Citation Nr: 21075015 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-53 172 DATE: December 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is dismissed. Entitlement to service connection for headaches is dismissed. Entitlement to service connection for hypertension (claimed as high blood pressure) is dismissed. Entitlement to service connection for obstructive sleep apnea is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The June 2021 rating decision granted service connection for the Veteran's acquired psychiatric disorder, to include depression and anxiety, headaches, hypertension, and obstructive sleep apnea, which constitutes a full grant of benefits under the law; and therefore, these issues are no longer in appellate status. 2. Resolving all reasonable doubt in favor of the Veteran, the Veteran's service-connected disabilities precluded him from securing and/or following substantially gainful employment. CONCLUSIONS OF LAW 1. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to service connection for headaches. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to service connection for hypertension (claimed as high blood pressure). 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to service connection for obstructive sleep apnea. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Army from January 1966 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia. These issues have been previously before the Board in July 2019 and April 2021, where they were remanded for additional development. The Board notes that there was substantial compliance with its April 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for hypertension (claimed as high blood pressure). 4. Entitlement to service connection for obstructive sleep apnea. The Board notes that during the rating period on appeal, specifically in a June 2021 rating decision, the Veteran was granted service connection for an acquired psychiatric disorder, headaches, hypertension, and obstructive sleep apnea, which represents a full grant of benefits for these issues. Therefore, as the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed, there remains no allegation of error of fact or law for appellate consideration with respect to the Veteran's claims noted above currently on appeal. 38 U.S.C. § 7105. Accordingly, the Board does not have jurisdiction to review the appeal as it pertains to these issues, and they are hereby dismissed. 38 C.F.R. § 20.101. 5. Entitlement to a TDIU. The Veteran contends that he is unemployable due to his service-connected disabilities. Generally, a TDIU rating 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 resulting from 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. §§ 3.340, 3.341, 4.16(a). In determining whether unemployability exists due to a service-connected disability or disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience; however, age and impairment caused by nonservice-connected disabilities are not factors for consideration. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of TDIU. 38 C.F.R. §§ 3.341, 4.16, 4.19. Also, it is necessary that the record reflect some factor(s) that places the Veteran in a different category than other veterans with equal ratings of disability. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran's service-connected disabilities include the following: ischemic heart disease, rated as 30 percent disabled from August 31, 2010, and rated as 60 percent disabled from September 30, 2013; nephropathy, rated as 30 percent disabled from February 28, 2011, and rated as 60 percent disabled from February 18, 2015; headaches, rated as 50 percent disabled from February 18, 2015; obstructive sleep apnea, rated as 30 percent disabled from February 18, 2015, and rated a 50 percent disabled from February 7, 2017; unspecified depressive disorder, rated as 70 percent disabled from February 18, 2015, and rated as 30 percent disabled from May 26, 2021; diabetes mellitus, rated as 20 percent disabled from January 10, 2010; tinnitus, rated as 10 percent disabled from February 18, 2015; bilateral upper extremity diabetic peripheral neuropathy, rated as 10 percent disabled from February 10, 2021; bilateral lower extremity diabetic peripheral neuropathy, rated as 10 percent disabled from February 10, 2021; and scars, rated as noncompensable from August 31, 2010. Based on the above, the Veteran met the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) on September 30, 2013, with a combined schedular rating of 80 percent. In a September 2021 application, the Veteran revealed that he last worked full-time as a maintenance superintendent, and became too disabled to work in 1996. The record reveals that he has a master's degree in management, with no additional educational or professional training. In several VA examinations to assess the Veteran's heart disease, diabetes mellitus, hypertension, scars, nephropathy, and bilateral upper and lower peripheral neuropathy the examiners noted that the diagnosed conditions do not impact his ability to work. See C&P Exams, August 2014, September 2014, April 2015, August 2018, April 2021, and June 2021. In an August 2017 private psychiatric evaluation, the examiner noted the Veteran's relevant occupational and educational history and found that the Veteran's depressive disorder results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner provided a residual functional capacity