Citation Nr: 1306752 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 07-29 032 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for a total disability rating based on individual unemployability (TDIU), prior to November 7, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to March 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2007 rating decision that assigned a higher rating for the Veteran's service connected posttraumatic stress disorder (PTSD). The Veteran appealed to the Board, seeking a higher rating. During the course of his PTSD appeal, a claim for TDIU was created, based on assertions that the Veteran's PTSD had rendered him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a July 2010 decision, the Board assigned a 70 percent rating for the Veteran's PTSD, and remanded the TDIU claim. The Veteran was subsequently awarded a 100 percent schedular rating for his PTSD. However, the total schedular rating did not take effect until November 2011, and therefore the issue of entitlement to a TDIU earlier than November 7, 2011 remains on appeal. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. A hearing was held before the undersigned Veterans Law Judge in May 2010, and a transcript of this hearing is of record. In July 2010, the Board remanded this matter to obtain a medical opinion. The action specified in the July 2010 remand was completed, the matter was returned to the Board. In September 2011, the Board once again remanded the claim for additional development. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The evidence of record makes it at least as likely as not that the Veteran's service connected disabilities have rendered him unemployable throughout the course of his appeal. CONCLUSION OF LAW Criteria for a TDIU have been met since December 26, 2006. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this 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 disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. On December 26, 2006, a claim was received from the Veteran seeking an increased rating for his service connected PTSD. At that time, the Veteran's PTSD was rated at 10 percent and was his only service connected disability. However, since that claim, the Veteran's schedular rating for PTSD was increased to 70 percent as of February 27, 2007 and then to 100 percent, as of November 7, 2011. Since December 2006, the Veteran was also granted service connection for coronary artery disease, which was retroactively rated at 100 percent from February 2005 through April 2005, and then at 30 percent since May 1, 2005. The Veteran's two service connected disabilities (PTSD and coronary artery disease) have combined to a 70 percent level since December 26, 2006, 80 percent as of February 7, 2007, and 100 percent as of November 7, 2011; and the Veteran has therefore met the schedular criteria for a TDIU since his claim was received in December 2006. See 38 C.F.R. §§ 4.16(a), 4.25. However, service connection for TDIU has been denied as it was concluded that the Veteran's service connected disabilities did not prevent him from obtaining or maintaining substantially gainful employment. At this juncture, the Board notes that Bradley is not considered to be otherwise applicable to this claim in that the Veteran's claim (as he asserted at his hearing before the Board in November 2011) is that his service connected disabilities combine to render him unemployable, not that any one service connected disability on its own should be considered to render him unemployable. There is also no indication that the Veteran has filed for special monthly compensation, also rendering Bradley inapplicable to the facts of this case. In February 2007, a VA psychiatric examination was provided at which the Veteran reported having experienced a heart attack in 2005 after which he was placed on medical leave by the fire department. He reported a good relationship with his wife, but denied many other contacts. A social worker at the Vet Center wrote in March 2007 that the Veteran's PTSD had a significant impact on his social and occupational functioning. In his substantive appeal in September 2007, the Veteran explained that following the onset of the Gulf War in approximately 2003, he began to develop a heart condition, which led to him taking a less stressful job with the fire department. Unfortunately, the Veteran suffered a heart attack in 2006 and developed angina in 2007, which ended his career with the fire department. He asserted that he remained isolated, angry, and unable to work. In May 2010, the Veteran testified at a hearing before the Board. He stated that when he was working, he had problems getting along with coworkers. However, he added that the fire department functioned like an extension of his service in that they would work together as a team to achieve an objective. Unfortunately, once he stopped being able to work at the fire department, the Veteran reported that his PTSD symptoms increased. The social worker the Veteran had been seeing testified that since the Veteran had retired from the fire department his symptoms had become chronic and severe and had basically rendered him unemployable. In July 2010, the Veteran wrote a statement in support of his claim, asserting that it was not his PTSD which rendered him unemployable, but rather it was his heart attack. He once again explained that his work with the fire department had helped him cope with his PTSD. Following his hearing, the Board remanded the Veteran's claim to obtain a medical opinion as to his employability. In December 2010, following an examination, the examiner concluded that the Veteran had continuing issues with social isolation, anger, emotional numbing, distressing intrusive thoughts, and other symptoms of PTSD, which did lead to occupational limitations, but were not of such severity as to warrant a description that the Veteran was totally disabled from an occupational or social perspective. The Veteran again reported that his heart attack had led to his retirement from the fire department. However, at the time of the December 2010 examination, the Veteran had not yet been service connected for his coronary artery disease, which was granted by a January 2011 rating decision. The Board recognized in September 2011that there was insufficient evidence of record to determine whether the Veteran's two service connected disabilities, PTSD and coronary artery disease, together rendered him unable to find or maintain substantially gainful employment. The Board noted that at the June 2010 VA examination, symptoms of the Veteran's coronary artery disease included dyspnea on exertion, as well as occasional palpitations and lightheadedness, with no syncope. However, while it was acknowledged that such symptoms might preclude physically demanding employment, such as that of a firefighter, it was unclear to the Board whether or not the Veteran would be able to perform sedentary labor. The Board was also unable to determine whether the Veteran's coronary artery disease and PTSD might aggravate each other, rending him unable to work. Accordingly, the Board remanded the case for a new medical opinion. In November 2011, the Veteran underwent separate VA examinations of his heart and his PTSD. The heart examiner concluded that the Veteran was not able to do stressful or heavy work because of coronary artery disease, adding that the stress associated with PTSD aggravated his coronary artery disease. The examiner noted that the Veteran was doing desk work for the fire department and became involved in an argument about the Iraq War which triggered chest pain and ultimately led to his retirement. A VA psychiatric examination was also provided in November 2011 after which the examiner stated that the Veteran's PTSD symptoms negatively impacted upon the Veteran's other medical conditions and employability (unable to find and maintain). Based on the VA examination opinion, the Veteran was assigned a 100 percent schedular rating for PTSD; but his claim for TDIU remained denied. However, while the two medical opinions failed to directly address the Board's question, a sympathetic reading of the two medical opinions together unmistakably leads to the conclusion that the Veteran's two service connected disabilities together have rendered him unable to obtain or maintain substantially gainful employment during the course of his appeal. That is, while neither the PTSD, nor the coronary artery disease, alone would preclude employment, the two conditions play off of and exacerbate one another to the point where it is unlikely that the Veteran would be able to maintain gainful employment. The record shows that the Veteran was able to work for the fire department for a number of years. However, around the time of his claim, his stress levels began to rise as a result of his PTSD which triggered heart problems. The heart problems in turn ultimately precluded the Veteran from working in a stressful environment, and then the absence of the structure that had been provided by the Veteran's employment caused his PTSD related symptomatology to increase. As a result, it appears that the Veteran's two service connected disabilities have combined to render him unemployable. A review of the medical evidence makes it clear that these service connected disabilities have been present since the Veteran's claim for an increased rating for PTSD was received, and even then the two disabilities were causing an enormous strain on the Veteran's employability. Given this conclusion, the criteria for a TDIU were met as of the date his claim was received in December 2006, and the Veteran's claim is granted. A rating earlier than the date of claim is not available as the Veteran was employed prior to that time by the fire department, and thus was not considered to be unemployable for VA purposes. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). The effective date of this award is to be decided by the RO in the first instance. ORDER A total rating based on individual unemployability due to service-connected disabilities is granted as of December 26, 2006, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs