Citation Nr: 21076560 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-29 608 DATE: December 27, 2021 ORDER The April 14, 2020 Board decision is vacated, in part, as to the order denying entitlement to a total disability rating based on individual unemployability (TDIU). Entitlement to a TDIU is denied. FINDINGS OF FACT 1. At the time of the April 14, 2020 Board decision that denied entitlement to TDIU benefits, a separate Board decision issued the same day granted service connection for obstructive sleep apnea. 2. Failure to have deferred a decision on TDIU benefits until obstructive sleep apnea was assigned a disability rating violated due process. 3. Throughout the period on appeal, the Veteran's service-connected disabilities did not prevent him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for vacating the April 14, 2020 Board decision, as to the order denying entitlement to a TDIU, have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from May 1966 to March 1970. On April 14, 2020, the Board of Veterans' Appeals (Board), issued a decision denying entitlement to TDIU; granting an increased rating for posttraumatic stress disorder (PTSD); denying the issues of earlier effective dates for the grants of service connection for PTSD, diabetes mellitus, and diabetic peripheral neuropathy of the bilateral feet; denying the issues of increased ratings for diabetes mellitus and diabetic peripheral neuropathy of the bilateral feet; and, denying the issue of service connection for tinnitus. In a separate Board decision, also issued on April 14, 2020, service connection was granted for obstructive sleep apnea (OSA). The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Failure to defer a decision on the TDIU claim until the RO assigned a disability evaluation for OSA, denied the Veteran due process with respect to the TDIU appeal. Accordingly, the April 14, 2020 Board decision which denied TDIU benefits is vacated to that extent. TDIU The Veteran contends that throughout the period on appeal he was unable to obtain and retain substantially gainful employment due to his service-connected disabilities. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled Veteran 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 are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify entitlement to TDIU. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience. 38 C.F.R. § 4.16(b). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate 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 Board has reviewed the evidence of record and finds that entitlement to a TDIU is not warranted. Initially, the Board notes that the Veteran meets the schedular requirements for a TDIU. Throughout the period on appeal the Veteran's service-connected disabilities included PTSD with a 50 percent rating, from October 2017; diabetes mellitus rated 20 percent from October 2017; diabetic peripheral neuropathy of the right foot rated 10 percent disabling from October 2017; diabetic peripheral neuropathy of the left foot rated 10 percent disabling from October 2017, and supraventricular arrythmia rated 10 percent disabling from October 2017. This resulted in a combined 70 percent evaluation from October 2017. Effective from May 2018, service connection also was in effect for sleep apnea, assigned a 50 percent rating; left upper extremity essential tremors with a 20 percent rating; right upper extremity essential tremors with a 20 percent rating; Barrett's esophagus and gastroesophageal reflux disease (GERD), assigned a 10 percent rating; and hypertension assigned a noncompensable rating. This resulted in a combined 90 percent evaluation from May 2018. Therefore, the schedular rating requirements for a TDIU rating under 38 C.F.R. § 4.16(a) are met throughout the period on appeal. The remaining, and dispositive, question is whether the service-connected disabilities rendered him incapable of participating in regular and substantially gainful employment consistent with his education and work experience. Regarding the Veteran's educational and employment history, in an October 2019 disability and benefits questionnaire (DBQ) regarding PTSD, the private medical provider documented that the Veteran completed high school and attended some college. Additionally, in a January 2018 VA examination regarding PTSD, the VA examiner documented that the Veteran worked as a firefighter for 13 years, worked as a truck driver for 18 years, and most recently worked at an aviation company for 11 years where he was ultimately promoted to vice president. Further, during the examination the Veteran stated that he retired due to physical limitations primarily related to pain in his lower back, legs, neck, and feet. He also stated that although he produced high-quality work, which resulted in repeated promotions and longevity with the company, he was no longer interested in working and experiencing the stressful demands of a work environment. In a statement submitted in April 2021, the Veteran asserted that he was unable to obtain and retain substantially gainful employment due to his service-connected disabilities. The Veteran asserted that his service-connected diabetic peripheral neuropathy of the bilateral feet caused him to be unable to sit, stand, or walk for prolonged periods and caused him to be unable to walk properties or travel to properties, as required by his employment duties. He asserted that his service-connected sleep apnea caused him to doze off at work and caused him to be unable to drive to locations. Further, he stated that due to his sleep apnea, a colleague performed all driving duties. He also stated that his sleep apnea caused irritability and lack of concentration. He asserted that due to his service-connected hand tremors he was unable to write by hand or hold a pen. He stated that due to his hand tremor he had to type everything by computer, which was difficult and time-consuming. Additionally, the Veteran stated that an incident in 2011 involving bilateral leg weakness caused him to fall ground with temporary immobility. He stated that following that incident he chose to stop working to focus on