Citation Nr: 21071023 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 19-20 239 DATE: November 29, 2021 ORDER From October 7, 2014, entitlement to a total disability rating based on individual unemployability (TDIU) on a schedular basis is granted. From January 21, 2010, entitlement to TDIU on an extraschedular basis is granted. REMANDED Entitlement to service connection for sleep apnea, to include as due to service-connected disabilities, is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, from October 7, 2014, his service-connected disabilities preclude him from securing and maintaining all forms of substantially gainful employment on a schedular basis. 2. Affording the Veteran the benefit of the doubt, from January 21, 2010, his service-connected disabilities preclude him from securing and maintaining all forms of substantially gainful employment on an extraschedular basis. CONCLUSIONS OF LAW 1. From October 7, 2014, the criteria have been met for a TDIU rating on a schedular basis. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19. 2. From January 21, 2010, the criteria have been met for a TDIU rating on an extraschedular basis. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to February 1985 and from September 1987 to July 1989, with additional active duty for training from July 7, 1986 to July 22, 1987 and from June 27, 1998 to July 11, 1998, and with a period of inactive duty for training from August 14, 1984 to February 21, 1985. This case comes to the Board of Veterans' Appeals (Board) on appeal from July 2010 and March 2012 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2011 and October 2013, the Veteran disagreed with these rating decisions. This case was previously before the Board in March 2017 and March 2021 when it was remanded for additional development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). During the period of the appeal, in a June 2021 rating decision, the RO granted service connection for gastroesophageal reflux disease (GERD). Therefore, this claim for service connection has been resolved and is no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). TDIU Legal Criteria 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.34; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. 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. For the above purpose of 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. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added). 1. From October 7, 2014, entitlement to a TDIU on a schedular basis is granted. 2. From January 21, 2010, entitlement to an extraschedular TDIU on an extraschedular basis is granted. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Factual Background The Veteran contends that his service-connected disabilities precluded him from securing and maintaining all forms of substantially gainful employment prior to September 8, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16. Entitlement to a Schedular TDIU Prior to September 8, 2015 In a May 2019 rating decision, the RO granted the Veteran a TDIU rating effective September 8, 2015. Since that rating decision, in a June 2019 rating decision, the RO granted an earlier effective date for the Veteran's service-connected Migraines at 30 percent back to October 7, 2014, granted service connection for Tinnitus at 10 percent effective November 4, 2014, and hearing loss at a noncompensable level effective September 24, 2014. In a June 2021 rating decision, the RO granted service connection for GERD at 10 percent, effective February 27, 2017. The Board notes that the Veteran is currently service-connected for major depressive disorder (MDD), right side radiculopathy, left side radiculopathy, migraines, degenerative disc disease (DDD) of the cervical spine, hypertension, GERD, tinnitus, scar on the neck, and hearing loss. See most recent June 2021 Rating Decision Codesheet. At the time the Veteran was granted TDIU on September 8, 2015, he had a combined rating of 90 percent. However, due to the Veteran being granted service connection for other disabilities after he was granted entitlement to a TDIU, he was also rated 70 percent effective October 7, 2014. On October 7, 2014, the Veteran was service-connected for MDD at 30 percent, migraines at 30 percent, DDD cervical spine at 20 percent, hypertension at 10 percent, and bilateral hearing loss at a noncompensable (0 percent) rating. See June 2021 Codesheet. Because the Veteran's MDD and migraines were associated with his cervical spine, from October 7, 2014, the Veteran meets the schedular criteria for a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In a March 2009 private opinion, the Veteran's physician wrote that the Veteran was limited to lifting 10 pounds frequently and up to 20 pounds occasionally, sitting 3 hours intermittently per workday, walking and standing two to three hours intermittently per workday, occasional climbing, twisting, bending, and stooping, occasional reaching above his shoulder level, occasional pushing and pulling, and never operating heavy machinery. In a January 2010 VA examination report, the examiner noted that the Veteran's cervical disability would have no significant effect on his occupation. In a subsequent January 2010 VA examination