Citation Nr: 21022922 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 94-49 681 DATE: April 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDINGS OF FACT 1. The Veteran is service connected for chronic bronchitis variant of chronic obstructive pulmonary disease (COPD), rated at 30 percent. 2. The preponderance of the evidence is against finding the Veteran’s chronic bronchitis variant of COPD prevented him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1962 to January 1964. Entitlement to a TDIU on an extraschedular basis The Veteran contends he is entitled to a TDIU on an extraschedular basis. A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran fails to meet the applicable percentage standards in 38 C.F.R. § 4.16(a), entitlement to a TDIU on an extraschedular basis may still be granted. 38 C.F.R. § 4.16(b). Neither the Agency of Original Jurisdiction (AOJ) nor the Board is authorized to assign an extraschedular TDIU in the first instance. Id. The rating boards should submit to the Director, Compensation Service (Director), for extraschedular consideration all cases of veterans who may be unemployable by reason of service-connected disabilities, but fail to meet the schedular TDIU requirements. Here, as the issue of extraschedular consideration has been adjudicated in the first instance by the Director in February 2020, the Board is free to review this matter de novo. Floyd v. Brown, 9 Vet. App. 94 (1996). If a veteran fails to meet the applicable percentage standards under 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to level of education, special training, and previous work experience. The preponderance of the evidence is against finding the Veteran’s service-connected chronic bronchitis variant of COPD precluded him from securing or following substantially gainful employment. The evidence supports finding the Veteran has not worked substantial gainful employment since August 1, 1998. See July 1999 Social Security Administration (SSA) disability decision and October 2016 Application for Increased Compensation Based on Unemployability. The Veteran reported he was unable to secure or maintain substantially gainful employment due to chronic bronchitis, COPD, obstructive sleep apnea (OSA), painful neck and shoulders, and depression. See October 2016 Application for Increased Compensation Based on Unemployability. He completed high school and received a bachelor’s degree. He worked in computer technical services. At an April 1999 SSA psychological examination, the Veteran reported severe health problems, including depression, COPD, low back pain, tightness in neck and shoulders, and kidney problems. He reported he last worked in September 1998 as a system analyst. He stated he stopped working because he was sleeping at work and moving slowly. The examiner diagnosed major depressive disorder (MDD) and a history of alcohol abuse. The examiner opined the Veteran was able to maintain concentration for one to two hours at a time, able to perform within a schedule and maintain attendance, unable to work with others without being sidetracked, unable to work a workweek without interruption from his symptoms, able to respond appropriately to supervisors and coworkers, would have difficulty tolerating customers, able to follow simple to moderately complex work instructions, and unable to adjust in routine settings to situational changes. The examiner concluded the Veteran’s physical and mental disabilities would present significant difficulties with carrying out a majority of jobs for which he was best suited. A July 1999 SSA disability decision found the Veteran was entitled to disability benefits, effective August 1, 1998. The decision stated there was no evidence of substantial gainful employment since August 1, 1998. The decision found the severe impairments of COPD, back disorder, and depression. The decision found the Veteran’s severe impairments would allow work that required he lift and carry no more than 10 pounds occasionally or 20 pounds frequently, be on his feet no more than 6 hours out of an 8 hour workday, avoid exposure to concentrated irritants, with the psychological limitations included in the April 1999 SSA psychological evaluation. The decision stated a vocational expert at a July 1999 hearing found the claimant’s limitations, specifically his psychological limitations, would not allow him to return to his past relevant work. Under SSA’s framework, based on the claimant’s advanced age, residual functional capacity, education, and work history, the claimant was determined disabled. At a September 2005 VA respiratory examination, the Veteran was assessed with chronic bronchitis. He reported two to three infectious episodes per year, typically characterized by cough, septum production, shortness of breath, wheezing, chest tightness, with or without sore throat. The clinician noted multiple ER or unscheduled treatment visits for respiratory symptoms. The Veteran reported he could walk three or four blocks on level ground or climb a flight of stairs before becoming short of breath. A December 2007 polysomnography report assessed severe OSA. The report noted a pertinent medical history of snoring, daytime sleepiness, overweight, fatigue, nocturia, COPD, nocturnal limb movements, restless leg symptoms, and depression. At a December 2011 VA examination for respiratory disability, the Veteran reported previously working as a computer analyst/programmer. He reported breathing troubles interfered with his sleep resulting in him dosing off at work. He