his health. The Board notes that the Veteran is also diagnosed as having several non-service-connected disabilities, including neck pain, chronic low back pain, and radiculopathy of the bilateral lower and upper extremities. Regarding, supraventricular arrythmia, in a January 2018 VA examination the examiner determined that this disability would impact the Veteran's ability to work by precluding prolonged, heavy, and exertional activity. The Veteran reported experiencing supraventricular arrythmia episodes three times per week, which last for approximately 30 seconds. He also reported that since undergoing an ablation procedure two years prior, he no longer finds the supraventricular arrythmia episodes to be seriously debilitating. Private records dated in November 2019, indicated the Veteran presented to an emergency room with palpitations and complaining of a severe pounding sensation. This evidently resolved as by February 2020, it was noted there were no recurrent cardiopulmonary symptoms, and in October 2020 records, it was noted the Veteran's SVT was without impairment. Additionally, in a private medical statement submitted in November 2020, the Veteran reported that he experienced supraventricular arrythmia episodes approximately three times per week, which cause pain, shortness of breath, neck pain, and occasional arm pain. He stated that strenuous work does not necessarily cause the episodes; however, once he stops strenuous work, he notices his supraventricular arrythmia begin acting up. Regarding employability, the private physician documented that the Veteran reported that when he was employed the episodes could last anywhere from one hour to ten hours and would often worsen after a long day of work. Lastly, the private physician noted that the Veteran's supraventricular arrythmia had progressed materially to the present level as a result of his service-connected PTSD and diabetes mellitus. The Board finds that the Veteran's supraventricular arrythmia did not cause unemployability throughout the period on appeal, as the January 2018 VA examiner specifically determined that the Veteran would only be precluded from prolonged, heavy, and exertional activity and not from less strenuous activity. Moreover, in the statement submitted in November 2020 the Veteran reported the same number of weekly episodes as reported during the January 2018 VA examination; the more severe and prolonged episodes were reported as occurring during a time when he was still employed, which was prior to the period on appeal and prior to the ablation procedure that lessened the severity of his supraventricular arrythmia; and, he reported that even during the more severe and prolonged episodes he was able to continue to working without mention of complications. Regarding diabetes mellitus, in a January 2018 VA examination the examiner determined that this disability would not impact the Veteran's ability to work. The examiner also determined that the Veteran's diabetes mellitus was well-controlled by medication and a restricted diet and that regulation of activities was not required. Therefore, due to the lack of any functional impact caused by diabetes mellitus, the Board finds that this disability did not cause unemployability throughout the period on appeal. Regarding Barrett's esophagus, a July 2021 DBQ report simply reflects daily burning with an effect on the Veteran's diet, but no impairment of occupational tasks was identified. Regarding diabetic peripheral neuropathy of the bilateral feet, in a January 2018 VA examination the examiner determined this disability would not impact the Veteran's ability to work. In April 2019 VA treatment records, the Veteran reported bilateral foot pain extending up to his shins as well as weakness while walking. Further, the Veteran reported that he could walk an unlimited distance if he walks slowly. In a private medical statement submitted in December 2019, the Veteran reported experiencing pain, weakness, paresthesia, and numbness in the bilateral feet. The Board finds that the Veteran's peripheral neuropathy of the bilateral feet did not cause unemployability throughout the period on appeal. Although the Veteran stated that this disability caused him to be unable to sit, stand, or walk for prolonged periods and caused him to be unable to walk properties or travel to properties, as required by his employment duties, the January 2018 VA examiner specifically determined that this disability would not cause any functional impact and in April 2019 VA treatment records the Veteran reported that he was able to walk an unlimited distance if he walks slowly. Additionally, in the April 2021 statement, the Veteran reported that while employed he was still able to travel to locations as required by his employment with a colleague performing the driving duties. Regarding sleep apnea, in a DBQ submitted in October 2019, the Veteran's private physician determined that this disability would impact the Veteran's ability to work as he experienced moderately-severe daytime sleepiness with diminished concentration and would require one to two daily afternoon naps. Further, the private physician stated that the Veteran would require excessive additional breaks in any workplace to regain focus and to take daytime naps. A July 2021 DBQ report noted the functional impact of the Veteran's sleep apnea was daily episodes of tiredness. The Board finds that the Veteran's sleep apnea did not cause unemployability throughout the period on appeal. Although the private physician determined that the Veteran would require excessive additional breaks in any workplace to regain focus and to take daytime naps, the medical evidence of record does not indicate that the Veteran reported the need for naps or reported that he takes naps. Moreover, in the April 2021 statement although the Veteran reported tiredness due to sleep apnea, he did not report the need for daily naps and the modification of a colleague performing the driving duties allowed him to continue working. Regarding essential tremors of the bilateral upper extremities, in February 2018 VA treatment records, the Veteran complained