report, the examiner noted that the Veteran was unemployed but not retired. The Veteran had been out of work for less than one year. The reason for his unemployment was that he had lost his ex-wife and was planning to go to law school. The Veteran had additional responsibilities with his children. In a January 2011 VA examination report, the examiner noted that the Veteran's hypertension would have no effect on his occupation. The examiner reported that the Veteran worked as a power plant operator. The Veteran stated that he was retired because of his neck injury. In an August 2011 VA examination report, the examiner noted that the Veteran's neck disability would impact his ability to work. This was characterized as the Veteran would have pain lifting overhead and had difficulty rotating his neck. The examiner reported that the Veteran's scar on his neck would not cause limitation of function. In a March 2012 VA examination report, the examiner noted that the Veteran's back disability would have no functional impact on his ability to work. Additionally, the examiner reported that the Veteran's neck disability had no functional impact on the Veteran's ability to work. In a June 2014 VA examination report, the examiner noted that the Veteran's neck disability would impact his ability to work. This was characterized as the Veteran had pain with tingling in his arms when he lifted over his head. The Veteran had difficulty in stooping and crawling. In a March 2015 VA examination report, the examiner noted "not applicable," for whether the Veteran's migraines would impact his ability to work. The examiner noted that the Veteran's peripheral nerves impact his ability to work, in that he had numbness and tingling in his hands. Analysis While there is no definitive opinion stating that the Veteran's service-connected disabilities prevented him from securing and maintaining gainful employment prior to September 8, 2015, from October 7, 2014, he met the schedular criteria for TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Affording the Veteran the benefit of the doubt, and based on the foregoing evidence of the Veteran's service-connected disabilities, the Board finds that from October 7, 2014, the Veteran's service-connected disabilities prevented him from securing and maintaining gainful employment consistent with his education and employment background. 38 C.F.R. §§ 3.102, 3.303, 4.16(a). From October 7, 2014, a TDIU rating is granted on a schedular basis. Entitlement to an Extraschedular TDIU Prior to September 8, 2015 In January 2010, the Veteran filed a claim for entitlement to a TDIU. In a February 2010 rating decision, the RO granted service connection for the Veteran's DDD cervical spine and assigned a 10 percent rating effective March 6, 2007, and a 20 percent rating effective January 21, 2010. The Board notes that effective January 21, 2010, the Veteran had a combined 50 percent disability rating. While his 50 percent rating prevents the Veteran from being granted a TDIU on a schedular basis, under 38 C.F.R. §§ 4.16(b), entitlement to a TDIU is possible on an extraschedular basis. An extraschedular basis is warranted if the percentage criteria of 4.16(a) are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added). In an August 2009 opinion, the Veteran's private physician wrote that the Veteran was totally and permanently disabled. The physician based this opinion on a review of the Veteran's general position requirements as an assistant unit operator for the Tennessee Valley Authority. The physician opined that due to the Veteran's service-connected cervical disability, he was unable to perform certain physical requirements of his job. The physician wrote that the Veteran's cervical condition prevented him from wearing any type of heavy head gear or respirator with weight on his back, as this would put stress on the Veteran's neck and potentially aggravate his cervical condition. The Veteran would also be limited from working above his shoulders due to the extension it would place on his neck for long periods of time, and he would be unable to sustain the lifting requirements of his job. In a July 2017 VA examination report, the examiner noted that the Veteran's MDD had a negative impact and detrimental effect on his ability to function in normal life roles. According to the examiner after 1998, the Veteran's back injury and his diagnosis of MDD, caused him to struggle to engage with others at work due to high levels of agitation caused by lack of sleep and chronic pain. The Veteran's struggled to engage appropriately in interpersonal relationships and was unable to tolerate disrespect. He had low levels of patience and was often worried about how he would react to others, including his coworkers, if he did not have such a significant back and neck injury. The VA examiner reported that the Veteran's aggressive and intimidating personality, mood disturbance, low energy, and inability to sleep prevented normal social functioning needed to work in an occupational setting that required interactions with other people. In a June 2021 Administrative Review, the Executive Director of Compensation Service recommended that the Veteran be denied a TDIU on an extraschedular basis prior to