reported frequent coughing fits at work. At a May 2014 VA treatment visit, the Veteran’s chief concern was fatigue. The Veteran reported low energy and daytime somnolence. The clinician opined the Veteran’s major complaints of fatigue and somnolence were related to his OSA. A March 2017 VA examination assessed chronic bronchitis. The Veteran reported sensitivity to dust or perfumes caused coughing spells and difficulty breathing. He reported fatigue related to his bronchitis. He reported requiring nebulizer treatments at office visits every two or three months. He reported no recent hospitalizations or requiring supplemental oxygen. The clinician stated the impact of the Veteran’s respiratory disability on employment was limited lifting and walking. He opined that desk work would not be contraindicated. The clinician noted COPD exacerbations requiring a doctor’s office visit every two months would require punctual sick leave. A May 2017 private vocational assessment stated the Veteran last worked in October 1998, until his respiratory symptoms became severe enough to interfere with his ability to maintain a regular and predictable schedule resulting in excessive unscheduled absences. The evaluator stated the Veteran’s past work was highly skilled in nature. He stated his occupation required high levels of reasoning, mathematical ability, and language skills. The evaluator noted the Veteran provided a long list of medications and reported the medication side effects of significant grogginess, interruption of concentration, and daytime sleepiness, which negatively impacted his ability to maintain the pace and production. The evaluator noted the Veteran suffered from additional non-service-connected conditions, but it was his opinion that the symptoms associated with his respiratory disability and side effects are significantly limiting. The evaluator concluded the Veteran was incapable of maintaining substantial gainful employment at any level due to his chronic symptoms and medication needs. The evaluator stated the Veteran was currently experiencing significant chronic daytime fatigue, shortness of breath, difficulty concentrating, difficulty maintaining a schedule, and interruption to his ability to perform daily activities of living that require any sort of physical capacity. The evaluator concluded due to these chronic symptoms, the Veteran has been unable to maintain substantially gainful employment on a regular and consistent basis since October 1998. An August 2020 private vocational assessment noted the Veteran reported he lost various jobs in IT due to his pulmonary conditions, which caused chronic sleep deprivation and fatigue, which caused him to not meet the competitive standards in the workplace. She noted his past work as a computer programmer is highly skilled work. She stated the field of computer programming had changed considerably since the Veteran last worked in 1998, 22 years ago. Therefore, he would not have the competitive skills for his prior occupation. She stated that due to respiratory symptoms resulting in difficulty with concentration and working on technical tasks, these employment requirements would not be within his capacities. She concluded the Veteran was not capable of obtaining and maintaining substantial gainful employment since 1998 due to his pulmonary symptoms and side effects of medications. A September 2020 VA pulmonary specialist was asked to opine whether it was at least as likely as not the medications used since August 1, 1998 to treat the Veteran’s chronic bronchitis variant of COPD caused, either individually or collectively, chronic daytime hypersomnolence, drowsiness, or sedation. The clinician stated the patient had a long-standing history of chronic pulmonary disease, including episodes of upper and lower respiratory infections, asthma exacerbations, and exacerbation of chronic bronchitis. The clinician noted the patient was treated with many different regimens that can broadly be divided into chronic maintenance therapy and treatment for acute flares of his lung problems. The clinician noted the medications used for acute flares included systemic steroids (like Prednisone) and antibiotics (like Augmentin, Cefuroxime, Cefpodoxime Proxetil, Biaxin, Doxycycline). The clinician noted the medications used for chronic maintenance therapy of this pulmonary conditions included: inhaled short acting bronchodilators (like Albuterol or Ipratropium); inhaled long acting anti-cholinergic agents (like Tiotropium); inhaled long acting beta-agonists (like Formoterol, Salmeterol); and inhaled steroids (like Fluticasone, Budesonide). The clinician stated these classes of medications have been used for decades and based on the literature available, it is highly unlikely the use of any of the medications in the above classes that the patient was prescribed would contribute individually or collectively to chronic daytime hypersomnolence, drowsiness, or sedation. The clinician opined the patient had other medical problems that have a much higher likelihood of causing chronic daytime hypersomnolence, drowsiness, or sedation, to include a diagnosis of OSA and periodic limb movement disorder, a history of drinking two to three alcoholic beverages a night, medications used to treat a long-standing history of musculoskeletal problems, medications used to treat a long-standing history of depression, and medications used to treat an intermittent history of skin problems including eczema and dermatitis. The question for the Board is whether there is competent