Citation Nr: 21023852 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-06 112 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from September 17, 2018 is granted. REMANDED Entitlement to a disability evaluation in excess of 10 percent for left knee chondromalacia is remanded. Entitlement to a disability evaluation in excess of 10 percent for right knee strain with chondromalacia is remanded. Entitlement to service connection for chronic fatigue syndrome, to include a sleep disorder, is remanded. Entitlement to a disability evaluation in excess of 50 percent for major depressive disorder with unspecified trauma is remanded. FINDING OF FACT From September 17, 2018, the Veteran’s service-connected disabilities precluded gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW From September 17, 2018, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1994 to March 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2014, March 2016, and April 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. TDIU Criteria A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from September 17, 2018 In the present case, the Veteran filed a claim for entitlement to TDIU in January 2018. However, the record shows the Veteran’s last day of work occurred on September 17, 2018. The Veteran is service-connected for the following disabilities: major depressive disorder, rated at 50 percent; tinnitus rated at 10 percent; left knee chondromalacia rated at 10 percent; right knee strain with chondromalacia rated at 10 percent; acne keloidalis of the scalp, rated at 10 percent; and a noncompensable rating for left ear hearing loss. His combined disability evaluation is 70 percent. Accordingly, he meets the threshold set forth under 38 C.F.R. § 4.16 (a). The Veteran’s VA Form 21-8940, submitted in January 2018, indicated that he worked for the United States Postal Service (USPS) since May 1999 and was a high school graduate. Additional evidence submitted by the Veteran, including a document completed by a USPS Retirement Technician, show that the Veteran’s last day of work was September 17, 2018, and that he had to retire due his disabilities. The Veteran underwent VA examinations for his knee and psychiatric disabilities in February 2018. The Veteran reported that he was suspended several times due to arriving late to work or being unable to work at all. Each examiner provided TDIU statements. Regarding the Veteran’s knee disabilities, the examiner determined that the Veteran was unable to perform sedentary work. The psychiatric examiner noted that the Veteran has difficulty attending to or is easily distracted from tasks, has disrupted sleep that causes fatigue at work which makes concentration and focus on work difficulty, and is so depressed that he has difficulty sustaining energy and motivation to complete work assignments. Additionally, the Veteran submitted a December 2018 letter and an August 2019 mental health statement form from his private therapist. The therapist stated that based on the Veteran’s symptoms, he could not meet the challenges of a daily work schedule on any level. Based on the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that his service-connected major depressive disorder and bilateral knee disabilities precluded him from maintaining substantially gainful employment that is consistent with his education and occupational experience from the date of his last day of full-time employment, September 17, 2018. In this regard, the Veteran has worked for USPS for his entire post-military service career. At the February 2021 Board hearing, the Veteran reported that he had trouble concentrating and dealing with the high stress of his job. He stated he was easily irritated, and he constantly had to leave work. The Board finds that the Veteran is not capable of substantially gainful employment due to his service-connected disabilities from September 17, 2018. Accordingly, a TDIU is warranted from September 17, 2018. REASONS FOR REMAND 1. Entitlement to a disability evaluation in excess of 10 percent for left knee chondromalacia is remanded. 2. Entitlement to a disability evaluation in excess of 10 percent for right knee strain with chondromalacia is remanded. A remand is necessary to afford the Veteran a VA examination to determine the current severity of his bilateral knee disabilities. A review of the record suggests that his condition have worsened in severity since the last VA examination in February 2018. At the Board hearing the Veteran reported that his knees are worsening, and that he uses knee braces and experiences buckling. As the evidence indicates a possible worsening of the Veteran’s bilateral knee disabilities, a new examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 3. Entitlement to a disability evaluation in excess of 50 percent for major depressive disorder with unspecified trauma is remanded. A remand is necessary to afford the Veteran a VA examination to determine the current severity of his major depressive disorder. A review of the record suggests that this condition has worsened in severity since the last VA examination in February 2018. The Veteran testified at the Board hearing that he self-isolates due to his depression, and he submitted private mental health treatment notes indicated his symptoms may have worsened. As such, the Veteran must be scheduled for a new VA examination to assess the current severity of his major depressive disorder. 4. Entitlement to service connection for chronic fatigue syndrome is remanded. First, the Board notes that the issue on appeal has been broadened to include entitlement to service connection for chronic fatigue syndrome, to include a sleep disorder. Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). The Veteran initially sought service connection for chronic fatigue syndrome. He claimed that the condition was the result of an undiagnosed illness caused by service in the Southwest Asia theater during the Gulf War. A VA medical opinion was provided in June 2014. The examiner opined that it was less likely as not that the Veteran has chronic fatigue due to a Gulf War undiagnosed illness. He stated that the Veteran presents with other conditions which cause fatigue, like depression and a sleep disorder, and has no criteria to meet diagnosis of chronic fatigue. Remand is necessary to determine if the Veteran has a sleep disorder diagnosis that is the result of or aggravated by his service-connected disabilities, or due to medications used to treat his service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records and associate them with the claims file. 2. Schedule the Veteran for an examination to determine the current severity of his bilateral knee disabilities. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing for both knees. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (b.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination to determine the current severity of his service-connected major depressive disorder. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the Veteran’s major depressive disorder alone. 4. Schedule the Veteran for an examination to determine the nature and etiology of any chronic fatigue syndrome and/or sleep disorder. The electronic claims file must be made available to the examiner for review, and the examination must reflect that such review has been accomplished. All appropriate testing should be conducted. (a.) The examiner must provide an opinion with sufficient support rationale as to whether it is as likely as not (that is, a probability of 50 percent or greater) that any chronic fatigue syndrome or sleep disorder are secondary to or aggravated by any of his service-connected disabilities, including medication used to treat his service-connected disabilities. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.