of shaking in his hands due to tremors and reported that he has declined further work due to the tremors. In the April 2021 statement, the Veteran specifically reported that a modification was available for his inability to write by hand, as he was able to type all required communication by computer. A July 2021 DBQ indicated a loss of fine motor skills requiring the Veteran to hold things with 2 hands. The evidence demonstrates that although the Veteran reported that this modification was more time-consuming, he was able to continue working. Therefore, the Board finds that the Veteran's essential tremors of the bilateral upper extremities did not cause unemployability throughout the period on appeal. Regarding PTSD, the Veteran underwent VA examinations regarding PTSD in January 2018 and April 2021. During the January 2018 VA examination, the examiner diagnosed the Veteran as having PTSD and unspecified depressive disorder. The examiner determined that the Veteran's depression was the primary diagnosis with PTSD as a secondary diagnosis. The examiner determined that the Veteran's psychiatric symptoms attributable to PTSD included anxiety, chronic sleep impairment, nightmares, intrusive thoughts and memories, hypervigilance, exaggerated startle response, problems with concentration, and emotional numbing. The examiner opined that the Veteran's level of impairment was 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. During the April 2021 VA examination, the examiner diagnosed the Veteran as having PTSD as well as depression due to another medical condition. The examiner determined that the Veteran's psychiatric symptoms attributable to PTSD included anxiety, depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty adapting to stressful circumstances, intrusive thoughts, avoidance, persistent distorted cognitions, anger, guilt, irritability, and exaggerated startle response. The examiner opined that the Veteran's level of impairment was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. In October 2019, the Veteran submitted a DBQ completed by a private medical provider regarding PTSD. The examiner diagnosed the Veteran as having PTSD and unspecified depressive disorder. The examiner determined that the Veteran's psychiatric symptoms attributable to PTSD included depressed mood, anxiety, panic attacks that occur weekly, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short-term and long-term memory, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. The examiner opined that the Veteran's level of impairment was occupational and social impairment with deficiencies in most areas. In December 2019, the Veteran submitted a statement from the same private medical provider. The private medical provider determined that the Veteran's psychiatric symptoms included chronic sleep impairment, nightmares, mild memory loss, impairment of short-term and long-term memory, disturbances of motivation and mood, hypervigilance, difficulty concentrating, irritability, and difficulty adapting to stressful circumstances. The private medical provider stated that it is not possible to differentiate the Veteran's overlapping psychiatric symptoms due to PTSD and depressive disorder and determined that due to both PTSD and depressive disorder he would not be able to sustain the stress from a competitive work environment or be expected to engage in gainful activity. The Board finds that the Veteran's PTSD did not cause unemployability throughout the period on appeal. The Board acknowledges that in the December 2019 statement the private medical provider determined that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity; however, the private medical provider also stated that it was not possible to differentiate the Veteran's overlapping psychiatric symptoms due to PTSD and depressive disorder. Thus, the private medical provider's conclusions are based not only on the symptoms of the Veteran's service-connected PTSD but also the symptoms of his non-service-connected depressive disorder, which together demonstrate a greater level of functional impairment. Further, symptoms related to a non-service-connected disability are not available for consideration by the Board in determining entitlement to a TDIU. In contrast, the January 2018 and April 2021 VA examiners were able to differentiate the Veteran's PTSD symptoms from the depressive disorder symptoms and specifically determined that although such symptoms caused a functional impact, the level of impairment did not rise to the level of unemployability. The Board finds that in determining unemployability throughout the period on appeal, as the VA examinations provided findings differentiating the Veteran's psychiatric symptoms, the findings of the VA examinations are therefore of greater probative value than the findings of the private medical provider. Therefore, the Board finds that the Veteran's PTSD did not cause unemployability. Lastly, the Board finds that the combined effect of the Veteran's service-connected disabilities did not cause unemployability throughout the period on appeal. As noted above, the Veteran's level of skill and the duties of his occupation allowed for workplace modifications due to the limitations caused by his service-connected disabilities, such having a colleague perform the driving duties and typing rather than handwriting communications. Moreover, in the April 2021 statement the Veteran specifically stated that he chose to stop working after a significant incident involving symptoms due to his non-service-connected disabilities and during the January 2018 VA examination the Veteran stated that he stopped working due to physical limitations primarily related to his non-service-connected disabilities, which cannot be considered by the Board in determining entitlement to a TDIU. Therefore, the Board finds that the combined effect of the Veteran's service-connected disabilities did not cause unemployability. Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to a TDIU. Therefore, the appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, Associate 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.