and probative evidence showing the Veteran’s chronic bronchitis variant of COPD alone prevented him from securing or maintaining substantial gainful employment. The Board recognizes that the Veteran’s service-connected chronic bronchitis variant of COPD may have resulted in some occupational impairment and inconvenience in the workplace; however, he is being compensated for those limitations, as the percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from service-connected disabilities and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Based on the competent and probative evidence, the Board finds the Veteran’s service-connected chronic bronchitis variant of COPD did not prevent him from securing or following substantial gainful employment. The Board finds the Veteran’s chronic bronchitis variant of COPD would prevent the Veteran from working in an environment with concentrated irritants or fumes. Resolving reasonable doubt in the Veteran’s favor, the Board finds his chronic bronchitis variant of COPD would prevent him from performing work that required walking more than two or three blocks at a time, lifting over 20 pounds, or taking more than a flight of stairs at a time. See September 2005 VA examination and March 2017 VA examination. The Board does not find the Veteran’s chronic bronchitis variant of COPD would prevent him from performing substantial gainful employment in an office setting that would permit him to sit for a majority of the workday or sit at will. The Veteran’s education and work history demonstrate a cognitive ability to understand and carry out simple to moderately complex instructions. The Board finds the Veteran’s chronic bronchitis variant of COPD would not prevent him from performing substantial gainful employment, for example, in data entry, as a customer service agent, or a dispatcher. The Board considered the Veteran’s contention that the medications used to treat his chronic bronchitis variant of COPD cause daytime drowsiness and sleepiness. The Board gives probative weight to the September 2020 VA medical opinion finding it is highly unlikely the use of any of the medications prescribed to treat his chronic bronchitis variant of COPD would contribute individually or collectively to chronic daytime hypersomnolence, drowsiness, or sedation. The clinician found it was more likely related to his non-service-connected disabilities and medications used to treat his non-service-connected disabilities. The clinician is a pulmonary specialist and the opinion was based on an accurate medical history, to include discussion of the Veteran’s medication treatment history and medical history. The finding is consistent with a May 2014 VA treatment visit finding that the Veteran’s fatigue and somnolence were likely related to his OSA. The Board gives this finding probative weight because it was provided by a treating physician who was assessing the cause of the Veteran’s fatigue. The finding is consistent with medication side effect articles submitted by the Veteran showing medications used to treat non-service-connected disabilities can cause drowsiness, to include Fluoxetine, Tamsulosin, Methotrexate, and pain medications. The Board considered whether the Veteran’s chronic bronchitis variant of COPD symptoms would impact his mental ability to perform occupational activities, such as reduced concentration, reduced reliability or productivity, or excessive absences. The Board gives probative weight to the frequency of treatment visits and the Veteran’s lay statements made at his treatment visits. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In October 1998, the Veteran reported chronic bronchitis with flares from time to time. A July 1999 VA treatment visit reported on and off bronchitis. The majority of routine treatment visits reported COPD was stable and continued his medication regime. See December 1998, February 1999, October 1999, September 2000, December 2000, August 2001, April 2002, August 2002, March 2003, June 2006, March 2007, January 2008, October 2009, and May 2012 treatment visits. Treatment records indicated respiratory flare-ups occurred on average zero to three times a year. See October 1998, December 1998, April 1999, May 1999, November 1999, May 2000, February 2004, December 2005, May 2006, December 2006, March 2007, June 2010, May 2011, September 2011, January 2012, March 2012, April 2013, June 2013, August 2016, September 2016, and September 2017 treatment visits. The September 2017 private treatment visit noted a medical history of stable COPD. This is consistent with the Veteran reporting two to three infectious respiratory episodes per year at the September 2005 VA examination and reporting nebulizer treatments every two or three months at the March 2017 VA examination. Recent primary care visits in November 2017, December 2017, September 2018, February 2019, May 2019, and April 2020 did not complain of respiratory flare-ups. The Board finds the severity and frequency of the Veteran’s chronic bronchitis variant of COPD symptoms would not prevent him from mentally performing substantial gainful employment. The Board gives low probative weight to the May 2017 and August 2020 vocational assessments concluding the Veteran’s chronic bronchitis variant of COPD alone prevented substantial gainful employment. These assessments relied on the Veteran’s statements describing the symptoms and side effects of his chronic bronchitis variant of COPD and medications. The Veteran is competent to report symptoms of sleepiness, drowsiness, reduced concentration, and reduced productivity, but he is not competent to opine on the etiology of those symptoms, as that requires medical expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, as noted above, the Board gives more probative weight to the September 2020 VA medical opinion stating the Veteran’s daytime hypersomnolence, drowsiness, or sedation was not likely related to his service-connected chronic bronchitis variant of COPD medications, but more likely related to his non-service-connected disabilities and medications used to treat his non-service-connected disabilities. The Board gives more probative weight to the Veteran’s treatment visits and lay statements made at treatment visits in assessing whether the Veteran’s chronic bronchitis variant of COPD alone prevented substantial gainful employment. The Board considered the May 1999 private physician letter that stated, “It is my opinion that his health problems are interfering with his ability to do his normal work as a computer consultant.” The physician also filled out a May 1999 Attending Physician Statement form that noted a diagnosis of chronic bronchitis asthma and lumbosacral strain, with the symptoms of shortness of breath, coughing, wheezing, and low back pain. The Board gives low probative weight to this evidence when evaluating whether the Veteran is entitled to a TDIU. The May 1999 statement is a conclusory statement without rationale. Even if considered in combination with the May 1999 Attending Physician Statement, the evidence references both chronic bronchitis and low back disability. Therefore, it is not probative in determining whether the Veteran’s chronic bronchitis variant of COPD alone prevented substantial gainful employment. The Board gives low probative weight to the April 1999 SSA psychological examination opinion that the Veteran’s physical and mental disabilities would present significant difficulties with carrying out majority of jobs for which he is best suited. At the examination, the Veteran reported severe health problems, including depression, COPD, low back pain, tightness in neck and shoulders, and kidney problems. As the opinion takes into consideration both service-connected and non-service-connected disabilities, this evidence is not probative in determining whether chronic bronchitis variant of COPD alone prevented substantial gainful employment. The Board considered the Veteran’s award of SSA disability benefits. SSA regulations provide a helpful but not binding or determinative analogy to interpreting a VA regulation. Faust v. Wet, 13 Vet. App. 343, 356 (2000). SSA’s legal criteria for assessing disability for SSA benefits differs in important respects from VA’s own framework for determining claims. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). For example, SSA considered the Veteran’s advanced age and non-service-connected disabilities in granting the disability claim. The Board may not consider advancing age or non-service-connected disabilities in a TDIU claim. As such, this evidence is not probative in determining whether chronic bronchitis variant of COPD alone prevented substantial gainful employment. In March 2021, the Veteran’s representative submitted electricity company documentation showing the Veteran’s electricity usage was 27 percent greater than similar homes. The representative contended the evidence documented the additional electricity required to power two additional air filters that the Veteran needs to breath. The representative stated the Veteran needs this level of air filtration just to breath and most places do not have this level of air filtration. The Board gives this evidence low probative weight. This is not competent evidence that the Veteran’s chronic bronchitis variant of COPD requires air filtration beyond what can be provided in an office work setting. Lastly, the Board considered the January 2018 Board decision that referred the TDIU claim to the Director. A referral decision under 38 C.F.R. § 4.16(b) is a factual finding based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. Ray v. Wilkie, 31 Vet. App. 58, 65-67 (2019). Here, the initial referral indicated there was plausible evidence of unemployability citing to the Veteran’s lay statements and a vocational expert assessment. The language of the initial referral indicated a possibility of unemployability and did not discuss the competency or credibility of the referenced evidence. Since the January 2018 initial referral, the Board obtained evidence showing the evidence was not probative in determining whether the Veteran’s chronic bronchitis variant of COPD prevented him from securing or following substantially gainful employment. The Board notes the Veteran has contended entitlement to service connection for OSA and depression, secondary to chronic bronchitis variant of COPD. See November 2020 claim. The Veteran has an open appeal for service connection for OSA. See December 2020 rating decision. VA requested the Veteran submit his claim to reopen his appeal for service connection for depression on a VA Form 20-0995, Decision Review Request: Supplemental Claim. See December 2020 correspondence. Therefore, the Board could not consider these disabilities in relation to his TDIU claim. (Continued on the next page)   In conclusion, as the Board finds the Veteran’s service-connected chronic bronchitis variant of COPD did not preclude substantially gainful employment, entitlement to a TDIU on an extraschedular basis is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.