Citation Nr: 1318027 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 08-11 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the July 2006 and August 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A Travel Board hearing was held in July 2012 at the RO before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the claims file. The issue of entitlement to service connection for an acquired psychiatric disability to include PTSD 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. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are peripheral neuropathy, right upper extremity (major), rated at 30 percent disabling; diabetes mellitus type II with erectile dysfunction, diabetic dermopathy, left medial ankle, and bilateral cataracts, rated as 20 percent disabling; peripheral neuropathy, left upper extremity, rated as 20 percent disabling; peripheral neuropathy of the right lower extremity, rated as 20 percent disabling; and peripheral neuropathy of the left lower extremity, rated as 20 percent disabling. The combined evaluation for these disabilities is 80 percent and they are of a common etiology. As such, the minimum schedular criteria for TDIU are met. 2. Resolving all reasonable doubt in the favor of the Veteran, the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to a TDIU, which constitutes a complete grant of that claim. Therefore, in view of the fact that the full benefit sought by the Veteran is being granted by this decision, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Total disability ratings for compensation 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 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. 38 C.F.R. § 4.16(a); see also 38 C.F.R. §§ 3.340, 3.341. For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. 38 C.F.R. § 4.16(a). In this case, service connection is in effect for peripheral neuropathy, right upper extremity (major), rated at 30 percent disabling; diabetes mellitus type II with erectile dysfunction, diabetic dermopathy, left medial ankle, and bilateral cataracts, rated as 20 percent disabling; peripheral neuropathy, left upper extremity, rated as 20 percent disabling; peripheral neuropathy of the right lower extremity, rated as 20 percent disabling; and peripheral neuropathy of the left lower extremity, rated as 20 percent disabling. The combined evaluation for these disabilities is 80 percent, and they are of a common etiology. As such, the minimum schedular criteria for TDIU are met. Moreover, the Board finds that the probative and persuasive evidence reflects that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. In the VA Form 21-8940, Application for Increased Compensation based on Unemployability, the Veteran stated that he worked for the Atlanta Public School System from 1998 to 2003. He indicated that he completed four years of high school. He stated that he last worked in 2003 and that he was fired because he could not physically complete his work. During the July 2012 hearing, the Veteran testified that his service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. He reported that when he was working, he used power tools including a drill and a hand saw. He stated that he would shake, get cramps in his hands, and could not hold the tools sometimes. He also reported that if he had to go up steps, his legs would go out on him. He stated that because of his hands and legs, it kept him from moving to another job because he was not able to perform his daily tasks. The Veteran testified that his hands and neuropathy are worse and that he takes many pain pills and muscle relaxers. He stated that he cannot exercise. The Veteran's wife testified that the situation with his hands and legs would not make him suitable for any type of work, whether it was sitting down or standing up. She stated that he experiences a lot of pain and needs help with medications because he may drop them. She explained that he has spilled things on the floor due to losing his balance. She said that he does not have strength left to hold objects and he frequently drops things around the house. The Veteran stated that he cannot get out of the bed anymore and that inside the house; he needs to lean on something. He felt that his condition was paralyzing. Again, he stated that he could not continue his prior job as a maintenance worker because of his disabilities. Specifically, he stated that this was due to the required tasks including changing lights and using hand tools. The Board recognizes that the record contains a February 2013 VA examination report which evaluated each of the Veteran's service-connected disabilities. With respect to his service-connected diabetes mellitus, the examiner noted that the Veteran had a high school diploma and his occupational skills included carpentry, custodian, and area maintenance. He reportedly was employed as a custodian and area maintenance for Atlanta public schools for 20 years. His last employment was in 2003 when he received a lump sum of money. The examiner stated that the clinical diagnosis of diabetes mellitus resolved and that review of hemoglobin AIC from 2003 to February 2013 were normal and do not preclude sedentary or strenuous employment. With respect to peripheral neuropathy, the Veteran stated that he experienced worsening symptoms. The examiner stated that the findings were consistent with a diagnosis of moderate to severe peripheral neuropathy. The examiner stated that his peripheral neuropathy impacted his ability to work. The impact was noted to be occasional cramp type pain that caused him severe pain to both hands and feet. The examiner stated that the Veteran reported occasional cramp type pain; however, his physical examination was essentially unremarkable with good hand grip and no evidence of weakness. His peripheral neuropathy does not preclude sedentary type employment consistent with his education and employment history. He can perform area maintenance, cashier, clerical, or secretary type work without any difficulty. He was capable of securing substantial employment. The examiner stated that the Veteran's erectile dysfunction did not impact his ability to work and the Veteran was capable of performing sedentary type employment comparable with his education. With respect to the examiner's opinions, the Board notes that the weight of a medical opinion is diminished where that opinion is ambivalent based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Here, the VA examiner did not consider the aggregate impact of the Veteran's service-connected disabilities on his employability. Accordingly, the Board concludes that the VA medical opinion is of limited probative value. Here, the Board finds that the Veteran is competent and credible to report the effect of his service-connected disabilities on his employability. As explained above, the Veteran has moderate to severe peripheral neuropathy. He has testified that he experiences great pain, cannot get out of bed, has to lean on things in the home so as to not lose balance, and drops things due to poor strength. He has testified that he had to use hand tools and complete other tasks during his prior employment in maintenance and custodial work. He stated that he was fired because he was not able to perform these tasks due to the service-connected peripheral neuropathy of the hands and legs. Considering such factors as the Veteran's employment history and vocational attainments, and resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation, and the Veteran is therefore unemployable due to his service-connected disabilities. Accordingly, the Board concludes that the record supports assignment of a TDIU. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. at 53-56. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND In December 2012, the Board remanded the Veteran's claims of entitlement to service connection for an acquired psychiatric disability to include PTSD and entitlement to a TDIU to obtain VA mental health treatment records from the Atlanta, Georgia VA Medical Center and outpatient clinic in Decatur, Georgia from March 2011 to the present, Social Security Administration (SSA) records, and to provide VA examinations with respect to the nature and etiology of the Veteran's psychiatric disability and cognitive disability and whether the Veteran is unable to obtain or retain employment solely due to his service-connected disabilities. A review of the claims file shows that the AMC obtained VA mental health treatment records from March 2011 to January 2013 and the Veteran's SSA records and associated the records with the claims file. In addition, the Veteran was provided a VA examination in February 2013 with respect to his claim for entitlement to service connection for an acquired psychiatric disability. The examiner reviewed the claims file, responded to the Board's remand instructions, and provided nexus opinions with supporting rationale. Therefore, the Board finds that the aforementioned remand directives were completed. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, the Board observes that the March 2013 supplemental statement of the case (SSOC), explaining the continued denial of the claim of entitlement to service connection for an acquired psychiatric disability to include PTSD, was returned as undeliverable. The March 2013 SSOC was not sent to the proper address. The SSOC was sent to the Veteran's former payee's address in Tucker, Georgia. The Veteran's current fiduciary/payee is his wife, who lives at the Veteran's address in Ellenwood, Georgia. The correct address is listed on the January 2013 letter to the Veteran, the VA Medical Center examination inquiry, and the updated fiduciary address change dated in April 2013. As a result, the Board finds that due process requires a remand of these matters to provide a copy of the March 2013 SSOC to the Veteran's correct address. See 38 C.F.R. § 19.31 (2012). Accordingly, the case is REMANDED for the following action: Send a copy of the March 2013 SSOC to the Veteran's correct address in Ellenwood, Georgia. This action should be documented in the claims folder. Allow the Veteran an appropriate amount of time to respond. Thereafter, return the case to the Board. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs