Citation Nr: 1313009 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 06-38 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected pulmonary sarcoidosis with asthmatic bronchitis and anxiety. 2. Entitlement to a total disability rating based on individual unemployability (TDIU rating). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran had active service from September 1954 to September 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2006 and October 2006 RO rating decisions. The June 2006 RO decision, in pertinent part, denied a claim for a TDIU rating. The October 2006 RO decision denied service connection for hypertension, to include as secondary to service-connected pulmonary sarcoidosis with asthmatic bronchitis. In November 2010, May 2011, and July 2012, the Board, in pertinent part, remanded the issue of entitlement to service connection for hypertension, to include as secondary to service-connected pulmonary sarcoidosis with asthmatic bronchitis, as well as the issue of entitlement to a TDIU rating, for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Regrettably, the Board must again remand the issue of entitlement to service connection for hypertension, to include as secondary to service-connected pulmonary sarcoidosis with asthmatic bronchitis and anxiety. As such this claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants a TDIU rating, a complete grant of the benefits sought on appeal. Thus, a discussion of VA's duty to notify and assist is unnecessary. The Veteran presently seeks a TDIU, indicating that his service-connected disabilities prevent his from following and maintaining gainful employment. In this regard, the Board finds that the evidence sufficiently confirms that the Veteran has continually been unemployed, having last worked in the year 1987 as a furniture repairer. See VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, February 2006. Therefore, the determinative matter centers on whether a TDIU is warranted pursuant to 38 C.F.R. § 4.16. Under applicable criteria, a TDIU rating may be assisted where a veteran's has a service-connected disability(ies) (I) rated 60 percent or more disabling or (II) 40 percent disabling, with sufficient additional disability evaluation(s) to yield at least 70 percent combined disability evaluation. 38 C.F.R. §§ 3.340, 3.341, 4.16. Here, the Veteran is currently service-connected for pulmonary sarcoidosis with asthmatic bronchitis (rated 60 percent) and for an anxiety disorder (rated 30 percent). The combined disability rating is 70 percent. Thus, the Veteran's service-connected disabilities satisfy the schedular criteria set forth in 38 C.F.R. § 4.16 (a) (2012). In Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a Veteran need not establish "100 percent unemployability" to prove his inability to maintain a "substantially gainful occupation." The Federal Circuit declared, Requiring a veteran to prove that he is 100 percent unemployable is different than requiring the veteran to prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests an intent to impart flexibility into a determination of the veterans overall employability, whereas a requirement that the veteran prove 100 percent unemployability leaves no flexibility. While the term "substantially gainful occupation" may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent. Id. at 1385. To be granted a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The medical evidence of record shows that the Veteran's service-connected disabilities, in the aggregate, render him unemployable. The Board notes the Veteran's claims file contains extensive private and VA treatment records, dating from March 1987 to January 2010 and from August 1975 to the present, respectively. These records show his continuous treatment for his service-connected disabilities. Additionally, as stated on his VA Form 21-8940, the Veteran was last employed in 1987 as a furniture repairer. A March 1987 letter from his employer indicates the Veteran was removed from work due to "Unsatisfactory Performance." Thereafter, two statements submitted in May and August 1987 by the Veteran's private physician, Dr. Neal, determined the Veteran is completely and totally disabled and cannot return to work. In making this determination, Dr. Neal referred to the Veteran's pulmonary functioning studies and a review of all ailments, including sarcoid disease. In July 2006, Dr. Neal also provided an opinion as to the aggregate effect of the Veteran's service-connected anxiety and pulmonary sarcoidosis with asthmatic bronchitis on the Veteran's ability to obtain and maintain substantially gainful employment. Dr. Neal determined that the Veteran was totally disabled and will never ever be able to return to any type of gainful employment, when considering the Veteran's anxiety and pulmonary sarcoidosis disabilities. In November 2010, the Board remanded this claim for an opinion as to whether it is at least as likely as not that his service-connected disabilities (sarcoidosis with asthmatic bronchitis and anxiety disorder) either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. However, the November 2010 VA examination did not address the issue of employability. In May 2011, the Board again remanded this claim, to again attempt to obtain an opinion from a VA examiner who conducted the November 2010 VA respiratory examination as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it was at least as likely as not that his service-connected disabilities (sarcoidosis with asthmatic bronchitis and an anxiety disorder), either alone, or in the aggregate, rendered him unable