Citation Nr: 21073558 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 15-23 360A DATE: December 9, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The service-connected disabilities are shown to preclude the Veteran from securing and following substantially gainful employment consistent with her work and education background. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to August 1992. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the RO. In August 2020, the Board remanded the issue for further development of the record. Specifically, the Board noted that the claim for a TDIU had been added as an issue on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board instructed the Agency of Original Jurisdiction (AOJ) to complete the development of the intertwined issues before adjudicating the claim for a TDIU. The development was completed and service connection for diabetes mellitus, obstructive sleep apnea, and a left sciatic nerve disability was granted in an August 2021 rating decision. Thereafter, the AOJ adjudicated the claim for a TDIU in August 2021. Thus, the requested development has been completed and the case has been returned for appellate disposition. In August 2021, the RO assigned disability ratings for diabetes mellitus, sleep apnea, and a diabetic peripheral neuropathy of the left lower extremity involving the sciatic nerve and assigned 20, 30 (and 50), and 10 percent ratings, respectively, effective August 8, 2011 (diabetes mellitus and sleep apnea 30 percent rating), January 10, 2020 (sleep apnea 50 percent rating) and December 17, 2020 (diabetic peripheral neuropathy of the left lower extremity involving the sciatic nerve). Therefore, her appeal concerning the issues of service connection for diabetes mellitus, sleep apnea, and a left sciatic nerve disability has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). 1. Entitlement to a TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. Service-connection is currently in effect for depression (30 percent disabling, August 8, 2011; 70 percent disabling, April 7, 2015), sleep apnea (30 percent disabling, August 8, 2011; 50 percent disabling, January 10, 2020), diabetes mellitus (20 percent disabling), right eye macular pucker (noncompensable, August 8, 2011; 20 percent disabling, July 14, 2021), diabetic peripheral neuropathy of the left lower extremity involving the sciatic nerve (10 percent disabling), diabetic peripheral neuropathy of the right lower extremity involving the sciatic nerve (10 percent disabling), diabetic peripheral neuropathy of the left lower extremity involving the femoral nerve (10 percent disabling), and diabetic peripheral neuropathy of the right lower extremity involving the femoral nerve (10 percent disabling); the combined rating for all these service-connected disabilities is 60 percent from August 8, 2011; 80 percent from April 7, 2015; and, 90 percent from January 10, 2020. The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA may consider the Veteran's education, special training, and previous work experience, but not her age or to the impairment 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 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran can perform the physical and mental acts required by employment, not whether she can find employment. Van Hoose, 4 Vet. App. at 363. A May 2013 VA mental disorders examination reflects that the Veteran's depression was productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. She had a 12th grade education and had worked full-time at Columbus Air Force Base since January 2001. The October 2019 VA peripheral nerves conditions examination reflects that the Veteran's left lower extremity peripheral nerve disability affected her ability to work. She could not walk long distances, stand for prolonged periods of time, or sit for prolonged periods of time without increased pain. The October 2019 VA sleep apnea examination reflects that the Veteran's sleep apnea affected her ability to work. The examiner reported that the Veteran was retired but she did get very fatigued and nods off during the day which greatly affected her functional ability. November 2019 VA mental disorders examination reflects that the Veteran's depression was productive of occupational and social impairment with deficiencies in most areas. After service she worked as a secretary at Columbus Air Force Base from January 2001 until 2013 when she ceased working. Her depression was manifested by depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work or a work-like setting, suicidal ideation, and impaired impulse control. The December 2020 VA diabetes mellitus and diabetic sensory-motor peripheral neuropathy examinations reflect that the Veteran's diabetes mellitus and diabetic peripheral neuropathy of the right and left lower extremities involving the sciatic and femoral nerves affected her ability to work. She experienced symptoms of diabetic peripheral neuropathy manifested by numbness and tingling in her bilateral legs and feet that disrupted/caused problems with her gait. Due to her disturbed gait (from the numbness and tingling in her bilateral lower extremities), the Veteran experienced intermittent episodes of falling. The July 2021 VA eye conditions examination reflects, in pertinent part, that the Veteran's right eye macular pucker affected her ability to work. She demonstrated blurred and distorted vision in the right eye due, in pertinent part, to her macular pucker. The Veteran's October 2020 application for a TDIU rating indicated that her depression affected her full-time employment beginning August 8, 2011. She reported that she became too disabled to work and last worked full-time July 31, 2013. She graduated high school and had no further education or training. She reported that her forgetfulness and irritability interfered with her ability to perform her administrative professional job responsibilities because she would forget suspense dates or where things were located around the organization. Because of her irritability, she kept her office door closed to block out the world and protect herself. An October 2020 statement from the Veteran's daughter documents the Veteran's decline in social and occupational functioning because of her service-connected depression. The daughter reported that the Veteran did not function well enough to be employed anywhere and she did not have a desire to interact with people. Her daughter noted that the Veteran's depression had attacked her cognitive abilities and emotional state. Her daughter concluded that the Veteran was unemployable due to her depression A November 2020 statement from the Veteran's employer reflects that the employer agreed to work with the Veteran until she was old enough to retire and that her retirement was mandatory. The employer reported that the Veteran's retirement was advised and recommended because of her performance. The employer explained that the Veteran missed suspense dates, forgot critical mission information and her performance continued to decline. The employer noted that her coworkers considered the Veteran to be a "ticking time bomb," and she was hard to approach, and easily irritated in the workplace. The employer explained that the Veteran had been protected by her supervisors but was forced to retire when she turned 60. The employer concluded that the Veteran was not recommended for further employment. On this record, the Board finds that the evidence is in equipoise in showing that the Veteran's service-connected disabilities preclude her from realistically obtaining and maintaining any form of gainful employment, consistent with her work and education background. The Veteran was employed as an administrative professional and had worked in a protected environment (i.e. was protected by her supervisors) until her forced retirement when she turned 60 due to her poor performance. She missed suspense dates, forgot critical mission information and her performance continued to decline. As noted, she did not work well with coworkers and her employer did not recommend her for further work. Further, her diabetes mellitus and diabetic peripheral neuropathy of the right and left lower extremities disabilities impaired her ability to walk long distances, stand for prolonged periods of time sit for prolonged periods of time, and disrupted her gait, leading to intermittent falling episodes. Her sleep apnea resulted in her being very fatigued during the day which greatly affected her functional ability. Her depression was manifested, in pertinent part, by disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work-like setting. Finally, her eye disability affected her ability to work because it caused blurred and distorted vision in the right eye due. In short, the evidence is in equipoise in showing the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity, consistent with her work and education background due to her service-connected disabilities, specifically her service-connected depression (i.e., her service-connected disabilities are preventing her from maintaining substantially gainful employment). (CONTINUED ON THE NEXT PAGE) Thus, the Board finds that a grant of a TDIU rating is warranted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.