Citation Nr: 21000900 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-06 120 DATE: January 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the evidence of the record reasonably demonstrates that the Veteran’s service-connected disability render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Army from April 1973 to July 1976; and from July 1976 to July 1982. This matter is on appeal from a December 2013 rating decision. The Veteran was afforded a February 2019 hearing before the undersigned Judge. A transcript of this hearing has been associated with the claims record. The Board remanded this appeal in May 2019 for additional development. Total Disability Rating Based on Individual Unemployability (TDIU) VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is 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 above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities 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). 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). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. “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). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib, 733 F.3d at 1354 (citing 38 C.F.R. § 4.16 (a)). The Veteran contends that his service-connected disabilities render him unemployable. The Veteran is currently service connected for asthma evaluated at 60 percent. The Veteran’s combined rating was 60 percent. As the Veteran has a service-connected disability rated at 60 percent, the Veteran meets the threshold schedular requirement for TDIU. 38 C.F.R. § 4.16(a). Review of the medical treatment record shows in December 2004 the Veteran reported that he was unemployed. In an April 2005 social work note, the Veteran reported that he could not work due to a back injury and had been unemployed for two years. In a 2005 Social Security Administration (SSA) assessment, the Veteran claimed that disabilities relating to his left shoulder, neck and back prevented him from working. The Veteran reported a work history of working in labor from 1995 to 1999; and performing odd jobs from 2000 to 2003. The Veteran described his job duties consisted of running equipment; handling, stacking and lifting materials ranging from 25 to 100 pounds. In November 2010, the Veteran stated that his only income was from Social Security disability and it had been granted based upon his back and neck disabilities. In a January 2012 VA general examination, the Veteran reported his asthma had been treated with over the counter medication since his separation until he went to receive VA treatment in 2003. The examiner found the Veteran’s asthma did not impact his ability to work. In a November 2012 VA examination for his asthma, the VA examiner noted the Veteran denied that his asthma interfered with his ability to perform his job and found no occupational impact. The examiner also noted the Veteran’s receipt of Social Security disability and a work history primarily consisting of various manual labor jobs. In a March 2013 application for TDIU, the Veteran asserted that his asthma prevented him from gaining and maintaining meaningful employment. The Veteran reported completing at most a 12th grade education. The Veteran was afforded a December 2013 VA examination for his asthma. The Veteran reported symptoms of intermittent shortness of breath that would arise with moderate exertion. The Veteran stated that he used prescribed inhaled bronchodilators daily. The VA examiner noted the Veteran had a long history of smoking and continued to smoke at this time. The examiner found the Veteran’s respiratory condition impacted his ability to work. The examiner found the Veteran was always required to have his inhaled bronchodilator accessible in the event of experiencing pulmonary symptoms. The examiner stated that with medication use, there were no functional limitations associated with his pulmonary condition. In a February 2014 notice of disagreement (NOD), the Veteran stated that he was unable to walk long distances and had difficulty climbing stairs. The Veteran stated that he was currently on Social Security disability “which means I cannot work at all.” In a February 2016 form 9 statement, the Veteran reiterated that his asthma is the reason he was unemployable. In a June 2016 representative statement, the Veteran’s representative stated that the Veteran has asserted that he was unable to continue working because of residuals from his asthma condition. In February 2017 the Veteran reported that during a recent morning walk he “fell with no warning” or onset of dizziness. The treating provider noted that the Veteran’s partial pressure of oxygen content (PO2) was measured at 88. The Veteran was assigned oxygen therapy. In March 2017 the Veteran was assessed for chronic obstructive pulmonary disease (COPD) and noted to be dependent on oxygen. The treating provider stated the Veteran continue oxygen therapy. In April 2017 the Veteran was noted with bronchial asthma and on nasal oxygen. In an August 2018 psychiatric visit, the Veteran was observed wearing oxygen with a small portable tank. In November 2018 the Veteran reported intermittent episodes of falling and “blacking out” in the past 6 months; the Veteran stated that he was unable to identify what triggered episodes but noted that increasing his oxygen intake reduced the number of episodes. The treating provided assessed the Veteran with asthma and COPD using supplemental oxygen. At the Veteran’s February 2019 hearing, the Veteran testified that his SSA application for disability was granted for a back and shoulder disability; the Veteran acknowledged that his respiratory condition did not impact his employment at the time nor was it filed with his application. The Veteran stated that his symptoms relating to his respiratory conditions worsened in 2008 which lead to his examination and rating decision granting service connection. The Veteran’s representative noted the Veteran was on Social Security disability since a back surgery in 2005; prior work history involved various manual labor jobs; and that the Veteran had previously denied that his asthma interfered with his ability to perform the job. The Veteran reiterated that his highest level of education was graduating from high school. The Veteran testified that he had not tried to get any employment since 2005 because of “my asthma and stuff.” The Veteran stated that he had been on oxygen for the past three years for twenty-four hours a day in additional to using inhalers once or twice a day. The Veteran stated that he needs to wear a tank whenever he goes out and uses a regulator with a long hose while at home. The Veteran described limitations to his physical activity where he would tire or feel weak at times. The Veteran stated his previous jobs included work as a cook, at a gas station, menial jobs, and moving companies; the Veteran stated that his duties mostly involved physical labor. The Veteran was afforded a December 2019 VA examination. The examiner diagnosed the Veteran with asthma and COPD. The Veteran reported symptoms of shortness of breath on minimal exertion and difficulty breathing when exacerbated. The Veteran described that he was unable to perform activities of daily living (ADLs) without assistance and was reliant upon oxygen 100 percent of the time. The examiner found the Veteran’s respiratory conditions impacted his ability to work, noting the Veteran reported a limited ability to perform daily work activities because of becoming short of breath with minimal exertion as well as his constant reliance on oxygen. The examiner next found the Veteran was capable of doing work if he had assistive devices with 100 percent oxygen constant and a cane; the examiner noted that several working environments did not allow use of cane or oxygen. The examiner found the Veteran was not capable of doing arduous or unlimited work because of limited function due to a constant need for oxygen. The examiner found the Veteran was not capable of strenuous, moderate or light work, noting the Veteran was not able to run or carry items for long periods of time as the Veteran would become short of breath with minimal exertion less than 10 yards and constantly on oxygen. The examiner also found the Veteran was not capable of sedentary work, noting the Veteran would become “extremely fatigued with minimal exertion.” The examiner found the Veteran capable of pushing; pulling; bending; twisting; standing; and sitting safely mainly within the constraints of the Veteran’s use of oxygen and a cane. The examiner found the Veteran was not safely capable of lifting or carrying more than 10 pounds due to shortness of breath with minimal exertion, constant use of oxygen, and use of a cane at all times for stability. After review of the evidence and resolving reasonable doubt, the Board finds that that TDIU is warranted for the Veteran’s service-connected disabilities. In addition to meeting the schedular criteria for TDIU, the record shows evidence that the Veteran’s symptoms of his service-connected disability interfered with his ability to obtain and maintain gainful employment. The evidence of record shows the Veteran’s symptoms of his service-connected disability include shortness of breath, fatigue, and intermittent episodes of blacking out or passing out. The Veteran has not worked since 2003 or 2005. A December 2019 VA examiner found the Veteran was not capable of performing strenuous, moderate, light or sedentary work due to shortness of breath with minimal exertion and constant need for oxygen. The Board notes that the Veteran’s previous work history to include primarily physical or manual labor were positions that would involve activities that evidence currently shows the Veteran is either unable to or will have difficulty performing these duties. Although the VA examiner opinion did not specifically state the Veteran was unemployable, they found that these symptoms of his service-connected disability did impact any occupational work involving such activities; either limiting or opining the Veteran would be unable to work or perform job duties that required these motions or activities. Moreover, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As such, considering the record of the Veteran’s symptoms and impairments from his service-connected disability to include findings from VA examinations and testimony, the Board finds that that entitlement to TDIU is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.