Citation Nr: 1323998 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-03 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a right hand disorder other than polyarthritis. 2. Entitlement to service connection for a left hand disorder other than polyarthritis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 3, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from May 1977 through September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in January 2009 and June 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In the January 2009 rating decision, the RO denied claims of service connection for claimed disabilities of the right and left hand. In a timely June 2009 Notice of Disagreement (NOD), the Veteran disputed these denials. After a Statement of the Case (SOC) was issued in January 2010, the Veteran perfected his appeal later that month, via VA Form 9 substantive appeal. In relation to the Veteran's service connection claims, the Board notes that service connection is already in effect for polyarthritis involving multiple joints, including his hands. In view of the foregoing law, the Board has recharacterized the issues to service connection for any disabilities of the right and left hand, other than polyarthritis. In the June 2009 rating decision, the RO denied the Veteran's claims for a TDIU. A timely NOD as to that issue was received from the Veteran in August 2009. After a statement of the case was issued in January 2010, the Veteran perfected his appeal in his January 2010 VA Form 9 substantive appeal. The issues of whether new and material evidence was received to reopen previous claims for service connection for right and left knee disorders other than polyarthritis have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for right and hand disorders other than polyarthritis are 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. At all times relevant to this appeal, the Veteran's combined disability rating met the requirements for a schedular TDIU under 38 C.F.R. § 4.16(a). 2. It is factually ascertainable from the evidence that the Veteran's service-connected bipolar disorder, depressed type, with recurrent features, rendered the Veteran unable to secure or follow a substantially gainful occupation as early as December 2007. CONCLUSION OF LAW The criteria for entitlement to a TDIU, for the period from May 14, 2008 through May 3, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159. Nevertheless, given the favorable action taken below as to the issue adjudicated herein, no further notification or assistance in developing the facts pertinent to that limited matter is required at this time. Indeed, any such action would result only in delay. I. TDIU By way of history, a formal application for a TDIU was received from the Veteran on May 14, 2009. As noted above, this claim was initially denied by the RO and a timely appeal was initiated and perfected by the Veteran. While the appeal was pending, the RO issued a June 2010 rating decision which granted a total 100 percent disability rating for bipolar disorder, depressed type, with recurrent psychotic features, effective from May 3, 2010. In that rating decision, the RO also declared that the Veteran's claim for a TDIU was moot in view of the total disability rating assigned for bipolar disorder, depressed type. A claim for a TDIU is, in essence, a claim for an increased disability rating. Norris v. West, 12 Vet. App. 413, 420 (1999). Generally, the effective date for an increased rating is the date of receipt of the claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38 C.F.R. § 3.157(b)(1); 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). The RO has erroneously determined that the Veteran's TDIU claim has been rendered completely moot by the total disability rating assigned for bipolar disorder. Rather, the Veteran's TDIU claim is more appropriately moot as of the May 3, 2010 effective date of the total schedular disability rating assigned for the Veteran's bipolar disorder. Accordingly, the question of whether the Veteran is entitled to a TDIU prior to May 3, 2010 remains on appeal before the Board. Subject to the foregoing, the Board also notes that the earliest possible date on which the Veteran may be entitled to a TDIU is May 14, 2008, or, one year before receipt of the Veteran's formal application for a TDIU. Under VA laws and regulations, a TDIU may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience; however, age and any impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned even where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining the above, the following will be considered as one disability: 1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor set forth under 38 C.F.R. § 4.26 , if applicable; 2) disabilities resulting from common etiology or a single accident; 3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; 4) multiple injuries incurred in action; or 5) multiple disabilities incurred as a prisoner of war. In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). The Veteran's combined disability rating has, at all times relevant to the Veteran's claim for a TDIU, met the threshold regulatory requirement for the award of a schedular TDIU under 38 C.F.R. § 4.16(a). In that regard, at all times relevant to this appeal, service connection was in effect for the Veteran for bipolar disorder, depressed type, with recurrent features, rated as 50 percent disabling; migraine headaches, rated as 50 percent disabling; and polyarthritis, rated as 40 percent disabling. Based upon the foregoing disability ratings, the Veteran's combined disability rating was 90 percent. The Board notes that the Veteran was also awarded a 10 percent disability evaluation for a scar on his right thigh, effective from July 17, 2008. Nonetheless, consideration of the additional scar rating still does not compute to a combined disability rating higher than 90 percent. 38 C.F.R. § 4.25. The evidence in this case shows that it is factually ascertainable from the evidence that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation as of December 2007, more than one year before his May 2009 formal TDIU application was received. As such, the Veteran is entitled to a TDIU, effective from May 14, 2008. In his May 2009 TDIU application, the Veteran asserted that he had not worked since June 2006 due to his service-connected disabilities. With regard to his occupational history, he reported that he had worked as a janitor from 1992 through 1997, followed by employment as a salesperson beginning in June 2006. He stated that he was educated through two years of college, but denied receiving any other education or training. In a July 2009 statement, the Veteran acknowledged that he was working approximately 22 hours per week while earning $11.72 per hour. According to the Veteran, he was unable to work a full shift and was sometimes unable to report for his scheduled work hours due to depression and pain symptoms. He