Citation Nr: 21031874 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-63 894 DATE: May 24, 2021 ORDER Subject to the law and regulations governing payment of monetary benefits, entitlement to a total disability rating based on individual unemployability is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The evidence of record supports a finding that the Veteran's service-connected conditions, including PTSD and diabetes mellitus with peripheral neuropathy, have rendered him unable to secure and follow substantially gainful employment throughout the pendency of this claim. CONCLUSION OF LAW The criteria for TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to June 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2016 rating decision, the RO denied entitlement to individual unemployability. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2020. A transcript of the proceeding is of record. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. The Veteran seeks a TDIU. He contends his service-connected disabilities, including PTSD and diabetic neuropathy, render him unemployable. A TDIU may be assigned, where the schedular rating is less than total, where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, 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. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: PTSD, rated at 70 percent disabling; diabetes mellitus, rated at 20 percent disabling; peripheral neuropathy for the right and left lower extremities, rated at 20 percent disabling for each; peripheral neuropathy of the right and left upper extremities, rated at 10 percent disabling for each; chondromalacia of the right knee, rated at 0 percent disabling; post-operative residuals, left medial meniscectomy, rated at 0 percent disabling; and erectile dysfunction associated with diabetes mellitus type 2, rated at 0 percent disabling. His combined rating was 90 percent from December 2015. Based on the forgoing, the Veteran has one disability rated 60 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran attended one year of trade school in air conditioning and refrigeration. For the majority of his working years, he worked as a shipping traffic manager and as a trucking salesman. In 2015, he worked parttime as an umpire. The Veteran testified that he had no other specialized training, and that he had been let go from a few jobs due to limited motivation and anger outbursts, which occurred due to his worsening PTSD. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his diabetic neuropathy. He testified that he stopped working in 2015 due to his neuropathy, as he was unable to be on his feet. The Veteran was working parttime as an umpire, which he testified was the only job he could find. The Veteran's lower body peripheral neuropathy was noted in an April 2017 VA examination to include incomplete paralysis of both his left and right lower extremities, with severity rated as moderate. The examiner noted that the Veteran's symptoms worsened with standing and walking, and concluded that the Veteran's peripheral neuropathy impacted his ability to work, as he would have a difficult time performing physically challenging tasks or tasks requiring prolonged walking or standing. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his PTSD. The Veteran testified to his anger issues due to his PTSD, which prevents appropriate social interaction and makes work interactions difficult. The Veteran was granted an increased rating for his PTSD following a February 2016 VA examination. The examiner noted that the Veteran had difficulty adapting to stressful circumstances, including work or a work-like setting. The examiner stated that the Veteran had stopped working due to a foot injury but found that the Veteran's PTSD symptoms resulted in impaired functioning that impacted his ability to secure and maintain employment. In August 2020, the Veteran's mental health provider noted that the Veteran had attempted to remediate his PTSD symptoms, but his condition had not improved. She stated that his PTSD continued to be an impediment to his securing and maintaining gainful employment, and that his PTSD symptoms have continued to directly impact his functioning in social, professional, and interpersonal settings. Given the persuasive medical observations identified in the VA reports and psychological treatment records and upon review of the evidence as a whole, the Board finds that the preponderance of the evidence supports the grant of TDIU. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that his obstructive sleep apnea is caused or aggravated by his service-connected PTSD. A VA examination was completed in March 2017. While the examiner provided an opinion as to whether the Veteran's obstructive sleep apnea was proximately due to or the result of PTSD, the examiner did not provide an opinion as to whether the Veteran's service-connected PTSD had aggravated the Veteran's obstructive sleep apnea. Remand is necessary to obtain another opinion. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). The matters are REMANDED for the following action: 1. Provide the Veteran's claims file to an appropriate clinician and obtain an addendum opinion that explains whether it is at least as likely as not that the Veteran's service-connected PTSD, including its treatment, aggravated the Veteran's obstructive sleep apnea beyond its natural progression. If the examiner determines the Veteran's obstructive sleep apnea is aggravated by the Veteran's service-connected PTSD, the examiner should state the baseline level of severity of the sleep apnea, and describe the extent to which the condition was permanently worsened by the Veteran's service-connected PTSD. 2. A rationale should be provided for all opinions expressed. The examiner must connect all opinions made to the evidence of record and any medical literature referenced. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.