Citation Nr: 1334407	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  05-20 294	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in San Juan, the Commonwealth of Puerto Rico



THE ISSUES

1.  Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected status post cerebrovascular accident (CVA).

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities on an extraschedular basis under 38 C.F.R. § 4.16(b) prior to May 8, 2012.

3.  Entitlement to a TDIU rating by reason of service-connected disabilities on a schedular basis under 38 C.F.R. § 4.16(a) beginning on May 8, 2012.



ATTORNEY FOR THE BOARD

J. Smith, Counsel


INTRODUCTION

The Veteran served on active duty from January 1968 to August 1969.

These matters initially came before the Board of Veterans' Appeals (Board) on appeal from January 2005 and July 2005 rating decisions of the RO.

In February 2008 and October 2010, the Board remanded the case to the RO for additional development of the record.

In September 2012, the Board adjudicated claims involving hypertension and a right shoulder disorder, and remanded the claim for a higher rating for the CVA and entitlement to a TDIU rating for additional development of the record.

In a June 2013 rating decision, the RO awarded the Veteran service connection for depressive disorder and erectile dysfunction as residuals of the service-connected CVA, thereby increasing his combined service-connected disability rating.  

The June 2013 rating decision impacts the Veteran's claim for a TDIU rating.  By way of the decision, the Veteran does not meet the percentage requirements for a schedular TDIU rating  prior to May 8, 2012.  As such, the claim must be considered on an extraschedular basis for this time period. 38 C.F.R. § 4.16(b).  

However, after May 8, 2012, the Veteran is eligible for a TDIU rating on the basis that  he meets the percentage schedular requirements for that time period.  See 38 C.F.R. § 4.16(a).  The claim has been recharacterized as reflected on the title page.

The Board recognizes that in a June 2013 VA Form 21-4138, the Veteran disagreed with the effective dates assigned by the June 2013 rating decision.  

However, this appeal encompasses the issue of entitlement to a higher rating for residuals of the service-connected CVA.  The now service-connected depressive disorder and erectile dysfunction have been determined to be residuals of the CVA.  

The argument concerning an earlier effective date for depressive disorder and erectile dysfunction, as separate claims, will not be remanded for issuance of a Statement of the Case.  Manlincon v. West, 12 Vet. App. 238 (1999).  These arguments will be effectively addressed by adjudication of the increased rating claim that is already on appeal. 

The Board has considered documentation included in Virtual VA.

The claims involving a higher rating for the CVA and a TDIU rating prior to May 8, 2012 are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. 


FINDING OF FACT

Beginning on May 8, 2012, the service-connected disabilities are shown as likely as not to preclude the Veteran from securing and following substantially gainful employment consistent with his educational and occupational background.


CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, the criteria for the assignment of a TDIU rating beginning on May 8, 2012 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.321, 4.16, 4.19 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 3 8 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

In this decision, the Board grants entitlement to a TDIU rating beginning on May 8, 2012.  In light of the favorable disposition, the Board finds that further discussion as to VCAA is not required at this time.


Analysis

Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1) (2013).

Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation.  38 C.F.R. § 3.340(a)(2).

The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).

Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a).  Factors to be considered are the Veteran's education and employment history and loss of work-related functions due to pain.  Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991).

Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age.  38 C.F.R. § 3.341(a).  See also 38 C.F.R. § 4.19 (2013) (age may not be a factor in evaluating service- connected disability or unemployability) & Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993).

In this case, beginning on May 8, 2012, service connection is in effect for depressive disorder (rated as 50 percent disabling), peripherovascular insufficiency of the right lower extremity (rated as 20 percent disabling), peripherovascular insufficiency of the left lower extremity (rated as 20 percent disabling), arterial hypertension (rated as 10 percent disabling), status post CVA (rated as 10 percent disabling), and erectile dysfunction (rated as noncompenable).  

The combined evaluation for his service-connected disabilities is 80 percent beginning on May 8, 2012.  One disability, depressive disorder, is rated at least at 40 percent disabling.  Hence, the schedular criteria for consideration of a TDIU rating is satisfied beginning on May 8, 2012.  

On May 8, 2012, the Veteran was hospitalized due to symptoms of his psychiatric disorder.  He presented with symptoms of hallucinations, anxiety, depression and suicidal ideation with a structured plan.  His Global Assessment of Functioning (GAF) score was 25.  

In this regard, psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score.  According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness."  

According to the DSM-IV, a GAF of 21-30 indicates behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends.)  
  
On VA examination for the service-connected status post CVA in January 2013, the examiner reviewed the Veteran's claims file and examined the Veteran.  The Veteran reported a history of ischemic stroke in 2004 and a chronic subdural hematoma in 2010.  The examiner noted multiple lalcunar infarcts and petechial hemorrhages.  He suffered from insomnia, depression and constant anxiety.  He reported being limited in ambulation and having excessive forgetfulness and an inability to concentrate and make decisions.  His disability required continuous medication for control.  

The VA examiner opined that the Veteran had serious difficulties in ambulation and gait and that these difficulties, combined with his cognitive impairment, rendered him unemployable.

In a later portion of the report, the examiner again stated that "this Veteran ha[d] a serious brain vascular problems [sic] secondary to his s/c condition of hypertension. Due to these changes, and not taking into consideration his other health problems, he [was] considered to be unemployable."

On VA psychiatric examination in January 2013, the Veteran was diagnosed with depressive disorder.  His symptoms included a depressed mood, memory loss, difficulty understanding complex commands, and difficulty in establishing and maintaining effective work and social relationships.  The examiner opined, 

Based on the review of the c-file and the medical records, and, after taking a psychiatric history and performing a mental status exam, it [was] determined that [the] Veteran [was] not able to obtain, perform and secure a financial [sic] gainful employment. His neuropsychiatric condition [was] severe enough to render him unemployable.

