Citation Nr: 1324703 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 08-26 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or by reason of being housebound. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. 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). This case was previously before the Board in February 2011 and October 2012, at which time it was remanded for further development to include VA medical examinations which addressed the current appellate claims. Such examinations were accomplished in March 2011, July 2012, and April 2013. As detailed below, the Board finds that this development is adequate for resolution of the TDIU claim. All other development directed by the Board's prior remands regarding the TDIU claim appears to have been substantially accomplished. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). For the reasons addressed in the REMAND portion of the decision below, further development is still required regarding the SMC claim. Accordingly, the claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is service-connected for coronary artery disease, evaluated as 60 percent disabling; diabetes mellitus type II, evaluated as 20 percent disabling; degenerative arthritis of the cervical spine with nerve root compression, evaluated as 20 percent disabling; degenerative arthritis of the lumbar spine with nerve root compression, evaluated as 10 percent disabling; as well as appendectomy residuals, fissure in anus, hemorrhoids, medial lipoma in the right scapula, and multiple hyperpigmented nevi and seborrheic keratoses which are all evaluated as zero percent disabling (noncompensable). 2. The record indicates that it is at least as likely as not the Veteran is unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for assignment of a TDIU due to service-connected disabilities are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.7, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION For the reasons stated below, the Board finds that the Veteran is entitled to TDIU due to his service-connected disabilities. As this represents a complete grant of the benefit sought on appeal for this issue, no further discussion of VA's duty to notify and assist is necessary regarding this claim. As noted in the Introduction, the SMC claim is addressed in the REMAND portion of the decision below. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran is currently service connected for coronary artery disease, evaluated as 60 percent disabling; diabetes mellitus type II, evaluated as 20 percent disabling; degenerative arthritis of the cervical spine with nerve root compression, evaluated as 20 percent disabling; degenerative arthritis of the lumbar spine with nerve root compression, evaluated as 10 percent disabling; as well as appendectomy residuals, fissure in anus, hemorrhoids, medial lipoma in the right scapula, and multiple hyperpigmented nevi and seborrheic keratoses which are all evaluated as zero percent disabling. His overall combined disability rating is 80 percent. See 38 C.F.R. § 4.25. Therefore, he meets the minimum schedular percentage criteria for a TDIU. 38 C.F.R. § 4.16(a). Accordingly, the Board must now determine whether the record reflects he is unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disabilities. The record reflects the Veteran last worked in July 1989. However, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose. The record reflects that the Veteran completed 4 years of college, and that he last worked as the director of a trade school. See August 2006 VA Form 21-8940 (Application for Increased Compensation Based Upon Unemployability). Various competent medical opinions have been promulgated in this case regarding the Veteran's employability. For example, the February 2007 VA examiner opined that the Veteran would be employable in a sedentary to light duty occupation with his heart condition. In a September 2007 letter, the Veteran's treating VA physician stated that the Veteran suffered from numerous co-morbidities, including diabetes mellitus type II, coronary artery disease, congestive heart failure, and osteoarthritis. The physician found that as such, the Veteran was unemployable. He also opined that the Veteran might be able to be considered for a desk/computer job but that his carpal tunnel syndrome would make that impossible. In a February 2008 statement, the Veteran's private physician indicated that multiple medical problems prevented the Veteran from being able to prepare food and required some assistance with bathing due to gait instability. The physician indicated that the Veteran's problems were due his gait instability and loss of consciousness and/or falling on numerous occasions. The physician opined that this was probably a consequence of the Veteran's coronary artery disease, bradycardia, severe osteoarthritis, peripheral neuropathy and autonomic dysfunction. He further opined that almost all of these problems were the result of his diabetes mellitus or that his diabetes mellitus significantly exacerbated these conditions. One of the March 2011 VA examiners opined, to include in a July 2012 addendum, that no evidence was found of any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Further, the examiner stated the Veteran was capable of sedentary to light duty employment, based on his service-connected conditions alone, if he so chooses. In a March 2012 addendum, which included review of treatment records that were not on file at the time of examination itself, the examiner reiterated this opinion, noting that no new objective information was obtained; that there was no documentation of recent hospitalizations, ER visits or acute aggravation of medical condition, other than normal progression of his conditions; that the information provided only demonstrated adequate management and natural progression of already diagnosed conditions; and that there was no evidence of further precipitated/aggravation other than what is expected as member advances age. Another March 2011 VA examiner (aid and attendance) opined that alone or in the aggregate the service-connected conditions render the Veteran unable to secure and follow a substantially gainful occupation. The July 2012 VA examiner indicated the Veteran had minimal functional limitations due to his service-connected coronary artery disease and cervical spine disorder; and no functional limitations due to his service-connected diabetes mellitus, lumbar spine disorder, appendectomy, fissure in anus, hemorrhoids, lipoma medial right scapula, and multiple hyperpigmented nevi and sebbhoreic keratoses. It was also indicated that his coronary artery disease, diabetes mellitus, and back conditions (cervical and lumbar spine) did not prevent him from securing or following substantially gainful employment. In addition, it was indicated that none of the service-connected disabilities impacted his ability to work. As detailed in the prior remands, the Board found deficiencies/conflicting evidence in the aforementioned medical opinions. For example, the February 2007 VA examiner did not take into consideration all of the Veteran's disabilities for which he was service-connected but only provided an opinion with regards to the Veteran's heart condition. Similarly, the September 2007 VA physician also did not consider all of the Veteran's service-connected disabilities when rendering his opinion about whether the Veteran was unemployable. The opinions of the March 2011 and July 2012 VA examiners was conflicting, as one examiner found the Veteran's service-connected disabilities alone or in the aggregate rendered him unable to secure and follow substantially gainful employment, while the other examiners found that his service-connected disabilities did not preclude him from sedentary employment. Further, it does not appear that the March 2011 VA aid and attendance examiner, or the July 2012 VA examiner, provided rationale in support of their opinions. Moreover, none of the VA examiners addressed whether the Veteran's documented syncopal episodes were either symptoms of his service-connected coronary artery disease or diabetes mellitus or were the proximate result of or aggravated by these service-connected disabilities. In view of the above, as well as the fact the Veteran's private physician identified his syncopal episodes as being related to his service-connected coronary artery disease and/or diabetes mellitus and has also identified such episodes as a primary condition that renders the Veteran unemployable and unable to independently perform some activities of daily living, the Board determined in October 2012 that another remand was required to clarify whether such conditions were either symptoms of current service-connected disabilities or were discreet disabilities either caused or aggravated by the Veteran's service-connected disabilities. The Veteran underwent a VA examination in April 2013, which was conducted by the March 2011 VA examiner who promulgated the opinion against the TDIU claim. The examiner opined that after careful review of the claims folder, it was concluded that the most likely etiology of instability, gait disturbances, and "supposed syncope" was secondary to diagnosis of vertigo; and that this condition was not caused by or related to the Veteran's service or his service-connected disabilities. However, the examiner did not explicitly address the matter of secondary aggravation. Although the examiner stated that there was no evidence of further precipitated/aggravation other than what is expected as member advances age this appears to only be a reiteration of the March 2012 addendum. The Board also observes that in his supporting rationale, the examiner listed the various conditions that were noted as being the cause of vertigo, and none of the service-connected disabilities is included in that list. However, the examiner also noted that diabetes is associated with the condition. Further, the examiner stated that neck trauma could also cause vertigo, and the Veteran is service-connected for a cervical spine/neck disorder. It is noted that the examiner was not explicitly requested to address the issue of whether the symptoms of instability, gait disturbance and/or syncope were due to the service-connected cervical spine disorder. In short, even though the April 2013 VA examiner concluded that the vertigo was not caused by either the service-connected coronary artery disease or diabetes mellitus, he did not explicitly rule-out secondary aggravation and indicated that diabetes mellitus is associated with vertigo. In other words, this opinion does not explicitly refute the February 2008 private physician's opinion that these symptoms were exacerbated by the diabetes mellitus. The April 2013 VA examiner also indicated that the vertigo could be due to neck trauma, and the Veteran is service-connected for such a disability. The Board also notes the examiner appears to use a higher standard for establishing entitlement to TDIU than what is mandated by law. Specifically, the examiner states that it would not be "impossible" for the Veteran to work. However, the law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and that where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. In view of the foregoing, the Board concludes that the opinions of the April 2013 VA examiner regarding the Veteran's ability to obtain and/or maintain substantially gainful employment, to include in March 2011 and July 2012, are entitled to little probative value in the instant case. The Board also reiterates that the September 2007 VA treating physician and March 2011 VA aid and attendance examiner did opine that the Veteran was unemployable due to his service-connected disabilities, and these opinion appear to be regardless of whether the symptoms of vertigo/syncope were due to the service-connected disabilities. Moreover, the Veteran's own contentions reflect his service-connected disabilities are such that he would not be capable of even sedentary employment. For these reasons, the Board finds that the record indicates that it is at least as likely as not the Veteran is unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disabilities. Resolving reasonable doubt in his favor, the Board finds that TDIU is warranted in this case. ORDER Subject to the law and regulations governing payment of monetary benefits, entitlement to a TDIU due to service-connected disabilities is granted. REMAND The Court has held that, where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall. In addition, once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, the Board found the April 2013 VA examiner's opinion to be deficient regarding whether the symptoms of instability, gait disturbance and/or syncope are due to service-connected disabilities. Moreover, the examiner's own rationale indicates that these symptoms may be due to his service-connected cervical spine disorder. Inasmuch as the Veteran's private physician has indicated he requires aid and attendance due to such symptoms, a remand is required in order to clarification from this examiner. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Board further notes that, as part of its remand directives, the AMC/RO were instructed to adjudicate the Veteran's claims for service connection for gait instability and syncopal episodes in the first instance, and then readjudicate the Veteran's claims of entitlement to a TDIU and SMC based on the need for regular aid and attendance. Although the TDIU and SMC claims were addressed in the April 2013 Supplemental Statement of the Case (SSOC), no rating decision on these service connection claims is shown to have been promulgated in the evidence available for the Board's review. Therefore, a remand is also required to correct this deficiency. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. After physically or electronically associating any pertinent records with the claims folder, return the Veteran's claims folder to the April 2013 VA examiner for clarification of the opinion expressed therein. Specifically, the examiner must indicate how diabetes mellitus is associated with the symptoms of instability, gait disturbance and/or syncope if the diabetes did not cause or aggravate these symptoms. Moreover, the examiner must indicate whether it is at least as likely as not that these symptoms are due to the Veteran's other service-connected disabilities, to include his cervical spine disorder in light of the comments regarding neck trauma. A complete rationale for any opinion expressed must be provided. If the examiner is unavailable, then the requested opinion should be promulgated by another appropriately qualified clinician. If additional testing or examination is deemed necessary, then one should be conducted. 2. After completing any additional development deemed necessary, adjudicate the Veteran's claims for service connection for gait instability and syncopal episodes in the first instance, and then readjudicate his claim of entitlement to SMC based on the need for regular aid and attendance. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a SSOC, which addresses all of the evidence obtained after the issuance of the last SSOC in April 2013, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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