Citation Nr: 21077071 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 10-22 639A DATE: December 28, 2021 ORDER Effective from June 17, 2010, a total disability based on individual unemployability (TDIU) is granted. REMANDED A rating in excess of 30 percent for hypothyroidism since December 10, 2017. A rating in excess of 10 percent for hypothyroidism prior to December 10, 2017. Service connection for obstructive sleep apnea (OSA). A TDIU prior to June 17, 2010. FINDING OF FACT Since June 17, 2010, the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW Since June 17, 2010, the criteria for a TDIU have been 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 from October 1981 to February 1982, from May 2002 to November 2002, from February 2003 to August 2004, and from October 2006 to May 2008. He had additional service in the Army National Guard. The case is on appeal from November 2010, March 2018, and October 2018 rating decisions. The case was most recently before the Board in April 2020. At that time, the Board denied service connection for OSA and for an increased rating for hypothyroidism, and additionally addressed claims for increased ratings and earlier effective dates for right and left lower extremity radiculopathy, mood disorder, and surgical scar of the torso. The Board also remanded claims for service connection for a bilateral eye disability, hearing loss, and reduction of compensation benefits due to military drill pay. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the parties entered into a joint motion for partial remand (JMPR), which the Court granted in a March 2021 Order. By Court Order, the portion of the Board's April 2020 decision denying service connection for OSA and an increased rating for hypothyroidism was vacated. It was also determined that the Board erred by failing to take jurisdiction over the issue of an earlier effective date for a TDIU rating, as the issue was already in appellate status. Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). The case was remanded back to the Board for further consideration consistent with the terms of the JMPR. The Veteran did not challenge the Board's April 2020 denial of full grants for increased ratings and earlier effective dates for right and left lower radiculopathy, mood disorder, and surgical scar of the torso. The Court dismissed those claims, and thus those claims are no longer on appeal. The Veteran's claims for service connection for a bilateral eye disability, hearing loss, and reduction of compensation benefits due to military drill pay are still in remand status. A TDIU prior to May 31, 2018. While the clam for a TDIU was in remand status from a November 2016 Board decision, the Veteran was granted schedular TDIU from May 31, 2018, pursuant to a January 2020 rating decision. Based on the Board's April 2020 decision to award an initial 50 percent rating for his service-connected mood disorder, the Veteran has met the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) since June 17, 2010. See also 38 C.F.R. § 4.25. Thus, an earlier award of TDIU on a schedular basis from June 17, 2010 to May 31, 2018 is still on appeal. Legal Criteria A total disability rating for compensation may be assigned where the schedular rating is less than total and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and; Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). If the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, then a TDIU may still be granted on an extraschedular basis in cases when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). However, the Board cannot grant an award of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation Service (Director) for extraschedular consideration. See Wages v. McDonald, 27 Vet. App. 233 (2015). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Facts and Analysis In his claim for individual unemployability received by VA in August 2012, the Veteran indicated that he last worked full-time in 2008 at a gas station, but that his service-connected back disability prevents him from gainful employment. In a September 2010 statement, he contends that his only vocational experience involves physical trades and that he is not qualified to do anything but manual labor. He included correspondence from his former employer in support of his claim, stating that he interviewed the Veteran in 2008 upon return from active duty, but that he had to make the unfortunate decision to let him go from employment because he was unable to do the job as required from his back injury and depressed condition. At a VA examination in July 2010, it was reported that he was not currently employed, and that the effect of his service-connected low back disability would create increased absenteeism, decreased mobility, and problems with lifting and carrying due to pain. A VA examiner in April 2012 also opined that the Veteran's mood instability can limit his capacity to interact effectively and on a sustained basis with other individuals. The psychiatrist stated that his social functioning in a work environment that involves interaction with the public, responding appropriately to persons in authority, or cooperative behaviors involving coworkers, can be limited. The claims file includes records from the Social Security Administration (SSA) indicating that the Veteran has been receiving disability since July 2009 due to disorders of the back and his mood disorder. In the eligibility determination, it was found that he is unable to perform any of his past relevant work which required physical demands. It was determined that his job skills do not transfer to other occupations within his residual functional capacity with consideration of his age, education, work experience, and number of appropriate jobs in the national economy. It was also found that his severe mental impairments limit him to very simple work activity on a limited, irregular basis, not requiring more than occasional contact with others, which greatly curbs his capacity to perform even sedentary work. In September 2015, the Veteran submitted the independent opinion of a certified vocational evaluator. He opined: "Based on my review of the records and experience, the veteran is unable to maintain substantial, gainful employment on a regular and consistent basis even at the sedentary level of work due to primarily his service-connected depression disorder as well as service-connected lumbar spine disorder which I consider to be the most disabling when taken together." He referenced the results of the Veteran's prior VA examinations, noting the Veteran's physical limitations of the inability to walk and stand even for short periods, lifting, bending, stooping, or twisting due to low back pain and lower extremity radiculopathy. He also discussed the Veteran's mood disorder significantly compromises interactions within work relationships and maintaining required pace and production demands. The vocational expert opined that even sedentary employment would be difficult, as the Veteran will most likely require frequent unscheduled absences, as well as unacceptable level of prolonged absenteeism from a place of employment. Given the totality of the evidence of record, to include the Veteran's level of education, skill, and history of employment, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected low back disability and mood disorder since June 17, 2010. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. A rating in excess of 30 percent for hypothyroidism since December 10, 2017. 2. A rating in excess of 10 percent for hypothyroidism prior to December 10, 2017. The Veteran filed a claim for increase for his hypothyroidism in August 2018, which begins the period of appellate review now before the Board, to include consideration of the one-year look back period prior to the filing of that claim. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). While the claim was on appeal, the Veteran was awarded 30 percent from December 10, 2017. As this does not represent a full grant of the benefit sought, the increased rating claim now before the Board includes reviewing evidence for a rating in excess of 10 percent from August 13, 2017 to December 10, 2017, and in excess of 30 percent thereafter. The Veteran was afforded a VA examination in September 2018. His diagnosis of hypothyroidism was confirmed, and it was noted that he takes prescribed medication daily for his condition. He reported feeling anxious, tired, daytime somnolence, and fatigue. The examiner indicated that there were no findings, signs, or symptoms of the Veteran's hypothyroidism, with no evidence of myxedema, but that the Veteran's mental disturbance of depression was linked to his hypothyroidism. The examiner did not respond to the question prompt of whether the condition was currently asymptomatic, or required continuous medication. The Board finds that another VA medical examination is necessary to determine the severity of the Veteran's hypothyroidism. The Board notes that at a prior examination in December 2012, the condition was "currently active," exhibiting symptoms of intolerance of cold weather described as swelling of hands and feet, along with fatigability, sleepiness, depression, slowing of thought, poor memory, and difficulty swallowing. He was found to require continuous treatment of Synthroid two times per day to control the condition. Thus, it is likely that the September 2018 examination did not take place at a time when the Veteran's disability was most disabling. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Further, the examiner did not specify if the disorder was currently asymptomatic or the impact of the continuous medication. The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Veteran is rated for hypothyroidism under Diagnostic Code (7903). 38C.F.R. §4.119. The criteria for rating hypothyroidism under DC 7903 were amended effective December 10, 2017. 82 Fed. Reg. 50802 (November 2, 2017). While the prior, older criteria considered continuous medication use for the disorder, the new DC 7903 criteria does not. Therefore, VA is precluded from considering the ameliorative effects of his medication since December 10, 2017. As the effects of the Veteran's daily medication were not discussed, nor whether the Veteran experienced flareups, the September 2018 examination is not wholly adequate for rating purposes. On remand, the Veteran should be afforded another VA examination, if possible, during an active phase of his hypothyroidism. If the examination cannot be conducted at such time, it is important that the VA examiner review the Veteran's documented medical history and consider the Veteran's lay statements as to the severity, so an estimate can be rendered as to symptoms exhibited during a period of flareup. In light of the remand, updated VA treatment records should be obtained. 3. Service connection for OSA. The Veteran contends that his OSA was incurred during active duty service, or secondarily to a service-connected condition. The Veteran was afforded a VA examination in March 2018. It was determined that the Veteran has a current diagnosis of OSA following a sleep study conducted in August 2015. It was reported that he requires use of a continuous positive airway pressure (CPAP) machine. The examiner did not provide an opinion as to whether the condition was a result of his military service. In January 2020, the Veteran underwent a new VA examination. The examiner opined that his OSA was less likely than not proximately due to or the result of the Veteran's service-connected hypothyroidism, with the rationale that medical literature fails to show that hypothyroidism causes or is a risk factor in the development of OSA. The examiner did not provide an opinion as to whether the sleep apnea condition is directly related to his active service, or caused or aggravated by any other service-connected disability such as his hypertension. The Board finds that a remand is warranted for another medical opinion to address whether his OSA condition is a directly related to service, or caused or aggravated by any other service-connected disability to include hypertension. 4. A TDIU prior to June 17, 2010. While the Board factually found the Veteran is warranted TDIU from June 17, 2010, the Veteran did not meet the percentages criteria for a schedular grant of TDIU under 38 C.F.R. § 4.16 (a) prior to June 17, 2010. Because the Board is precluded by regulation from assigning an extraschedular TDIU in the first instance, remand for referral to the Director in accordance with 38 C.F.R. § 4.16 (b) is thus warranted. See Wages, 27 Vet. App. at 233; see also Snider v. McDonough, No. 19-6707, 2021 U.S. App. Vet. Claims LEXIS 2050 (Nov. 19, 2021). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to assess the severity of his service-connected hypothyroidism. To the extent reasonable and practicable, coordinate with the Veteran to schedule the examination during an active stage of the disease. The examiner is asked to consider and address: (1) any type of treatment used for the condition to include oral medication; (2) the Veteran's lay statements of severity during flareups, if any; (3) any distinction in severity, frequency, and duration of symptomatology when he follows prescribed medication for the condition versus when he does not. If the examination is not during a flareup, the effects of a flareup should be estimated to the extent reasonably possible. If they cannot be, it should be explained why this is so. 2. Forward the claims file to an appropriate clinician for a medical opinion as to the nature and etiology of the Veteran's OSA claim. The need for an in-person clinical examination of the Veteran should be determined by the examiner. The record, including a complete copy of this remand, should be made available for review. The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea: (a) had its onset during, or is otherwise related to, active service, or (b) is caused or aggravated by a service-connected disability, to include but not limited to, his hypertension or hypothyroidism. Aggravation is an increase in severity beyond the natural progress of the disease. Obesity may also be considered an "intermediate step" between a service-connected disability and a claimed current disability. If the absence of treatment during or after service plays a role in the formation of the opinion, the medical importance of this should be explained. The examiner should provide rationale for all opinions expressed, including by citing to the record. (Continued on the next page) 3. Refer the issue of entitlement to a TDIU prior to June 17, 2010 to the Director of VA's Compensation Service for extraschedular consideration. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.