Citation Nr: 1319132 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 07-03 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to an evaluation in excess of 10 percent for service-connected foot disability originally diagnosed as deformity of 5th toes of both feet with painful callus at base of 5th toes bilaterally. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active military service from November 1967 to March 1970. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in December 2010. This matter was originally on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Albuquerque, New Mexico. In December 2010 and October 2011, the Board remanded the claims for further development. The issue of entitlement to an evaluation in excess of 10 percent for service-connected foot disability originally diagnosed as deformity of 5th toes of both feet with painful callus at base of 5th toes bilaterally is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was gainfully employed full time prior to January 1, 2009. 2. Since January 1, 2009, the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for assignment of a TDIU from January 1, 2009, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 4.16(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the favorable decision awarding entitlement to TDIU, no further notice or assistance is needed to aid the Veteran in substantiating his claim. II. Legal Criteria & Analysis Entitlement to a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki. Entitlement to a TDIU is raised where a Veteran (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Veteran's medical records and written statements reveal that he is retired and that he had difficulty maintaining gainful employment due to his service-connected disabilities. Given the evidence of a medical disability, the claim for the highest possible rating, and evidence of unemployability, the record raised a claim for a TDIU under Roberson and Rice. The record shows that the Veteran was a County Superintendant for three years, worked as a highway foreman for 10 years, and was a partner and co-owner of a recycling business for approximately twenty years until he stopped working and eventually sold the business. The record reflects a slightly variable history of the Veteran's employment prior to October 1, 2010. On a September 2009 VA Form 21-8940, he reported that he last worked full-time January 1, 2009, because he became too disabled to work. He reported that his highest gross earnings per month were $1475.00. He reported that the most he ever made per year was $17,700 in one year and that was in 2008. He worked 60 hours per week in manufacturing for Southwest Recyclers. A September 2009 VA treatment record noted that he still did some work in the oil refinery business on a contract labor basis. On an October 2010 VA Form 21-4192,the Veteran's employer/supervisor, B.S. reported that the Veteran's employment ended on September 30, 2010, and that he did not work for 12 months prior to that date due to disability. B.S. indicated that the Veteran did not have any income during this time. B.S. also reported that the Veteran tried everything, but was unable to do the physical work. The Veteran was last paid $7000 on August 20, 2010. On November 2010 VA examination for PTSD and right shoulder disability, the Veteran reported that he closed his metal recycling and livestock panel manufacturing business in 2003 because he could no longer bend, lift and carry the metal piles used in the business. On a January 2011 VA Form 21-4192, completed from the Veteran's employer/supervisor, B.S. reported that the Veteran owned part of the company that manufactured panels for livestock. He reported that the Veteran lost at least 100 days of work. The Veteran began employment on April 1, 1994, and ended his employment on December 1, 2009, although he stopped working on January 1, 2009. The Veteran was last paid $5000 on October 1, 2010. In an associated statement, B.S. reported that the Veteran was not able to physically and mentally work. On January 2011 VA examination of the feet, the examiner reported that although, the Veteran quit his job in 2010, for two years his mobility was so limited that he could only act in a supervisory capacity on a part-time basis. On August 2011 VA examination, the Veteran reported that he quit his job about three years ago. In an undated statement, the Veteran reported that he has not worked since December 2008 and that in October 2010, he sold his shares of Southwest Recyclers. In May 2012 correspondence, his attorney reported that the effective date of the sale of the Veteran's stock ownership in Southwest Recyclers, Inc., was October 1, 2010. The Board finds that the weight of the evidence is to the effect that the Veteran was gainfully employed through December 2008. The Veteran himself reported that he had his highest earnings of $17,700 during the year 2008 and worked 60 hours per week. The record reflects that during the year of 2009, his wages drastically changed. On an October 2010 VA Form 21-4192, the Veteran's employer/supervisor, B.S. indicated that the Veteran's income beginning in 2009 was $0. Both the Veteran and his employer have reported that he stopped working on January 1, 2009. The weight of the evidence is to the effect that the Veteran was gainfully employed until December 31, 2008. Because the Veteran was gainfully employed, TDIU is not warranted for the period on and before December 31, 2008. As of January 1, 2009, service connection was in effect for posttraumatic stress disorder (PTSD) rated as 50 percent disabling, right shoulder degenerative joint disease rated as 30 percent disabling, residuals of left shoulder injury rated as 20 percent disabling, and bilateral deformity of the 5th toe, rated as 10 percent disabling, bilaterally. The combined evaluation for compensation is 80 percent. Thus, the Veteran meets the schedular criteria for a TDIU. The analysis does not end here. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service connected condition and advancing age, which would justify a TDIU due solely to the service connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). By way of background, on November 2004 VA examination the examiner reported that the Veteran had weakness in the upper extremities secondary to pain because of limited motion from the impingement syndrome and adhesive capsulitis. This produced difficulty in the Veteran's employment, in which he had to hire help to run his business as he could not do any lifting, pushing, or pulling with his upper extremities. He also was limited with regards to standing and walking any distance because of problems with his lower extremities, namely a high longitudinal arches with hallux valgus and hammertoes, especially involving the 5th toes of both feet. This also caused difficulty standing and interfered with his manufacturing business. On September 2006 VA PTSD examination, the Veteran reported that was self-employed for about 20 years and had a manufacturing business for a number of years. He and his partner built livestock panels out of recycled metal. The Veteran was involved in the shop and had a few employees. His partner dealt with the business aspect of the company, for example, selling the products and dealing with the customers. The Veteran reported that he did not like that aspect of the business and did not like to interact with the customers as he tended to get angry. The examiner indicated that the Veteran had difficulty performing the customer related aspect of the business due to his PTSD, but was able to work in the shop and perform well in this area. On September 2006 VA examination of the feet, the examiner diagnosed bilateral hammer toe deformity, 4th-5th toes, symptomatic with callus formation on the matatarsophalangeal joints. The examiner reported that there were significant effects on the Veteran's occupation activities in that he had decreased mobility, lack of stamina, weakness or fatigue, pain and limitation of motion, which resulted in increased absenteeism. On October 2006 VA examination of the left shoulder, the examiner reported that there were significant occupational effects in that there was decreased mobility, problems with lifting and carrying, and pain. A February 2007 VA treatment record from New Mexico Health Care System noted that the Veteran decreased his amount of work at a manufacturing plant secondary to shoulder and foot pain. On November 2010 VA examination for PTSD and right shoulder disability, the examiner noted a history of the Veteran's working until he was no longer able to lift and carry the metal products that were used in the business. The examiner reported that the Veteran was right-handed and the degenerative joint disease of the right shoulder was symptomatic and had significant effects on the Veteran's occupation. He experienced problems with lifting and carrying, difficulty with reaching, and pain. The VA examiner specifically found that the Veteran was unable to work in his chosen occupation as a recycler of oil company materials into livestock panels for cattle ranchers. The work involved lifting heavy metal pipes, fabricating and reshaping and metal pipes into livestock panels that weigh 125 pounds. He was unable to do this type of physical labor with his shoulder disability. The examiner added that it was difficult for the Veteran to work a sedentary job, because, he was personally involved in the business and would not be able to sit and direct his workers. On December 2010 VA examination, in regards to the Veteran's symptoms of PTSD, the examiner found that there was a mild impairment in the Veteran's employment. On January 2011 VA examination of the feet, the examiner reported that the Veteran retired in October 2010 due to physical (feet and shoulder) and psychiatric problems (PTSD). The examiner described the effects of each of the Veteran's bilateral foot disabilities on his occupation. The examiner specifically stated that in regards the hammertoe deformity of the 4th and 5th toes, bilaterally; there were significant effects on the Veteran's occupation. He experienced decreased mobility, problems with lifting and carrying, and decreased strength in the lower extremity. The examiner reported that in reality, although, the Veteran quit his job in 2010, for