intermittent ability to perform occupational tasks. A January 2013 VA examiner determined that the Veteran’s restrictive lung disease, sleep apnea, and hypothyroidism did not impact his ability to work. In a July 2018 Board hearing, the Veteran testified that his respiratory conditions interrupted his functioning in that he would fall asleep during meetings. He further stated that the medications for his respiratory conditions made him sleepy. The Veteran indicated that although he has marketable skills due to his experience as an information systems and computer technician, he was still unable to work due to difficulty staying awake. The Board finds that the evidence is at least in relative equipoise that a TDIU is warranted for the period from September 6, 2006 to January 23, 2013. While each of the above limitations considered individually may not preclude substantial gainful employment, it is reasonable to conclude that the combination of impairments would have a significant impact on the Veteran’s ability to maintain employment. In particular, the Board notes that in addition to his respiratory conditions, the Veteran’s hypothyroidism and depression also cause significant daily fatigue, which could reasonably cause difficulty coping with the demands of a work environment. Moreover, the Veteran’s frequent urination associated with his BPH would make it extremely difficult to maintain a regular work schedule. In addition, the Veteran’s deviated septum and tongue condition interfered with his speech, which would impede his ability to communicate in a work environment. The Board therefore finds that there is adequate evidence indicating that the Veteran’s service-connected disabilities prevent him from being able to maintain gainful employment. The Board acknowledges that VA examiners came to different medical opinions regarding the Veteran’s occupational limitations. However, the doctrine of reasonable doubt must be resolved in the Veteran’s favor when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, and the Board will resolve this doubt in the Veteran’s favor regarding the question of whether his service-connected disabilities prevent him from being able to maintain gainful employment. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding...benefits.”). Hence, affording the Veteran the benefit of the doubt, entitlement to a TDIU is warranted from September 6, 2006 to January 23, 2013. See 38 U.S.C. § 5107(b). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel