Citation Nr: 20043734 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 15-42 082 DATE: June 29, 2020 ORDER For the period prior to March 31, 2014, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. For the period starting March 31, 2014, entitlement to TDIU is granted. FINDINGS OF FACT 1. Prior to March 31, 2014, the Veteran was service connected with multiple disabilities collectively rated at 60 percent. 2. Since March 31, 2014, the Veteran has been service connected with multiple disabilities collectively rated at 80 percent. 3. For the entire appeal period, the Veteran’s service-connected disabilities have precluded him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. For the period prior to March 31, 2014, the criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18 (2019). 2. For the period starting March 31, 2014, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1956 to January 1973 and received an honorable discharge. He received the Air Force Outstanding Unit Award and Air Force Good Conduct Medal. In November 2017, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. TDIU Total disability ratings for compensation based on individual unemployability (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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, failure to meet the schedular requirements for TDIU is not a bar to benefits. All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). 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). Consideration may be given to a veteran’s education, special training, and previous work experience, but not to his age or to the impairments caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran contends that his service-connected post-traumatic stress disorder (PTSD), obstructive sleep apnea, hemorrhoids, tinnitus, sinusitis, status post ganglion removal scar of the right wrist, and bilateral hearing loss prevented him from maintaining substantially gainful employment. Prior to March 31, 2014, the Veteran was only service connected for PTSD, hemorrhoids, tinnitus and sinusitis and did not meet the singular (60 percent) or combined (70 percent with one disability ratable at 40 percent) rating requirement for TDIU. Accordingly, the Veteran’s TDIU claim was referred to the VA Director for Compensation Service for extraschedular consideration as required by the provisions of 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In April 2020, the Director found that the Veteran’s service-connected disabilities did not preclude gainful employment and that entitlement to TDIU on an extraschedular basis had not been established. See April 2020 VA Memo, pp. 1-2. However, the Board is not bound by this determination and shall conduct a de novo review of the claim. Wages, 27 Vet. App. at 238. The Veteran last worked in 2005 when he made bakery equipment and heat exchanges. See September 2013 VA Examination, p. 17. He contends that his PTSD symptoms interfered with his work. See July 2007 VA Examination, p. 2; June 2018 Application for Increased Compensation Based on Unemployability, pp. 1-3. The Veteran’s occupational history consists of work making bakery equipment and heat exchanges and his educational history consists of two years of college. See June 2018 Application for Increased Compensation Based on Unemployability, p. 2. Turning to the impact of the Veteran’s disabilities prior to March 31, 2014, the Veteran’s PTSD was manifested by depressed mood, anxiety, chronic sleep impairment, memory impairment, irritability, disturbances of motivation and mood, and difficulty in establishing and maintaining effective relationships. See November 2017 Hearing Transcript, pp. 4, 7, 10-13; April 2006 Private Treatment Records, pp. 1-3; January 2008 VAMC Other, pp. 14-15; September 2013 VA Examination, pp. 15-20. The Veteran’s hemorrhoids caused a decreased tolerance for long periods of sitting during flares and his sinusitis impacted his ability to work early due to difficulty breathing through the nose in the morning. See September 2013 VA Examination, pp. 7, 15. Affording the Veteran the benefit of the doubt, the Board finds that the impact of these symptoms made it impossible for him to secure and maintain substantially gainful employment prior to March 31, 2014. The Veteran’s PTSD symptoms interfered with his ability to perform the work in his previous role and would likely interfere with his ability to perform work for which he may be qualified based on his education and work history. The Veteran’s hemorrhoids would interfere with his ability to perform work during flares and his sinusitis would impact his ability to work in the morning. Moreover, the Veteran has no additional specialized education, training, or other experience that suggests he may be able to secure gainful employment outside of his past work. Many of the symptoms related to the Veteran’s service-connected disabilities would impact the Veteran’s ability to successfully perform work in most occupational settings. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran was unable to maintain a substantially gainful occupation as a result of his service-connected disabilities, and an award of TDIU on an extraschedular basis is warranted for the period prior to March 31, 2014. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Since March 31, 2014, the Veteran has been service connected for obstructive sleep apnea in addition to the previously mentioned disabilities. The Veteran’s sleep apnea causes daytime sleepiness and difficulty concentrating. See November 2018 VA Examination, p. 1; October 2014 VA Examination, p. 5. The Veteran’s PTSD causes depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; impaired concentration; irritability; suspiciousness; flattened affect; impaired judgment; disturbance of motivation and mood; difficulty in adapting to stressful circumstances; and, difficulty establishing and maintaining effective relationships. See July 2018 VA Examination, pp. 6-7; February 2019 VA Examination, pp. 4-6. The Veteran’s hemorrhoids interfere with his ability to perform heavy physical labor. See November 2018 VA Examination, p. 4. His tinnitus interferes with his ability to focus. See November 2018 VA Examination, p. 6. (Continued on the next page)   The Board finds that the impact of these symptoms makes it impossible for the Veteran to secure and maintain substantially gainful employment for the period starting March 31, 2014. As previously noted, the Veteran’s PTSD symptoms interfere with his ability to perform the work of his previous role and would likely interfere with his ability to perform work for which he may be qualified based on his education and work history. In addition to impaired concentration from his PTSD, the Veteran’s sleep apnea and tinnitus also impact his ability to concentrate. Moreover, the Veteran has no additional specialized education, training, or other experience that suggests he may be able to secure gainful employment outside of his past work. Many of the symptoms related to the Veteran’s service-connected disabilities, including chronic sleep impairment, memory loss and irritability, would impact the Veteran’s ability to successfully perform work in most occupational settings. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to maintain a substantially gainful occupation as a result of his service-connected disabilities, and an award of TDIU is warranted for the period starting March 31, 2014. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, 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.