evaluation that shows the Veteran missed 3 or more days of work or needed to leave early every month due to his mental problems, with him having trouble concentrating more than 3 days out of the month and responding in an angry manner more than once per month when subjected to normal pressures on the job. The examiner opined that the Veteran's depressive disorder prevents him from maintaining substantially gainful employment, as the he cannot sustain stress from a competitive work environment or be expected to engage in gainful activity due to his condition. See Correspondence, August 2017; see also Private treatment records, August 2017. In a September 2017 private medical opinion regarding the Veteran's ability to work, the physician, after reviewing the Veteran's entire claims file, noted that the Veteran cannot stand/walk for too long, lift/carry more than 10 pounds consistently, or sit for more than 2 to 4 hours. The physician believed the Veteran would require having at least one break in addition to the standard 30-minute lunch and 15-minute morning and afternoon breaks. He subsequently found that the combined effects caused by the Veteran's service-connected disabilities impact his ability to stay focused and, therefore, opined that it is more likely than not that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities, as he would not be able to stay focused to complete simple repetitive tasks 7 out of 8 hours a day for 3 or more days per month. See Private treatment record, September 2017. In a residual functional capacity evaluation for the Veteran's headaches, the examiner noted the Veteran missed 1 day per week or had to leave early due to his headaches; the Veteran also had trouble concentrating 2 to 3 days per week. See Private treatment record, September 2017. In a September 2017 private examination to assess the Veteran's sleep apnea, the examiner noted the Veteran's condition impacts his ability to work, as the Veteran has trouble sleeping throughout the night resulting in tiredness during the day and required 2 unavoidable naps each day. The Veteran's excessive sleepiness the next day impacts his ability to focus and concentrate to complete simple repetitive type tasks. See Private examination, September 2017. In a September 2017 private examination to assess the Veteran's headaches, the examiner noted the Veteran's condition impacts his ability to work, as he would be required to miss work or leave work early due to his headaches. See Private examination, September 2017. In an August 2018 VA examination to assess the Veteran's tinnitus, the examiner noted that his condition impacts his ability to work, as the Veteran stated that "it's a pain in the neck" and makes him irritable. See C&P Exam, August 2018. In an August 2019 VA addendum medical opinion, the examiner noted that the Veteran's tinnitus does not create a functional limitation in an occupational environment, and therefore, should have no significant impact on his ability to perform either physical or sedentary types of employment. See C&P Exam, August 2019. In an August 2019 VA medical opinion, the examiner found the Veteran's service-connected nephropathy, diabetes mellitus, and scars have no functional limitations, however, his ischemic heart disease has moderate functional limitations. The examiner opined that the Veteran is capable of functioning in a sedentary occupational environment, consistent with his education and occupational experience. See C&P Exam, August 2019. In a May 2021 VA individual unemployability medical opinion, the examiner found that the Veteran's psychiatric disorder results in difficulty maintaining concentration and focus on work over a period of time. The examiner noted the Veteran tends to skip from one task to another without completing the prior task. See C&P Exam, May 2021. In a June 2021 VA examination to assess the Veteran's headaches, the examiner noted the condition impacts his ability to work, as it would limit his ability to focus and concentrate. See C&P Exam, June 2021. In the June 2021 VA individual unemployability medical opinions, the examiner found that the Veteran's hypertension and headaches results in him being able to perform sedentary work. See C&P Exam, June 2021. In lay statements submitted by the Veteran and his representative, they assert the Veteran experiences fatigue, headaches, chest pains, shortness of breath, dizziness, inability to focus, impacted thought processes, lack of concentration, memory problems, lack of energy, swelling of the feet/toes, increased urination, inability to lift/carry anything heavier than a gallon of milk, poor balance, limited climbing of stairs/steps, and poor sleeping due to his service-connected disabilities, which impacts his ability to work and maintain daily tasks. See Correspondences, December 2020 and August 2021. (Continued on the next page) Based on the above, to include consideration of the Veteran's work history, medical assessments, and lay statements, the Board finds that the probative evidence of record is in favor of the Veteran, or at the very least, in relative equipoise, of him have been unable to secure and/or maintain any substantially gainful occupation due to his service-connected disabilities. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board concludes that entitlement to TDIU is warranted; and the claim is granted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.