added that the manager at his current employment was understanding and permitted him to work flexible hours. He added further that he had a history of problems with co-workers and that customers had even called the police on account of the Veteran's behavior. Consistent with the foregoing, VA treatment records beginning from 2005 show that the Veteran experienced significant psychiatric symptoms and pain symptoms associated with his polyarthritis. During treatment in December 2007, he reported that he had transitioned from full-time to part-time employment, but was still having a difficult time dealing with others and reporting to work due to his psychiatric symptoms. In April 2008, he reported to his VA psychiatric counselor that he was working only eight to 16 hours per week at a convenience store. The Veteran's finances were noted at that time as being "poverty level." In a February 2010 letter, the Veteran's VA psychiatric counselor, S.A., reported that he had been treating the Veteran since November 2007 for severe depression. He stated that during that over the course of treatment, the Veteran had struggled to hold his part-time position at a convenience store and experienced difficulty in trusting others. He stated that the symptoms associated with the Veteran's depression made it difficult for him to be dependable at work and that the only reason he had not been fired was because he was working for his friend. S.A. noted that the goal of the Veteran's treatment had been to manage the Veteran's part-time job. He reported that the Veteran was presently working five hour shifts three days per week from 3:00 a.m. to 8:00 a.m. According to S.A., any significant change in the Veteran's work schedule could bring on stress similar to what he experienced prior to 2007, when the Veteran experienced difficulties functioning at work. S.A. opined further that a more stressful work environment (either by increasing the Veteran's hours or by changing his work schedule) would likely impact the Veteran's depression negatively. The foregoing evidence shows that, as early as December 2007, the Veteran's service-connected psychiatric disability prevented the Veteran from maintaining full-time employment due to anxiety, depression, and distrust of other people which were resulting in poor relationships with his co-workers and conflict with customers which required police involvement. At that time, he was required to transition from full-time to part-time employment as part of ongoing psychiatric counseling and treatment. As noted in A.S.'s February 2010 letter, the Veteran has responded well to treatment, which has included curtailed work hours of 15 hours per week as a convenience store cashier during the 3:00 a.m. to 8:00 a.m. shift. Although the Veteran has, in a factual sense, been able to maintain some employment, as noted in his VA treatment records, he has only been able to sustain poverty level wages due to his dramatically decreased work hours. Under the circumstances, the Board finds that the Veteran is entitled to a TDIU, effective from May 14, 2008. To that extent, this appeal is granted. ORDER Entitlement to a TDIU is granted, effective from May 14, 2008 through May 2, 2010, subject to the laws and regulations governing the payment of monetary benefits. REMAND In relation to the Veteran's claims for service connection for right and left hand disorders other than polyarthritis, the Veteran has alleged that he injured his hands while climbing a track on a military personnel vehicle. Specifically, during a June 1988 Medical Board hearing during his active duty service, he stated that he popped the fifth finger on his right hand out of joint. During a March 2000 VA examination, he reported that he suffered dislocation injuries to the fingers on his left hand. The post-service VA treatment records include October 2000 x-rays which revealed the presence of a deformity of the distal end of the left fifth finger which was consistent with an old healed fracture injury. Subsequent VA treatment records appear to indicate ongoing diagnoses of osteoarthritis. VA examinations performed in March 2000, June 2002, October 2006, and August 2008 indicate the presence of traumatic deformities of the fifth fingers on both hands. During the August 2008 VA examination, the Veteran was diagnosed with posttraumatic arthritis of the hands. Despite these findings and diagnoses, neither the VA treatment records nor the previous VA examinations provide any opinion as to whether the traumatic deformities and posttraumatic arthritis in the Veteran's bilateral fifth fingers and hands are related to his active duty service. For these reasons, the Veteran should be arranged to undergo a VA examination to determine the nature and etiology of the traumatic deformities and posttraumatic arthritis in the Veteran's bilateral fifth fingers and hands. 38 C.F.R. § 3.159(c)(4). Prior to arranging the examination, and in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other treatment providers who have rendered treatment for his hands since February 2010. VA must then make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claims for service connection for right and left hand disorders other than polyarthritis. This letter must inform the Veteran about the information and evidence that is necessary to substantiate his claims, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a new VA examination to determine the nature and etiology of the traumatic deformities and posttraumatic arthritis in his bilateral fifth fingers and hands. The Veteran should be advised that it remains his responsibility to report for any scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided treatment for his hands since February 2010. 2. Obtain records for any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the RO should arrange for the Veteran to undergo a VA examination to determine the nature and etiology of the traumatic deformities and posttraumatic arthritis in the bilateral fifth fingers and hands. The entire claims file must be made available to the individual designated to examine the Veteran. All necessary tests and studies, to include an interview of the Veteran, physical examination of the hands and fingers, range of motion testing, and radiological studies, should be performed. The examiner should provide an opinion as to whether any traumatic deformities, posttraumatic arthritis, or disorder other than polyarthritis is present in the Veteran's hands and/or fingers, and if so, whether it is at least as likely as not that the diagnosed disorders were sustained by the Veteran during his active duty service, to include as a result of purported injuries to his hands while attempting to climb a military personnel vehicle during service. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issue of entitlement to service connection for right and left hand disorders other than polyarthritis should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs