Citation Nr: 21004004 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 19-18 908 DATE: January 25, 2021 ORDER A total disability rating based upon individual unemployability (TDIU) due to the Veteran’s service-connected disabilities is granted. THE VETERAN’S CONTENTIONS The Veteran contends that his service-connected sleep apnea with asthma prevents him from securing or following any substantially gainful occupation. See May 2018 Application for Increased Compensation Based on Unemployability; December 2018 notice of disagreement (NOD); June 2019 VA Form 9. He reported that he last worked on June 30, 2017 and became too disabled to work at that time. His last position was as a postal service distribution clerk at the post office. See May 2018 Application for Increased Compensation Based on Unemployability. FINDING OF FACT It is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for assignment of TDIU due to the Veteran’s service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from August 1978 to July 1981 and September 1991 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a) due to his service-connected disabilities. During the appeal period, service connection has been in effect for obstructive sleep apnea with bronchial asthma, rated 50 percent disabling; unspecified depressive disorder, rated 30 percent disabling; chronic sinusitis, rated 30 percent disabling; a temporomandibular joint condition, rated 20 percent disabling; pharyngitis, rated 10 percent disabling; tinnitus, rated 10 percent disabling; right ankle sprain, rated 10 percent disabling; tenosynovitis, rated 10 percent disabling; allergic rhinitis, rated as noncompensably disabling; and dermatophytosis, rated as noncompensably disabling. The Veteran’s combined rating is 80 percent from March 8, 2018 and 90 percent from March 8, 2018. The evidence shows that the Veteran’s service-connected conditions prevent him from securing or following substantially gainful employment. The Veteran retired from the post office in June 2017. See July 2018 response to request for employment information in connection with claim for disability benefits. The Veteran’s wife stated that in the Veteran’s civilian job at the US Postal Service, he had to relocate due to his asthmatic health condition and that he had to take advantage of an early retirement. See October 2018 statement. The Veteran reported that his service-connected left hand condition impacted his ability to work as he is left hand dominant and his work required grabbing, lifting, pushing, pulling, and repetitive left hand motion that exacerbated his condition. See January 2019 VA examination. The medical evidence also shows that, due to the Veteran’s service-connected asthma and allergic rhinitis also claimed as sinusitis, the Veteran must avoid environmental pollution exposure and respiratory irritants. See August 2017 VA examination; March 2018 Disability Benefits Questionnaire (DBQ); October 2018 VA examination. At an April 2019 VA examination, the Veteran reported that, while at the postal service, he worked in distribution and he could not work due to his legs and hands. He stated that they switched him to a position inside due to his hand condition, but he could not remember his route and had to retire due to his physical conditions. He indicated that problems with depression and noncompliance with medication caused him to make mistakes. See April 2019 DBQ. The April 2019 VA examiner noted that the Veteran was service connected for limitation of motion of the index and long finger, limited motion of the ankle, sleep apnea syndrome, chronic laryngitis, rhinitis, and tinnitus, and that the Veteran was forced to separate from his former employment at the postal service because of these disabling physical conditions. Further, a May 2019 VA examiner noted that the Veteran’s service-connected sleep apnea resulted in less sleep and rest and excess daytime sleepiness rendered him unable to maintain a specific schedule at any substantially gainful employment. The examiner also noted that the Veteran’s service-connected tinnitus interfered with his former employment at the postal service as it caused interference with adequate language discrimination. He stated that the Veteran’s service-connected allergic and vasomotor rhinitis, laryngitis, chronic and limited motion of the jaw also could interfere with speech production and adequate breathing at work and, thus, effect his performance. Additionally, he noted that the Veteran’s service-connected dermatophytosis would also cause burning and itching at work. In a September 2019 Mental Disorders DBQ, the examiner determined there was total occupational and social impairment. The Social Security Administration (SSA) determined that the Veteran was disabled effective June 30, 2017 due to other and unspecified arthropathies and depressive, bipolar disorders. The Veteran also submitted a March 2019 letter from the United Stated Office of Personnel Management which states that he was found disabled from his position as a Sales and Services Distribution Associate due to major depressive disorder and carpal tunnel syndrome. While service connection is not in effect for carpal tunnel syndrome; service connection is in effect for unspecified depressive disorder. In light of the Veteran’s contentions and the foregoing evidence in support of his claim, and resolving doubt in the Veteran’s favor as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the Board finds that the Veteran’s service-connected conditions prevent him from securing or following substantially gainful employment. Accordingly, entitlement to a TDIU is warranted. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, 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.