Citation Nr: A20017618 Decision Date: 11/30/20 Archive Date: 11/30/20 DOCKET NO. 200109-53134 DATE: November 30, 2020 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted from September 7, 2018 to April 29, 2019, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The evidence as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities is, at least, in relative equipoise. 2. The Veteran’s claim for a TDIU was received on September 7, 2018; he has reported that he became too disabled to work in October 2013. 3. The Veteran is in receipt of a combined total (100 percent) schedular rating for his service-connected disabilities, effective April 30, 2019. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of a TDIU from September 7, 2018 to April 29, 2019 have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1968 to September 1970. His decorations include the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. The original rating decision underlying the present appeal was issued in March 2019 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a supplemental claim later that month, which the RO denied in June 2019. He then sought Higher-Level Review of the June 2019 decision by the RO, which issued another denial in August 2019. Thereafter, the Veteran submitted a timely Notice of Disagreement (VA Form 10182), appealing the August 2019 rating decision to the Board of Veterans’ Appeals (Board). He elected Direct Review by a Veterans Law Judge. 38 C.F.R. § 20.202(b)(1). The Board notes that the Veteran is currently in receipt of a total (100 percent) combined schedular rating for his service-connected disabilities from April 30, 2019. Accordingly, his claim for a TDIU from that date forward is moot. See 38 C.F.R. § 4.16(a) (providing that a TDIU can be assigned “where the schedular rating is less than total”). Entitlement to a TDIU prior to April 30, 2019 The Veteran maintains, in essence, that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected heart disability (and related scarring), posttraumatic stress disorder (PTSD), obstructive sleep apnea, diabetes mellitus (type II), peripheral neuropathy of the bilateral extremities, bilateral hearing loss, and tinnitus. He contends that he has been unable to work since October 2013. A TDIU is warranted where the evidence of record shows that a Veteran is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining one 60-percent disability, or one 40-percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In the present case, the Board finds that the Veteran meets the threshold requirements for a schedular award of TDIU. He is currently in receipt of a 60 percent rating for a heart disability; a 50 percent rating for posttraumatic stress disorder (PTSD); a 50 percent rating for obstructive sleep apnea; a 20 percent rating for diabetes mellitus, type II; a 20 percent rating for peripheral neuropathy of the right lower extremity; a 20 percent rating for peripheral neuropathy of the left lower extremity; a 10 percent rating for tinnitus; and noncompensable ratings for bilateral hearing loss and post-operative scarring. His combined rating is 80 percent from May 1, 2018; 90 percent from December 5, 2018; and 100 percent from April 30, 2019. The Board finds, further, that the evidence supports an award of a TDIU. The Veteran has a high school education; he received on-the-job training on how to read blueprints; and he was self-employed for a few years before working in quality control at a manufacturing company. He has not had any substantive work experience since approximately October 2013. As of September 5, 2018, when the Veteran filed his claim for TDIU, he was service connected for the heart disability, PTSD, tinnitus, hearing loss, and post-operative scarring. Subsequently, he was granted service connection for obstructive sleep apnea, effective December 5, 2018; diabetes mellitus, effective March 28, 2019; and peripheral neuropathy of the lower extremities, effective April 30, 2019. The Veteran’s heart disability has presented varying degrees of functional impact over time. According to a May 2018 VA examination report, he was suffering shortness of breath, lack of endurance, and fatigue at that time. Dyspnea and fatigue were noted at METs levels between 3 and 5. According to a September 2018 VA examination, the Veteran’s heart disability continued to cause functional limitations. He reported that he was unable to walk more than a block, had reduced exercise tolerance, got winded with shortness of breath, and suffered fatigue. Dyspnea and fatigue were again noted at METs levels between 3 and 5. The findings of February 2015 VA PTSD also suggest the presence of significant psychiatric symptoms. Specifically, the Veteran’s psychiatric disability was noted to be manifested by avoidance of interpersonal interactions; difficulty establishing close work relationships; irritability; low frustration tolerance; difficulty concentrating; low self-confidence; low mood; apathy; low motivation; intrusive thoughts; chronic tiredness; reduced activity level; reported memory problems; lack of close friends; avoidance of social and public situations; difficulty tolerating crowds; feelings of detachment and alienation; decreased interest in sex; difficulty experiencing positive emotions; recurring and intrusive thoughts; physiological reactivity and avoidance of thinking about, talking about, or being near reminders of his PTSD stressors. Additional symptoms included memory difficulty; strong negative feelings and beliefs; reckless behavior; hypervigilance; and exaggerated startle reactions. He regularly detached from reality through alcohol use and demonstrated the inability to establish lasting social and interpersonal relationships. With regard to hearing loss, as noted, the Veteran has a non-compensable rating. However, the record indicates that he suffers from regular tinnitus symptoms and requires use of a hearing aid. More recently, effective from December 5, 2018, the record reflects that the Veteran’s obstructive sleep apnea causes him to experience daytime fatigue and sleepiness. Effective from March 28, 2019, the medical evidence reveals that his peripheral neuropathy causes him significant numbness and tingling in his bilateral lower extremities. He has difficulty standing for more than an hour; he is unable to ambulate more than 50 feet; and he suffers from pain that is moderate to severe in his feet and legs. The final determination with respect to a Veteran’s entitlement to a TDIU is an adjudicatory, and not a medical, function. The findings reflected throughout the medical reports are highly probative. Under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran’s description of the functional effects of his service-connected disabilities, as they relate to his level of education and prior occupational experience, the Board is persuaded that he has been unable to secure or follow a substantially gainful occupation as a result of service-connected disability for the entire period on appeal. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran has reported that he became too disabled to work in October 2013, and the record shows that he filed his claim for a TDIU on September 7, 2018. Because his unemployability arose more than a year prior to the date of receipt of his claim, and because, as previously noted, he is already in receipt of a combined total (100) schedular rating from April 30, 2019, the TDIU is granted for the period from September 7, 2018 to April 29, 2019. See 38 U.S.C. § 5110, 38 C.F.R. § 3.400. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, Associate 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.