Citation Nr: 1310191 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 00-04 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) prior to December 14, 2011. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971 with service in the Republic of Vietnam from January 1970 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 1998, July 1999, and June 2004 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A Travel Board hearing was held at the RO in November 2005 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In a January 2011 decision, the Board granted service connection for posttraumatic stress disorder (PTSD) and anxiety disorder, denied service connection for bilateral hearing loss, and granted an increased rating of 30 percent, but no higher, for tinea pedis and tinea cruris. In an April 2011 rating decision, the RO implemented the Board's January 2011 decision by assigning a 30 percent rating effective March 23, 1998, for the Veteran's service-connected tinea cruris and tinea pedis and by granting service connection for PTSD evaluated as 50 percent disabling effective May 13, 2003. The Veteran appealed the Board's January 2011 decision to the United States Court of Appeals for Veterans Claims (Court) with respect to the grant of an increased rating of 30 percent, but not higher, for his service-connected tinea pedis and tinea cruris and with respect to the referral of a TDIU claim to the AOJ. That part of the Board's January 2011 decision that denied service connection for bilateral hearing loss was not appealed. In a July 2012 Memorandum Decision, the Court affirmed in part and reversed in part the Board's January 2011 decision. The Court affirmed the Board's decision granting an increased rating for the Veteran's service-connected tinea pedis and tinea cruris. The Court also found that the Board had erred in finding that, because it lacked jurisdiction over the Veteran's TDIU claim, this claim was referred to the AOJ. See Court decision dated July 17, 2012, at pp. 4. Citing Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009), the Court reversed the Board's conclusion in the January 2011 decision that it lacked jurisdiction over the TDIU claim and remanded this claim back to the Board. Id. Thus, that part of the Board's January 2011 decision that: (1) denied service connection for bilateral hearing loss; and (2) granted an increased rating of 30 percent, but not higher, for the service-connected tinea pedis and tinea cruris, will remain undisturbed. Subsequent to the decision promulgated by the Board in January 2011, the RO granted service connection for coronary artery disease, evaluated at 30 percent disabling, effective from June 29, 2009. See Rating Decision dated February 2011. In a rating decision, dated August 2012, the RO increased the disability rating for the Veteran's coronary artery disease from 30 percent to 100 percent, effective from December 14, 2011. However, in accordance with the law of the case doctrine, the remaining issue on appeal is as listed on the cover page. See Chisem v. Gober, 10 Vet. App. 526, 527-28 (1997) (under the "law of the case" doctrine, the Board is bound by the findings contained in the Court's decision and is not free to do anything contrary to the Court's prior action with respect to the same claim). In February 2013, the Veteran, through an attorney, submitted a VA Form 21-22a appointing his attorney to represent him before VA and additional evidence and argument in support of his TDIU claim. This evidence was submitted with a waiver of RO jurisdiction in the first instance. See generally 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. The Veteran completed high school and has worked as a mail clerk with the United States Postal Service; he was last gainfully employed full time in June 2004. 2. Service connection is in effect for coronary artery disease (rated 30 percent from June 29, 2005, and 100 percent from December 14, 2011); PTSD (rated 50 percent from June 13, 2003); tinea pedis and tinea cruris (rated 10 percent from February 14, 1979, and 30 percent from march 23, 19980; midline sternum scar (rated noncompensable from January 5, 2012); and a scar of the left saphenous vein (rated noncompensable from January 5, 2012). 3. The Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, given his education and occupational background, at least for the period from June 19, 2004, to December 13, 2011. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to service-connected disabilities, from June 19, 2004, to December 13, 2011, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2010). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2010). In light of the favorable disposition, that is, the granting of a TDIU rating as set forth in 38 C.F.R. § 4.16(a), further discussion here of compliance with the VCAA as to this discrete issue is not necessary. Analysis Total disability ratings may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more; and that, 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. It is provided further that the existence or degree of nonservice connected disabilities or previous unemployability status will be disregarded where the percentages referred in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a). Service connection is in effect for coronary artery disease (rated 30 percent from June 29, 2005, and 100 percent from December 14, 2011); PTSD (rated 50 percent from June 13, 2003); tinea pedis and tinea cruris (rated 10 percent from February 14, 1979, and 30 percent from march 23, 19980; midline sternum scar (rated noncompensable from January 5, 2012); and scar of left saphenous vein (rated noncompensable from January 5, 2012). The combined ratings for the Veteran's service connected disabilities are: 10 percent effective from February 14, 1979; 30 percent effective from March 23, 1998; 70 percent effective from May 13, 2003; 80 percent effective from June 29, 2005; and 100 percent from December 14, 2011. In April 2006, while the issues of service connection for bilateral hearing loss and PTSD (and anxiety disorder), and for an increased rating in excess 10 percent for tinea pedis and tinea cruris, were in appellate status before the Board (see BVA Remand, dated October 2, 2006), the Veteran filed at the RO level a formal application seeking entitlement to service connection for a heart condition. See VA Application for Compensation or Pension, date stamped received April 26, 2006. In that application, the Veteran stated that due to his stroke, he could no longer work, and that he now received one-third of the income that he had earned when he could work. He documented that he suffered a stroke in September 2003, and that he last worked as a mail clerk with the United States Postal Service on June 18, 2004. The Board notes that based on the Veteran's explicit statement of unemployability, the Veteran raised the issue of a TDIU due exclusively to the (then nonservice connected) heart condition, which was referred (and not remanded) to the RO, as it was inextricably intertwined with the pending and unadjudicated claim of service connection for a heart condition. See 38 C.F.R. § 3.160 (c) (2006, 2012) (Pending claim is an application, formal or informal, which has not been finally adjudicated). The issue of service connection for a heart condition was not a part of the appeal that led to the January 2011 Board decision. See 38 U.S.C.A. § 7015 (West 2002). Hence, the Veteran's assertion of a TDIU in the context of the claim for service connection for a heart condition (and not a claim for increased compensation for an already service-connected disability) was referred to the RO by considering the stage of the adjudication at which the issue was raised. See Rice v. Shinseki, 22 Vet. App. at 453-455. In any event, in accordance with the law of the case doctrine, the Board must now consider the Veteran's claim of a TDIU as part of the increased rating claim for tinea cruris and tinea pedis, as well as the subsequent grant of service connection for PTSD (and an anxiety disorder), which were the subjects of the January 2011 Board decision. See Chisem v. Gober, 10 Vet. App. at 527-28 (1997) (under the "law of the case" doctrine, the Board is bound by the findings contained in the Court's decision and is not free to do anything contrary to the Court's prior action with respect to the same claim). Subsequent to the decision promulgated by the Board in January 2011, the RO granted service connection for coronary artery disease, evaluated at 30 percent disabling, effective from June 29, 2009. See Rating Decision, dated February 2011. In a rating decision, dated August 2012, the RO increased the disability rating for the Veteran's coronary artery disease from 30 percent to 100 percent, effective from December 14, 2011. In statements on a VA Form 21-8940, "Veteran's Application For Increased Compensation Based On Unemployability," dated on September 7, 2011, and date-stamped as received by the RO on September 13, 2011, the Veteran asserted that "PTSD" and "heart" disabilities prevented him from securing and following a substantially gainful occupation. He related that he was employed for nearly 29 years with the United States Postal Service, and that he last worked on June 19, 2004. The Board notes that this document was submitted by the Veteran while his appeal of its January 2011 decision was pending with the Court. In his February 2013 submission to the Board, the Veteran, through his attorney, argued that his service-connected coronary artery disease, alone or in combination with his other service-connected disabilities, rendered him unable to secure and follow a substantially gainful occupation, entitling him to a TDIU. The Veteran also submitted a January 2013 private vocational assessment in which E.J.C., M.A., CCM, CDMS, stated that the Veteran's "primary service-connected disabilities associated with coronary artery disease, PTSD, and tinea cruris and tinea pedis" rendered him unemployable. This private vocational consultant also stated: [The Veteran's] last employment was at age 56 for the U.S. Postal Service as a courier on a part time basis, but at gainful wages until June 2005 at which time his service-connected heart condition worsened and he could no longer continue due to his lacking stamina from the heart condition and being unable to concentrate, remember instructions, or complete job tasks efficiently due to his service-connected PTSD. This consultant concluded that the Veteran "has been unable to work competitively since leaving the Postal Service in June 2005." This vocational consultant also concluded: I have reviewed the entire claims file and considered all of the Veteran's conditions and disabilities, both service-connected and non-service-connected, [and] it is my opinion within a reasonable degree of vocational certainty that [the Veteran's] service-connected conditions, including coronary artery disease, PTSD, and Tinea Cruris and Tinea Pedis, have resulted in his inability to secure and follow a substantially gainful occupation since June 2005. The Board notes in this regard that, in determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. § 4.16. After a careful and considered review of the medical, vocational and lay evidence, the record indicates that the Veteran was last employed as a mail clerk, and that he retired from this position because of the combined effect of several of his service connection disorders. The record reflects that this employment was impacted by the Veteran's coronary artery disease, PTSD (and anxiety disorder), and skin condition. Moreover, the comprehensive report and opinion from the January 2013 Vocational Consultant also provide confirming evidence that the Veteran was no longer able to obtain or retain substantially gainful employment due the combined effect of his service-connected disabilities, his education and past work history. Accordingly, while that the regular percentage standards for a TDIU rating under 38 C.F.R. § 4.16(a) were satisfied by the Veteran on May 13, 2003, the Board finds it reasonable to conclude that the record evidence supports a finding that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities on June 19, 2004 (the day following the date he last worked), until December 13, 2011 (the day before his award of a 100 schedular rating for coronary disease). The appeal is granted. ORDER Subject to the laws and regulations governing monetary awards, entitlement to a TDIU rating due to the service connected disabilities, from June 19, 2004, to December 13, 2011, is granted. ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs