Citation Nr: 21027338 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-60 463 DATE: May 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The probative evidence of record shows that the Veteran's service-connected conditions preclude him from following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to March 1971. The appeal to the Board of Veterans' Appeals (Board) arose from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2017, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. In December 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's denial and remanded the above referenced issues to the Board pursuant to a joint motion for remand (JMR). Entitlement to a TDIU TDIU is assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. 38 C.F.R. § 4.16(a). For these purposes, disabilities of common etiology are considered a single disability. Id. Even if the Veteran is unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. 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. See 38 C.F.R. § 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). Service connection is in effect for obstructive sleep apnea (OSA) with a 50 percent evaluation from June 18, 2015, generalized anxiety disorder with a 50 percent evaluation from March 12, 2020, bilateral hearing loss with a 10 percent evaluation from April 24, 2013, and tinnitus with a 10 percent evaluation from April 24, 2013. His service-connected disabilities meet a combined rating of 60 percent disabling from June 18, 2015, and of 80 percent disabling from March 12, 2020. As such, the Veteran meets the percentage requirements for TDIU as of March 12, 2020. 38 C.F.R. § 4.16(a). In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the United States Court of Appeals of Veterans Claims (Court) held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Turning to the evidence of record, at an April 2013 visit the Veteran reported being fired from his job. He had a lawsuit pending against his former employer. At a September 2013 visit at the VAMC, he reported being unemployed and recently interviewing for a job as a security guard. At a respiratory examination in March 2014, the Veteran was noted to have asthma. The functional impact was that he was unable to do strenuous activity such as walking more than 10 minutes at a time. At the July 2014 audio examination, the functional impact of tinnitus was noted to be general aggravation or annoyance. The functional impact of his hearing loss was difficulty hearing television at a normal level, difficulty hearing over the phone, or hearing background noise with multiple speakers. In an August 2014 statement, the Veteran wrote that he had to stop working as a basketball official due to his asthma. At the July 2016 sleep apnea examination, the impact of the sleep apnea on his ability to work was frequent daytime sleepiness that affected alertness while driving. At the July 2017 Board hearing, the Veteran reported having to give up his part-time job in November 2013 due to his asthma. According to a September 2018 application for TDIU, the Veteran reported working for the Nacogdoches Housing Authority as an inspector from May 1990 to July 2012. He indicated his asthma and sleep apnea prevent him from securing or following any substantially gainful occupation. In a completed 21-4192, the Veteran was noted to have worked from 1990 to July 2012 doing housing inspections. The reason for termination of employment was identified as non-performance of duties. Buddy statements were submitted on the Veteran's behalf, detailing that the Veteran's asthma has affected his daily life. In an August 2018 statement from the Section 8 Coordinator for the Nacogdoches Housing Authority, L. E. stated that the Veteran suffered from asthma attacks that became worse over the years. In September 2018, the Veteran underwent an OSA and asthma examination. The functional impact of his sleep apnea was noted to be difficulty with daytime hypersomnolence and fatigue along with decreased concentration, irritability, and memory loss related to interrupted sleep patterns. These result in the need for frequent rest breaks, missed shifts, and tardiness, which leads to decreased productivity and efficiency. The examiner then stated his OSA with asthma impacts his ability to concentrate at work due to fatigue. He also easily falls asleep at work. As for his asthma the examiner indicated his asthma flares up and will decrease his work productivity and efficiency related to breathlessness and easy fatigue with low endurance during physical activity. These flare ups require the Veteran to frequently take rest breaks to recover and take rescue medications. In January 2019, the Board remanded the TDIU issue for additional developmentincluding referral to the Director, Compensation Service for extraschedular consideration. In November 2019, a determination was made by the Executive Director of Compensation Service. The Director explained that the fact that the Veteran is unemployed or has difficulty obtaining employment is not enough to establish entitlement to a TDIU. A high rating in itself recognizes that the impairment makes it difficult to obtain and keep employment. Entitlement to TDIU can only be granted when a Veteran's inability to maintain gainful employment is due to service-connected disabilities. Any service-connected disability can be expected to impart some impairment in performing gainful employment, but simply having some impairment does not equate to a total disability. The rating schedule is assumed to adequately compensate for loss of earning capacity. For an extraschedular grant of TDIU, the majority of the evidence should clearly support that the service-connected disabilities are by themselves the cause of the Veteran's inability to obtain and maintain gainful employment. The September 2018 examination showed a diagnosis of asthma and with treatment the Veteran has a FEV-1/FVC of 95 percent. It was noted the Veteran uses a CPAP machine. It is clear the Veteran reports dyspnea and fatigue on exertion, but the evidence does not show the Veteran is precluded from more sedentary employment. The American workplace has had a dramatic shift in the labor force over the last several decades. It has long been known that Americans are more sedentary at work comparted with the farming and manufacturing workers years ago. There are many jobs in today's workplace that are sedentary or require only light activity and for which a person with a high school education would be capable of performing. After giving consideration to all relevant evidence, the Director of Compensation Service determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevent gainful employment. In September 2020, the Veteran underwent a psychiatric examination and was diagnosed with generalized anxiety disorder. He was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. He reported attending college at SFASU after discharge and then worked for a telephone company for several years. He was fired in 1987, which he attributed to anger management. He drove a school bus then worked for a city housing association as an inspector for over 20 years. He had further problems with conflict with a supervisor toward the end of his career, leading him to retire. He has a depressed mood, anxiety, panic attacks, sleep impairment, disturbances of motivation. On examination his thought process was slightly tangential, and he required some minor redirection. The examiner noted the Veteran's sleep apnea results in significant declines in his energy level and poor sleep quality, which contribute to his mood swings. He reported difficulty breathing when he worries, which is above and beyond simple symptoms of anxiety. He then is afraid he is having a heart attack or asthma attack which in turn further exacerbates his anxiety. The general malaise caused by his sleep apnea further worsens his rumination and worry. In December 2020, the RO granted service connection for generalized anxiety disorder with a 50 percent evaluation effective March 12, 2020. The Board acknowledges the opinions of record indicating the Veteran's service- connected conditions have no impact on his ability to work. However, the ultimate unemployability determination is a legal one. See Geib v. Shinseki, 733 F.3d at 1354. Though the Veteran has experience as a basketball official and housing inspector, he last worked in 2013. There remains no indication the Veteran has an occupational background that would apply to a sedentary occupation. See also Withers v. Wilkie, No. 16-1543 (Vet. App. Aug. 10, 2018). Further, his psychiatric symptoms would interfere with any employment be it sedentary or physical. As is stated above, he has motivation issues which would interfere with his ability to work be it from home or in an office setting. It is clear from the record his sleep apnea and anxiety significantly impact his overall health, and ability to obtain and maintain substantially gainful employment. Dominant symptoms of frequent daytime sleepiness, shortness of breath, irritability, and disturbances of motivation, each contribute to his ability to obtain employment. The Veteran has consistently reported his service-connected conditions have an impact on his ability to secure employment. Based on his work history, the realistic chance of his obtaining and maintaining substantial gainful employment is low. The Board concludes the criteria for an award of TDIU benefits are met. The Board will not assign an effective date for the award of TDIU and will allow the RO to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curium order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating"). The most probative evidence of record indicates that because of his service-connected conditions he is not capable of performing physical or sedentary employment. The Board concludes the criteria for an award of TDIU benefits are met. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.