to secure or follow a substantially gainful occupation. A June 2011 addendum to the November 2010 VA respiratory examination report, from the same examiner who conducted the November 2010 VA respiratory examination stated that the Veteran's claims file was reviewed. The examiner did not provide an opinion. The examiner indicated that regarding the Veteran's employability, he would recommend a general medical examination where the various factors affecting his employability were addressed in more detail. A September 2011 VA general medical examination report notes that the Veteran's claims file was reviewed. The diagnoses were pulmonary sarcoidosis and COPD. The examiner commented that the Veteran's service-connected sarcoidosis would prevent physical employment, but that it would not significantly interfere with sedentary work, such as a desk job. A September 2011 VA psychiatric examination report indicates that the Veteran's claims file was reviewed. The diagnosis was generalized anxiety disorder. The examiner commented that the Veteran's generalized anxiety disorder did not render him unable to secure and maintain gainful employment. Most recently, the Board remanded this claim in July 2012 for an opinion concerning whether each of the Veteran's service-connected disabilities, either alone or in the aggregate, without consideration of his age or any of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. The Veteran was scheduled for a general medical VA examination and a mental health examination in August 2012. The general medical VA examiner determined the Veteran's non-service connected hypertension does not impact his ability to work. No further comment was provided. Additionally, the mental health examiner stated the Veteran's generalized anxiety disorder did not render him unable to secure or maintain substantially gainful employment as it only causes mild impairment in occupational and social functioning. There was no opinion in either of the August 2012 examinations concerning the service-connected pulmonary sarcoidosis, or the aggregate impact of the Veteran's service-connected disabilities on his ability to maintain or follow substantially gainful employment. Based on a review of the claims file, the Board finds that the July 2006 opinion from Dr. Neal that the Veteran is totally disabled as a result of his service connected disabilities to be more probative than the numerous, non-responsive VA examination opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, this is July 2006 opinion from Dr. Neal is the only opinion that addresses the aggregate impact of the Veteran's service connected disabilities on his employability. As such, the most probative evidence addressing the determinative question before the Board provides a clear opinion with a cogent rationale, weighing in favor of the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Given the impact his service-connected disabilities have on his employability is within his personal observation, the Board finds that the Veteran's numerous statements on this matter to be competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Veteran has provided a generally consistent account, to include solely for the purpose of obtaining medical care and treatment. Moreover, the objective medical findings tend to corroborate his account of symptomatology. Thus, to this extent, the Board finds the Veteran's account on these matters to provide competent, credible and highly probative evidence, tending to support the claim. See also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). The Board is mindful that the RO did not substantially comply with the July 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon a Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand.). However, since the Board finds that the totality of the evidence, medical and lay, shows that the aggregate symptoms associated with the Veteran's two service-connected disabilities are of such a severity that he is rendered unable to secure or follow a substantially gainful occupation, a remand is not necessary. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Stegall v. West, 11 Vet. App. 268, 271 (1998); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Thus, resolving all reasonable doubt in his favor, the Board finds that the Veteran is entitled to TDIU rating and the claim is granted. ORDER Subject to the law and regulations governing payment of monetary benefits, entitlement to a TDIU is granted. REMAND A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. Here, unfortunately, the AMC did not substantially comply with the Board's prior July 2012 remand directive by ensuring an adequate VA examination and medical opinion. Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). The Board, therefore, must correct this error before adjudicating this remaining claim for hypertension, to include as secondary to service-connected pulmonary sarcoidosis with asthmatic bronchitis and anxiety. 