two years his mobility was so limited that he could only act in a supervisory capacity on a part-time basis. On an August 2011 VA podiatrist consult, the examiner indicated that the Veteran's foot condition impacted his ability to work in that the Veteran was unable to walk for prolonged time or distance. The examiner noted that the Veteran quit his jobs about three years ago due to his foot pain and weakness. In a March 2012 addendum, a VA Clinical Psychologist opined that the Veteran's PTSD symptoms were mild to moderate and did not completely compromise his work-related skills and abilities. The Clinical Psychologist reported that in taking his PTSD solely into account, this psychiatric illness did not preclude him from working in a sedentary or physical setting. In a May 2012 addendum, the VA examiner opined that the Veteran's service-connected aggravation of 5th toe callus and hammer-toe deformity, his bilateral shoulder acromioclavicular joint degenerative joint disease do not (LESS THAN 50%) cause unemployability. The examiner reasoned that according to the November 2012 VA examination, the Veteran was in business in what was a company that recycled oil appliances. He used one-and-a-half-inch plates which were cleansed and then fabricated into a 10' x 5' 125 pound panels that were used by the cattle industry. He worked a lot in his work until he was longer able to lift and carry the metal products that were used. He closed his business in 2003 because of the problems with his shoulders and his feet. The examiner stated that the ability of Veteran to carry 125 lb iron panels until 33 years after discharge from service suggested his current shoulder limitations were not primarily due to three years' service in the military. The Board finds that the evidence in favor of granting a TDIU to the Veteran for the time period from January 1, 2009, is at least in equipoise and, resolving any reasonable doubt in favor of the Veteran, TDIU is granted for this time period. The medical opinions are conflicting as to whether the Veteran's service-connected deformity of 5th toes of both feet with painful callus at base of 5th toes bilaterally, bilateral shoulder disabilities, and PTSD rendered him unable to obtain or maintain gainful employment since January 1, 2009. The Board, therefore, must weigh the probative value of these opinions, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Although the extent and severity of the Veteran's deformity of 5th toes of both feet with painful callus at base of 5th toes bilaterally has not been resolved and will be addressed in the remand portion below, the January 2011 VA examiner acknowledged that even just the hammertoe deformity of the 4th and 5th toes, bilaterally, caused significant effects on the Veteran's occupation. More significantly, the November 2010 VA examiner considered the Veteran's occupational experience and opined that the Veteran was unable to work in his chosen occupation as a recycler of oil company materials into livestock panels for cattle ranchers due to his shoulder disabilities. The examiner reasoned that the Veteran's work involved lifting heavy metal pipes, fabricating and reshaping and metal pipes into livestock panels that weighed 125 pounds. The examiner added that it was difficult for the Veteran to work a sedentary job, because, he was personally involved in the business and would be unable to sit and direct his workers. The examiner stated that it was the opinion of this medical examiner that the Veteran was unable to work in his chosen field as a recycle of oil-type materials into livestock panels because of the degenerative joint disease in his shoulder. On the other hand, a VA examiner, in a May 2012 addendum opined that the Veteran's service-connected aggravation of 5th toe callus and hammer-toe deformity, his bilateral shoulder acromioclavicular joint degenerative joint disease do not (LESS THAN 50%) cause unemployability. The examiner reasoned that the Veteran was able to carry 125 lb iron panels until 33 years after discharge from service, which suggested his current shoulder limitations were not primarily due to three years' service in the military. The Board finds that the VA examiner's reasoning is flawed in that the length of time between the Veteran's service and the duration of his active service are things to consider when trying to determine whether or not a disease or disability is related to service and should have no bearing on assessing the current severity of the service-connected bilateral shoulder disabilities and the impact on the Veteran's current employability. The November 2010 VA examiner considered the evidence of record regarding the effects of his service-connected bilateral shoulder disabilities on his ability to obtain and maintain substantially gainful employment consistent with his occupation and experience. The November 2010 VA examiner provided detailed clinical analysis and rationale for his opinion. Although the November 2010 VA examiner did not address the Veteran's additional service connected and nonservice connected disabilities, it appears that he essentially found that the Veteran's bilateral shoulder disabilities, were the primary reason, and, on its own, rendered the Veteran unable to work. The VA examiner in the May 2012 addendum did not provide such detailed reasoning. Therefore, the May 2012 opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Based on this evidence and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for TDIU have been met from January 1, 2009. