Citation Nr: 21039811 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-34 101 DATE: July 1, 2021 ORDER A total disability based on individual unemployability (TDIU) is granted. Entitlement to education benefits under Chapter 35 of Title 38, U.S.C., also known as the dependents educational assistance (DEA) benefits, is granted. FINDINGS OF FACT 1. The Veteran's service-connected disabilities have precluded him from following or maintaining substantial gainful employment. 2. The Veteran has been found to have a total and permanent disability by reason of his service-connected disabilities for purposes of the grant of DEA benefits. CONCLUSIONS OF LAW 1. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 2. The criteria for entitlement to DEA benefits are met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. §§ 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1979 to February 1986. The case is on appeal from a July 2014 rating decision. The case was most recently before the Board in April 2020. At that time, the Board granted service connection for obstructive sleep apnea. The Board also denied the claims of service connection for cervical and lumbar spine disabilities, diabetes mellitus, and a higher rating in excess of 30 percent for service-connected pulmonary sarcoidosis. As the Veteran did not appeal the decision to the United States Court of Appeals for Veterans Claims (Court), the Board's decision is final. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1100. The Board also remanded the issues of entitlement to TDIU and DEA benefits, including referral of the issue of a TDIU to the Director, Compensation Services in compliance with 38 C.F.R. § 4.16(b) for consideration in the first instance as to whether a TDIU on an extraschedular basis was warranted. 1. TDIU In a February 26, 2013 VA Form 21-0820, the Veteran contacted VA to communicate his desire to establish a claim of service connection for mental health disorders and for a TDIU, by indicating that his PTSD and associated symptoms precluded him from securing or following substantially gainful employment. On that date, VA mailed the Veteran a VA Form 21-8940 (Application for a TDIU) which was completed and received by VA on March 5, 2013. In its April 2020 remand, the Board observed that the Veteran failed to meet the criteria for a TDIU on a schedular basis at that time. Hence, the matter was referred to the Director, Compensation Services for consideration of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). A decision denying the benefit sought was received in December 2020 and the claimed was returned to the Board for subsequent appellate review. While pending appellate review, in a June 2021 rating decision, the RO increased the Veteran's PTSD from 30 percent to 50 percent effective February 26, 2013. The rating action resulted in a combined disability rating of 70 percent from February 26, 2013. Accordingly, the Veteran now meets the criteria for a TDIU on a schedular basis for the entire appeal period beginning on March 5, 2013. See 38 C.F.R. § 4.16(a). (The Veteran has a combined disability rating of 70 percent from February 26, 2013, and of 80 percent from March 21, 2013). Legal criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 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. 38C.F.R. §4.16(a). In addition, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Discussion The Veteran is service-connected for PTSD and persistent depressive disorder rated at 50 percent; sleep apnea with pulmonary sarcoidosis rated at 30 percent prior to March 21, 2013, and 50 percent thereafter; and a noncompensable disability rating for hypertension. The combined rating from February 26, 2013, is 70 percent. Accordingly, the criteria for a TDIU on a schedular basis are met for the entire appeal period. See 38 C.F.R. § 4.16(a). In a March 2013 VA Form 21-8940 the Veteran reported last working full-time as a tire repair person in September 2010, after approximately 11 years, as he became unable to perform the duties required for his position with the United States Postal Service (USPS). As for his education, the Veteran indicated that he only completed two years of high school. The Veteran's post-service occupational experience appears to be limited to employment as a mechanic/tire repair person. The Veteran's education is limited to two years of high school education, a GED, and a certification as a tractor-trailer driver. The Board has considered the conflicting evidence of record and finds that despite his PTSD and associated symptoms were not the underlying and/or direct cause for the Veteran's separation from his 11-year occupation as a tire repair person with the USPS, his mental health disabilities and sleep apnea with associated respiratory complications have precluded him from pursuing a substantially gainful employment ever since. In a June 2014 lay statement, the Veteran indicated that the main reason for his early retirement from the USPS was due to a back, neck, and leg injuries, all three nonservice-connected, and which limited his functional ability and precluded him from meeting the demands of his job. The Veteran further indicated that his separation from work exacerbated other mental health symptoms such as depression, emotional numbness, memory problems, anger outbursts and irritability, jittery, anxiety difficulty with focusing and feeling emotionally detached. The records further reflect that ever since his separation from work in September 2010, his disabilities, especially his mental health disorders, progressed and interfered with his occupational functioning to a greater degree, particularly due to his near continuous depression, anxiety and sleep deprivation either caused by his PTSD-related insomnia or his sleep apnea. According to Dr. K.A.'s March 2013 statement, the aggravation of the Veteran's depression, which resulted in suicidal thoughts, hallucinations and paranoid thinking, prevented him from obtaining other employment. In sum, Dr. K.A. stated that "at this time [the Veteran] is totally and permanently disabled [as] he is unable to obtain any form of employment." While VA treatment records show that the Veteran's symptoms improved to some extent between September 2014 to April 2017, the Board also notes that during that time the Veteran remained under daily and aggressive psychotropic treatment. This in turn is also supported by the March 2021 private examination, which concluded that the Veteran is unable to work by reason of his service-connected PTSD with symptoms such as significantly poor sleep, poor concentration and irritability and other multiple mental limitations, when factored in with his service-connected sleep apnea and pulmonary sarcoidosis with ongoing tiredness from not being able to sleep and his shortness of breath, persistent daytime hypersomnolence, and dyspnea on exertion as also noted in the October 2019 VA examination. In sum, the issue of employability is not a medical issue but a legal one. See Geibv. Shinseki, 733 F. 3d 1350, 1354 (Fed. Cir. 2013). Therefore, in light of the above, and after consideration of the Veteran's individual circumstances, to include his education, training, and work history, the Board finds the combined severity of the Veteran's service-connected disabilities have precluded him from securing or following a substantially gainful occupation as of February 26, 2013, the date VA received his claim for a TDIU. This is particularly so when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Consequently, effective February 26, 2013, a TDIU on a schedular basis is warranted. 2. Entitlement to DEA benefits. For the purposes of educational assistance under 38 U.S.C. § 3500 et seq., the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. In this case, the Board has found that the Veteran has a permanent and total disability evaluation by reason of his service-connected disabilities. Accordingly, the Board finds that the award of basic eligibility for Chapter 35 DEA benefits is also warranted. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan 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.