38 C.F.R. § 4.2 (2012). In the July 2012 remand, the Board determined the development requested pursuant to the May 2011 Board remand instructions as to the Veteran's claim for service connection for hypertension, has not been accomplished. Specifically, the Board remanded this claim for a VA examination to determine the nature, etiology, and/or onset of his claimed hypertension, to include as secondary to a service-connected pulmonary sarcoidosis with asthmatic bronchitis and/or an anxiety disorder. Based on a review of the claims file and examination of the Veteran, the Board asked the examiner to provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not that the Veteran's hypertension is etiologically related to his period of service. The examiner was then asked to opine whether it is at least as likely as not that the Veteran's service-connected pulmonary sarcoidosis with asthmatic bronchitis and his anxiety disorder, either alone or in the aggregate, aggravated his hypertension. In August 2012, the Veteran was scheduled for a general medical VA examination. At that time, the examiner determined it was less likely than not the Veteran's hypertension is etiologically related to his period of military service. Further, with regards to his sarcoidosis/ asthmatic bronchitis aggravating his hypertension, it is not likely. The examiner stated that the Veteran has had primarily lung involvement and his disease has remained relatively stable over the years. Sarcoid can affect any organ system, and if the kidneys were involved, the Veteran's blood pressure could have been worsened, however, it would be difficult to ascertain that hypothesis. Therefore, the examiner determined it is less likely than not the Veteran's sarcoidosis is associated with his hypertension. As for the issue of whether the Veteran's anxiety may have caused or aggravated his hypertension, the Veteran was scheduled for a VA psychiatric examination in October 2012. A supplemental opinion was obtained that same month. The examiner stated that that there is no reason to state there is an association with anxiety and hypertension. The Board observes that although the Veteran was afforded VA general medical and psychiatric examinations in August and October 2012, and an addendum opinion was obtained from the VA examiner pursuant to the October 2012 VA mental health examination, these respective examiners failed to address the aggregate impact of the Veteran's service-connected disabilities on his hypertension. Further, with regards to the October 2012 opinion concerning the etiology of the Veteran's hypertension, including as secondary to the service-connected anxiety disorder, this opinion is inadequate for rating purposes as there is no rationale for this unfavorable opinion. VA examination may provide a full rationale for the expressed opinion. See Barr v. Nicholson, 21 Vet. App. at 312 (when VA undertakes to provide the Veteran with a VA examination, the Board must ensure that such an examination is adequate). As such, the Board has no choice but to again remand this matter to obtain addendum opinions from the August and October 2012 VA examiners for responsive etiological opinions, following a thorough review of the entire claims folder with thorough rationales, as to his claim for service connection for hypertension, to include as secondary to service-connected pulmonary sarcoidosis with asthmatic bronchitis and an anxiety disorder. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds such an examination is necessary to adjudicate this appeal. 38 C.F.R. § 3.159 (2012). Finally, the Board notes the Veteran provided copies of VA treatment records dated in October and November 2012. A review of the Veteran's virtual claims file reveals VA treatment records dated to May 2012. Additionally, the Veteran submitted a private treatment record dated in August 2012 from the South Carolina Heart Center. Therefore, on remand, any additional private treatment records from the South Carolina Heart Center or any other private physicians, as well as any outstanding, pertinent VA treatment records dated after May 2012, should be obtained. See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide sufficient information, and if necessary, authorization, to enable the AOJ to obtain any additional evidence pertinent to the claims on appeal. After securing the necessary authorizations for release of this information, the AOJ should seek to obtain copies of all records referred to by the Veteran not already of record, specifically from South Carolina Heart Center, as well as any pertinent VA treatment records dated since May 2012. The AOJ must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit medical evidence addressing whether there is a relationship between his hypertension and service, as well as between his hypertension and his service-connected disabilities, i.e., his pulmonary sarcoidosis with asthmatic bronchitis and anxiety. He should be provided a reasonable amount of time to submit this evidence. 3. Then, return the claims folders to the VA examiners who conducted the August and October 2012 VA examinations and the October 2012 addendum concerning the Veteran's claim. The examiners should again review the claims folders. The examiners should provide medical opinions, with adequate rationales, as to whether it is at least as likely as not that the Veteran's hypertension is etiologically related to his period of service. The examiners should then opine as to whether it is at least as likely as not that the Veteran's service-connected pulmonary sarcoidosis with asthmatic bronchitis and his anxiety disorder, either alone or in the aggregate, aggravated his hypertension. All findings and conclusions, accompanied by a rationale, must be set forth in a legible report. If the examiner is unable or unwilling to provide a sufficient medical opinion, meaning more than what has already been provided (which has been determined to be insufficient), then schedule the Veteran for a new VA compensation examination with a different medical professional to determine the nature and etiology of his hypertension. 4. Then readjudicate the appeal. If the benefits sought on appeal are not granted, the issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs