Citation Nr: 21040017 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-27 581A DATE: July 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.341, 4.1, 4.15, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to January 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue of TDIU was raised as part and parcel of the increased rating claims that were on appeal in the May 2013 rating decision. The case was previously before the Board in August 2020 when it was remanded for further development. As the appeal for entitlement to service connection for an acquired psychiatric disorder was granted by a January 2021 rating decision, the Board no longer has jurisdiction over this issue. Entitlement to TDIU Total disability ratings for compensation may be assigned where the Schedular rating is less than total and the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A higher rating alone is a recognition that the impairment makes it difficult to obtain and maintain employment. The question is whether a 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 (1993). The central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, it is the established policy of VA that all veterans who are unemployable by reason of service-connected disabilities be rated totally disabled, regardless of their combined Schedular rating. The cases of unemployable veterans are submitted to the Director, Compensation Service, for consideration of extraschedular TDIU when they do not meet the Schedular threshold. 38 C.F.R. § 4.16(b). The Veteran meets the schedular criteria for a TDIU to the extent that he had one service-connected disability that was rated as 40 percent disabling and a combined disabling rating of 70 percent. 38 C.F.R. § 4.16. In his September 2020 VA Form 8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that he last worked full-time and became too disabled to work in 2003, due to all of his service-connected disabilities. He indicated that he last worked as a bus operator for the Kansas City Area Transportation Authority and completed one year of college. The Veteran also indicated that he left his last job due to his disability. The Veteran underwent VA examinations in March 2013. A VA sinusitis/rhinitis examiner indicated that there was greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, but that the Veteran's rhinitis and sinusitis conditions did not impact his ability to work. A VA respiratory conditions examiner indicated that the Veteran's condition did not impact his ability to work. The Veteran did complain of intermittent pain and irritation as well as tenderness at the chest tube site, and difficulty breathing. In an April 2016 mental disorders DBQ, Dr. H.H.G., a private psychologist, indicated that the Veteran's depressive disorder resulted in occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and/or mood. His symptoms included memory loss, sleep impairment, and difficulty in establishing relationships and adapting to stressful circumstances. Dr. H.H.G. also noted that the Veteran was socially isolated and withdrawn and did not like crowds. He could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder. An April 2017 VA respiratory conditions examiner indicated that the Veteran's respiratory condition did impact his ability to work, as it impacted strenuous activities. An April 2017 sinusitis/rhinitis examiner indicated that there was complete obstruction on the left side of the nasal passage due to rhinitis. However, his rhinitis and sinusitis did not impact his ability to work. A September 2019 buddy statement from the Veteran's friend indicated that the Veteran had problems handling stress and did not interact with people. He also would lose focus during conversation and did not have motivation to do anything, which caused problems. A statement from the Veteran's wife indicated that the Veteran did not handle stress well and would shut down. He did not trust many people and would not socialize much. He did not comprehend things well anymore, and he would be forgetful. He also lacked motivation. A March 2020 sleep apnea VA examiner indicated that sleep apnea impacted the Veteran's ability to work. He would have difficulty sustaining attention and concentration. The examiner also indicated that the Veteran was struggling using the CPAP because of his sinus issues. On days when he could not use his CPAP, he was miserable. A September 2020 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits completed by the Kansas City Area Transportation Authority indicates that the Veteran worked from June 1978 to November 2003 as a bus operator. The reason for termination of employment was listed as retired on disability, and it was noted that the Veteran was receiving pension benefits. A November 2020 VA mental disorder examiner noted that the Veteran took some college classes but did not earn a degree. His longest job was as a city bus driver for 27 years. His depressive disorder resulted in occupational and social impairment with mild or transient symptoms which decrease work efficiency only during periods of significant stress. His symptoms included depressed mood, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. A January 2021 VA sleep apnea, sinusitis/rhinitis, and scars examiner indicated that sleep apnea, sinusitis, rhinitis, and scars did not impact the Veteran's ability to work. However, it was noted that daily congestion forced the Veteran to breathe out of his mouth and he would have to get up during the night when he could not breathe and take a hot shower. He would also have to take off his CPAP multiple times at night due to not being able to breathe secondary to his sinuses. He also continued to have intermittent pain in his chest and difficulty breathing due to where chest tubes were placed. The examiner opined that it was less likely than not that the Veteran was precluded from substantially gainful employment due to his service-connected disabilities. The sinusitis and rhinitis are common conditions and his sleep apnea was well-controlled and caused him minimal symptoms of daytime sleepiness. He also had not had a pneumothorax since the 1970's and therefore it was not an issue. A private medical opinion from Dr. M.B. was submitted in March 2021. After speaking with the Veteran and reviewing the claims file, Dr. M.B. stated that it was her opinion that it was as likely as not that the combination of pain and limitations caused by the Veteran's service-connected impairments alone prevent him from being able to work. Following a review of the record, it was indicated that he would be unable to stand or walk for long periods of time, would be required to miss work or leave early due to pain and limitations, and would need more than one break per day to lie down and rest. For more than three days per month he would not stay focused fir at least 7 hours of an 8-hour workday due to mental health symptoms and sleepiness. He would also have difficulty concentrating. He also slept poorly at night due to his depression and nasal congestion. His inability to maintain substantially gainful employment has been the case since at least the date of his claim in February 2013. After a review of the evidence of record, and resolving the benefit of the doubt in the Veteran's favor, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. The evidence indicates that the Veteran completed high school and a few college courses and has no other substantive training or education. The Veteran's previous job experience consisted of working as a bus operator for 27 years before retiring. The Veteran's last employer confirmed that the Veteran retired due to disability. In her April 2016 opinion, Dr. H.H.G. noted that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder. The April 2017 VA respiratory conditions examiner indicated that the Veteran's respiratory condition did impact his ability to work, as it impacted strenuous activities and the sinusitis/rhinitis examiner indicated that there was complete obstruction on the left side of the Veteran's nasal passage due to rhinitis. The buddy statements indicate that the Veteran lacked motivation to do things. The March 2020 sleep apnea VA examiner noted that sleep apnea impacted the Veteran's ability to work as it would cause difficulty sustaining attention and concentration. The Veteran has also clearly indicated that sleep would be interrupted due to nasal congestion causing difficulty breathing. Also Dr. M.B.'s opinion from March 2021 noted that the combination of pain and limitations caused by the Veteran's service-connected impairments alone prevented him from being able to work. The Veteran could not stand or walk for long periods of time, would be required to miss work or leave early due to pain and limitations, and would need more than one break per day to lie down and rest. These limitations would clearly make physical employment difficult for the Veteran, especially employment as a bus operator. In addition, it is questionable as to whether sedentary employment would be possible. It is clear from the record that the Veteran's depressive disorder would cause problems handling stress and problems with concentration, focus, and motivation. Sleep impairment would cause sleepiness and mood issues, which would in turn affect his job performance. The Veteran would also require breaks which would not always be possible working as a bus operator. While the November 2020 VA mental disorder examiner noted that the depressive disorder resulted in occupational and social impairment with mild or transient symptoms which decrease work efficiency only during periods of significant stress, the examiner also found that the Veteran suffered from symptoms including difficulty in establishing and maintaining effective work and social relationships. Taken together, the limitations described by the examiners would make sedentary or office type of work, very difficult. (Continued on the next page) The Board acknowledges that some of the VA examiner found that the Veteran's service-connected disabilities did not impact his ability to work. However, looking at the entire evidence of record and affording reasonable doubt in favor of the Veteran, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to TDIU is warranted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.