September 8, 2015. In a September 2021 Advisory opinion, the Executive Director wrote that the Veteran had a college education and reported last working in 2009. He noted that he worked as a power plant operator for the Tennessee Valley Authority and as an office clerk for Morgan Motor Company. The Veteran's cervical condition resulted in reduced ranges of motion and painful motion for the neck. According to the medical reports cited by the Executive Director, the Veteran's neck condition caused difficulty working over the head with tingling and pain in the arms, and the Veteran's records showed that he was recommended not to perform repetitive movements involving his neck. The Veteran's MDD symptoms indicated depressive disorder for the time period in question and would have resulted in mild-to-moderate impairment. The Board notes that the Veteran's combined disability rating on January 21, 2010 was 50 percent. At that time, he was service connected for MDD at 30 percent, DDD cervical spine at 20 percent, and hypertension at 10 percent. See June 2021 Codesheet. Analysis Based on the above evidence, the Board determines that from January 21, 2010, the Veteran's service-connected disabilities have precluded him from securing and maintaining substantial gainful employment, on an extraschedular basis. 38 C.F.R. §§ 3.102, 3.303, 4.16(b). Weighing the available evidence, the Board finds that the private August 2009 opinion, combined with the July 2017 VA opinion have more probative weight than the June 2021 and September 2021 Advisory opinions from the Executive Director of Compensation Services. While the VA opinion was from July 2017, in that opinion, the VA examiner wrote that "after 1998," the Veteran's back and psychological disabilities would cause him to struggle at work due to high levels of agitation and chronic pain. The Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities precluded him from substantial gainful employment prior to October 7, 2017. Because of this, a TDIU is warranted on an extraschedular basis effective January 21, 2010. 38 C.F.R. §§ 3.102, 3.303, 4.16(b). From January 21, 2010, a TDIU rating is granted on an extraschedular basis. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as due to service-connected disabilities, is remanded. In the March 2021 decision, the Board ordered the RO to provide the Veteran with an examination to determine the nature and etiology of his sleep apnea. Specifically, the examiner was asked to indicate whether it was at least as likely as not that the Veteran's physical disabilities brought on obesity as an "intermediate cause" for sleep apnea. The Board notes that although service connection may not be awarded for obesity directly, VA has established that obesity can act as an "intermediate step" to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. VAOPGCPREC 1-2017. In the April 2021 VA opinion, the examiner did not give an opinion as to whether the Veteran's sleep apnea was proximately due to or the result of his service-connected conditions. The examiner did opine that the Veteran's sleep apnea was less likely than not aggravated beyond its natural progression by his service-connected disabilities. The rationale was that the Veteran's sleep apnea would not preclude him from a proper diet, which, according to the VA examiner, was the most important aspect to healthy weight. Additionally, the examiner noted that the Veteran's service-connected disabilities would not have precluded him from exercising. The Board finds that the April 2021 VA opinion is inadequate. The VA examiner did not provide an opinion as to the proximate cause of the Veteran's sleep apnea. Additionally, the opinion concerning aggravation was conclusory and did not answer the Board's questions from the March 2021 remand. Because of this, a new VA opinion is necessary to determine whether the Veteran's sleep apnea was caused or aggravated by his service-connected disabilities, to include whether his obesity resulted from one of his disabilities. The matters are REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning this claim. 2. Arrange for the Veteran's file to be forwarded to a VA examiner for a clarifying addendum opinion regarding the likely cause of his sleep apnea. The examiner or consulting physician must review the entire record (including all updated records obtained pursuant to the above development order). Based on his or her review, the examiner or consulting physician should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep was proximately due to or aggravated by his service-connected disabilities. If the Veteran's sleep apnea was not proximately due to or aggravated by his service-connected disabilities, the examiner is asked to opine whether is it at least as likely as not that the Veteran's service-connected disabilities, to include MDD, caused him to become obese, which then led to him developing sleep apnea. If the examiner determines that the Veteran's obesity is due to his service-connected disabilities, then the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea was caused or aggravated by the obesity caused by his service-connected disabilities. (Continued on next page) 3. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.