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 4.16. ORDER TDIU is granted for the period from January 1, 2009. REMAND In regards to the Veteran's deformity of 5th toes of both feet with painful callus at base of 5th toes, by way of history, in October 2011, the Board remanded the matter after VA examiners failed to offer any opinion as to whether the diagnosed bilateral metatarsalgia, bilateral weak foot with positive anterior drawer to the left ankle indicating unstable left ankle, or frequent mild foot sprains were related to the Veteran's service-connected foot hammertoes with callus at base of 5th toe bilaterally. See January 2011 VA examination and August 2011 VA podiatry examination with September 2011 addendum. In the October 2011 remand, the Board specifically requested that the claims file be returned to the August 2011 VA examiner, who was a podiatrist, or a VA medical examiner with similar expertise to identify all symptoms associated with the Veteran's service-connected foot disability (deformity of 5th toes of both feet with callus at base of 5th toes bilaterally) to include symptoms associated with diagnoses of bilateral metatarsalgia, bilateral weak foot with positive anterior drawer to the left ankle indicating unstable left ankle, and frequent mild foot sprains. The examiner was asked to identify any neurological manifestations of the Veteran's service-connected bilateral foot disability and indicate whether the Veteran's service-connected bilateral foot disability (including all associated symptoms) is moderate, moderately severe, or severe. In a May 2012 opinion, an attending VA physician erroneously focused on whether the Veteran had foot/toe disabilities that were related to his service, rather than ascertaining the severity of the Veteran's service-connected bilateral foot disability. The VA examiner also merely restated the medical evidence. Additionally, the examiner did not attempt to identify any neurological manifestations of the Veteran's service-connected bilateral foot disability and did not address whether the Veteran's service-connected bilateral foot disability (including all associated symptoms) is moderate, moderately severe, or severe as was requested in the October 2011 VA examination. Therefore, another VA opinion is required. A remand by the Court or Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Board is not complied with, the Board itself errs in failing to ensure compliance. Id. at 270-71; see also D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The Board also notes that where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, the case is REMANDED for the following action: 1. The claims file should be returned to the VA podiatrist who conducted the August 2011 VA examination. If the podiatrist is unavailable, the claims file should be forwarded to a VA medical professional with similar medical expertise. If it is felt that additional testing and examination is necessary, the Veteran should be scheduled for an additional VA podiatric examination. Based on the August 2011 VA examination findings and other evidence contained in the claims file or new examination, if necessary, the examiner should identify all symptoms associated with the Veteran's service-connected foot disability (deformity of 5th toes of both feet with callus at base of 5th toes bilaterally) to include symptoms associated with diagnoses of bilateral metatarsalgia, bilateral weak foot with positive anterior drawer to the left ankle indicating unstable left ankle, and frequent mild foot sprains. The examiner should also identify any neurological manifestations of the Veteran's service-connected bilateral foot disability, identify all nerve(s) involved and degree of impairment to include all symptoms and manifestations (whether the involvement is only sensory, or if it is characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, constant pain as well as a characterization of the symptoms as to whether they represent complete paralysis or incomplete paralysis). If incomplete paralysis is represented by the manifestations this should be characterized as mild, moderate or severe (with or without marked muscular atrophy). If possible, the examiner should indicate whether the Veteran's service-connected bilateral foot disability (including all associated symptoms) is moderate, moderately severe, or severe. To the extent possible, the examiner should distinguish symptoms and impairment attributable to the Veteran's service-connected disorders from those attributable to any other diagnosed disorders. All opinions must be accompanied by a rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided. 2. After any additional indicated development, readjudicate the issue on appeal. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs