Citation Nr: 21003779 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 97-17 462 DATE: January 22, 2021 ORDER Entitlement to a total disability based on individual unemployability is granted. FINDING OF FACT The Veteran’s service connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a total disability based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1956 to July 1960 and the United States Army from August 1960 to June 1963. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in October 2019. The transcript is in the record. The issue was remanded by the Board in February 2020. 1. Entitlement to a total disability based on individual unemployability VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation 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. § 4.16 (a). Total disability will be considered to exist 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). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. 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). The ultimate responsibility for a TDIU determination is a factual rather than a medical question and, as such, is an adjudicative determination properly made by the Board or the RO. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Since entitlement to TDIU was remanded, which was to consider the assignment of TDIU on an extraschedular basis (38 C.F.R. § 4.16 (b)), service connection for obstructive sleep apnea (OSA) has been reinstated at a 50 percent rating. Additionally, the Veteran is currently service connected for median and ulnar neuropathy of the left (nondominant) hand at 40 percent, duodenal ulcer at 20 percent, deviated septum at 10 percent, and scars on the left forearm at 0 percent. Such results in the Veteran having a combined rating of 80 percent. Consequently, the Veteran now meets the schedular requirements for TDIU and this decision will be considering entitlement on a schedular basis, not an extraschedular basis. The Veteran was most recently employed as a long-haul truck driver. He left this employment in 1998. He has consistently stated that he left employment as a truck driver due to pain, loss of sensation, and decreased motor skills of his left upper extremity. He highlighted three accidents he had in the years prior to his retirement which he attributes to the loss of functionality he experiences in his left hand and arm. In the Veteran’s January 2000 application for TDIU, he indicated that he had three years for college. An August 2020 VA examiner opined the Veteran would not be precluded from employment as he is active, able to walk, sit, stand, drive, communicate, read, write, and answer the phone, and lift things. The examiner did not provide any information about the duration the Veteran would be able to perform these activities. Moreover, while it was determined that the Veteran experienced significant fatigue, the examiner provided no explanation as to why the fatigue could not be attributed to the Veteran’s service connected disabilities. Such is particularly troubling as a 30 percent rating is assigned for OSA when there is evidence of hypersomnolence, i.e. excessive sleepiness. These inadequacies limit the probative value of the examiner’s opinion that the Veteran is employable. In January 2018, a VA examiner opined that the Veteran’s left upper extremity disability would limit the Veteran’s fine motor skills, ability to lift heavy things, difficulty with repetitive motions; as such, the Veteran would be precluded from returning to his position as a truck driver. A January 2013 examination of the left upper extremity similarly noted impaired manipulation resulting in functional limitations. The Veteran has attributed his retirement to his left upper extremity disability and his pain, loss of sensation, and loss of fine motor skills. It is again noted that the Veteran complains of significant fatigue, which would certainly have an adverse impact in his previous employment as a truck driver. Considering the Veteran’s education, work history, skill set, time since employment, and resolving doubt in the Veteran’s favor, the Board finds that he is likely precluded by his service connected disabilities from obtaining and maintaining any form of substantially gainful employment. The criteria for TDIU have been met. The Board is deferring assignment of the effective date for the Veteran’s TDIU to the AOJ. The AOJ will have an opportunity to consider, in the first instance, the evidence pertinent to the assignment of the effective date. This will ensure that the effective date issue, if there is one, is properly considered. If the Veteran disagrees with the assigned effective date, he has the right to appeal to the Board. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski 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.