Citation Nr: 21027100 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 12-34 342 DATE: May 4, 2021 ORDER For the periods from May 4, 2010 to September 5, 2012 and from November 26, 2013 to June 27, 2018, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The preponderance of the evidence indicates that the Veteran's service-connected disabilities have rendered her unable to secure or follow a substantially gainful occupation for the entire period on appeal. CONCLUSION OF LAW For the periods from May 4, 2010 to September 5, 2012 and from November 26, 2013 to June 27, 2018, the criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1981 to December 1984, from January to May 1991, from November 2002 to July 2003, and from July 2006 to May 2010. In a July 2019 decision, the Board remanded the Veteran's claim for additional development. The Board finds that the RO substantially complied with its remand directives, and it may now proceed with adjudication. The Veteran testified before a different Veterans Law Judge (VLJ) at a February 2017 hearing before the Board of Veterans' Appeals (Board). In February 2021, VA sent the Veteran a letter informing her that the VLJ who had conducted her hearing was no longer available. The letter informed the Veteran of her right to request another Board hearing. The Veteran did not respond within 30 days of the date of the letter; therefore, the Board will assume she does not want another hearing and will proceed with adjudication. Additionally, the Board notes that the present claim for TDIU dates to the Veteran's original March 2010 claim for service connection for multiple disabilities, which were appealed when the Veteran disagreed with the disabilities ratings assigned in the October 2010 rating decision issued by the Regional Office (RO). The Veteran asserts her their service-connected disabilities render her unable to secure or follow a substantially gainful occupation. VA will grant TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.40, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The 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, 361 (1993). If there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran fails to meet these criteria, an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). In this case, the Veteran meets the criteria for schedular consideration for TDIU for the entire period on appeal. See June 2020 codesheet. For the periods from May 4, 2010 to September 5, 2012 and from November 26, 2013 to June 27, 2018, the Veteran's combined disability evaluation is 90 percent. For the periods from September 5, 2012 to November 26, 2013 and from June 27, 2018 to the present, the Veteran is already in receipt of combined disability ratings of 100 percent. The Veteran filed a pre-discharge claim for compensation for multiple disabilities in March 2010. During the Veteran's July 2010 VA examination for psychiatric conditions, the VA examiner found that her symptoms included sleep impairment, irritability, concentration problems, hypervigilance, and an exaggerated startle response. During the Veteran's August 2010 VA examination for eye conditions, the VA examiner found that the Veteran experienced chronic dry eyes, which caused some interference with activities like driving. During a December 2010 VA examination for foot conditions, the VA examiner found that her service-connected foot disability would have significant effects on her ability to work, with moderate to severe effects on most daily activities such as shopping, exercising, and driving. A November 2014 Disability Benefits Questionnaire (DBQ) indicates that the Veteran experienced chronic gastroesophageal reflux disease (GERD). During the Veteran's April 2015 VA examination for sleep apnea, the VA examiner noted persistent daytime hypersomnolence; however, they found no effect on her ability to work. During the Veteran's April 2015 VA examination for PTSD, the VA examiner noted her symptoms included depression, anxiety, chronic sleep impairment, and disturbances of mood and motivation. The VA examiner found that while the Veteran's symptoms contributed to periods of low motivation, her PTSD and depression did not cause functional impairment that limited her ability work. In a November 2014 TDIU application, the Veteran asserted that she became too disabled to work on the day she ended her active service in May 2010. During the Veteran's November 2015 VA examination for headaches, the VA examiner found that her headache disability did not result in functional impact on her ability to work. During her February 2017 Board hearing, the Veteran testified that her service-connected disabilities caused her significant physical difficulties with activities such as standing, walking, and exercising. She experienced chronic sleep deprivation, breathing problems, and other health difficulties due to her service-connected disabilities. In a June 2017 TDIU application, the Veteran testified that her last employer was the US Army, and she believed her knee, back, neck, and PTSD disabilities prevented her from working. During the Veteran's June 2017 VA examination for back conditions, the VA examiner found that the Veteran's degenerative arthritis of the spine caused her to be unable to sit or stand for long periods of time. They found that the Veteran might be able to work in an office job with a desk with adjustable height. During the Veteran's June 2017 VA examination for knee conditions, the VA examiner found that the Veteran's knee disabilities caused her to be unable to stand or walk for long periods of time. Doing so caused her knee to hurt and swell; however, the examiner found that her knee disabilities did not preclude gainful employment. During the Veteran's June 2017 VA examination for neck conditions, the VA examiner found that the Veteran's cervical spine disabilities caused her neck pain and decreased range of motion, which affected her ability to work. During the Veteran's July 2017 VA examination for PTSD, the VA examiner found that her disabilities resulted in occupational and social impairment with occasional decrease in work efficiency. Her symptoms included depression, anxiety, chronic sleep impairment, mild memory loss, and disturbances of mood and motivation. During the Veteran's June 2018 VA examination for foot conditions, the VA examiner found that her shoulder disabilities caused pain on use of the upper extremities and limitation of range of motion. The examiner noted that the Veteran reported not working since 2010 due, in part, to her shoulder conditions. During the Veteran's June 2018 VA examination for shoulder conditions, the VA examiner found that her foot disabilities caused pain on weight-bearing, disturbance of locomotion, and interference with standing. The examiner noted that the Veteran reported not working since 2010 due to her foot conditions. The Board has reviewed the medical evidence of record and finds that it strongly supports finding that the Veteran has been unable to secure or follow a substantially gainful occupation due to her service-connected disabilities for the entire period on appeal. Accordingly, the claim for TDIU is granted. As an additional matter, the Board notes that entitlement to special monthly compensation (SMC) is not raised by the record for the periods from September 5, 2012 to November 26, 2013 and from June 27, 2018 to the present, when the Veteran was awarded 100-percent combined disability ratings. SMC is warranted if a veteran has a service-connected disability rated as total and has additional service-connected disabilities independently rated as 60 percent or more, or by reason of such service-connected disabilities is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran has been awarded service-connection for multiple disabilities, with her obstructive sleep apnea with asthma, PTSD with major depression disorder, and bilateral plantar fasciitis with calcaneal spurs being the most severe disabilities; however, none of the disabilities are rated higher than 50 percent disabling. Based on its review of the record, the Board finds that no single disability results in the Veteran being unable to secure or follow a substantially gainful occupation; rather, it is the combination of these disabilities that result in her inability work. The Veteran's disabilities include musculoskeletal disabilities, psychiatric disabilities, sleep disorders, and other medical disabilities, all of which contribute to her inability to work. Accordingly, the Board finds that entitlement to SMC has not been raised by the record. Finally, the Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.