Further, the record reflects that the Veteran has been in receipt of disability benefits through the Social Security Administration (SSA) since 2004 for the effects of his cerebrovascular disease.

The VA examiners' opinions, as well as the Veteran's own credible statements, indicate that the symptoms associated with his service-connected psychiatric and cerebrovascular disabilities have resulted in a significant occupational impairment since May 8, 2012.  

In addition, the Board notes that the May 8, 2012 VA treatment record reflects serious symptomatology, marked by a GAF score in the severe range.  

The Board finds the January 2013 VA examination reports fully adequate for purposes of adjudicating the Veteran's eligibility for a TDIU rating.  In this regard, the medical examiners' findings were factually accurate and fully articulated, and valid medical analyses were applied.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The opinions on unemployability were based on a review of the claims file and examinations of the Veteran, and the examiners explained the bases for the conclusions reached. 

Moreover, there is no evidence to the contrary of the January 2013 VA examiners' opinions.  Subsequent to this examination, a March 2013 VA examiner found that the Veteran's right shoulder disorder and genitourinary problems did not render him unemployable.  However, as the Veteran's right shoulder disorder is not a service-connected disability, and the opinion involving his genitourinary problems alone does not dispute the more recent findings as to the impact of his psychiatric and cerebrovascular disability on his unemployability. 

The Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 3.102.  See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56.

Accordingly, the Board finds that his entitlement to a TDIU rating for the period beginning on May 8, 2012 is warranted.


ORDER

A TDIU rating beginning on May 8, 2012 is granted, subject to the regulations governing the payment of VA monetary benefits.  


REMAND

After carefully considering the record, the Board finds that the claims remaining on appeal must be remanded for further development.  

A remand by the Board confers upon the Veteran, as a matter of law, the right to 
compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

The service-connected status post CVA is rated under Diagnostic Code 8099.  The rating criteria set forth in Diagnostic Code 8009 call for the vascular conditions to be rated as 100 percent disabling for six months following a CVA.  See 38 C.F.R. § 4.124a, Diagnostic Code 8009 (2013).  Thereafter, the disability is rated based on its residuals, with a minimum 10 percent rating assigned.  Id.

In September 2012, the Board remanded the claim in order to ascertain the residuals of the service-connected CVA.

A VA examination was conducted in January 2013.  The examiner identified a number of residuals.  Among these residuals were depressive disorder and erectile dysfunction.  Service connection was awarded for these two disabilities in a June 2013 rating decision.

The VA examiner also diagnosed sleep disturbances, including insomnia and sleep apnea requiring the use of breathing assistance devices.  

The VA examiner further found an abnormal gait.  Decreased muscle strength was found in the elbows, wrists, hands, knees, and ankles.  Deep tendon reflexes were impaired in the biceps, triceps, brachioradialis, knees, and ankles.  Muscle weakness was found in the bilateral upper and lower extremities. 

The report indicated that these manifestations were attributable to the Veteran's CVA.  However with regard to muscle weakness, the examiner noted that the Veteran's hepatic failure and hypothyroidism also contributed to the problem.

Subsequent to the January 2013 VA examination, the RO obtained additional opinions involving the Veteran's muscles and peripheral nerves.  

In a March 2013 muscle examination report, another VA examiner determined that the Veteran suffered from a muscle disorder involving the right shoulder, but other muscle groups were not found to be involved.  Muscle strength testing was normal in the wrists, hips, knees, and ankles, and was decreased in the shoulders and right elbow.  

In a March 2013 peripheral nerves examination report, the VA examiner found that the Veteran did not have a peripheral nervous system disorder and that any such disorder would be unrelated to the CVA.  On examination, his muscle strength was decreased in the elbows, wrists, hands, knees and ankles.  His deep tendon reflexes were normal in the left bicep, left tricep, left brachioradialis, knees and ankles.

The Board finds that this evidence should be reconciled prior to appellate adjudication as the January 2013 and March 2013 VA examination reports offer conflicting findings regarding the presence of muscle and nerve disorders.  The etiology of any such disorder must be clearly identified for the record.  

Additionally, it should be determined whether the Veteran suffers from a sleep disorder related to his CVA, independent from his service-connected psychiatric disorder.  

With regard to the claim for a TDIU rating prior to May 8, 2012, the Board finds that any decision with respect to the claim remanded herein may affect the Veteran's claim for a TDIU rating.  Therefore, the claims are closely related.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).  As the claims should be considered together, it follows that any Board action on the TDIU claim, at this juncture, would be premature.  

In this regard, the record shows the Veteran has been in receipt of disability benefits through the SSA since 2004 for the effects of his cerebrovascular disease.  In March 2011, VA examiners found that the Veteran's hypertension and cerebrovascular disease, individually, did not render him unemployable.  

Accordingly, these remaining matters are REMANDED to the RO for the following action:

1.  The RO then should have the Veteran scheduled for a VA examination to determine the nature and current severity of the service-connected residuals of the cerebrovascular accident.  

The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination.

The examiner should identify all residual manifestations due to the service-connected cerebrovascular accident for the entire appeal period.  

If a residual disability due to the cerebrovascular accident is found, the examiner should offer findings in accordance with the applicable worksheet for each related disability.

The examiner should also respond to the following:

(a.)  The examiner should specifically identify any muscular disorder due to the service-connected cerebrovascular accident.

The examiner should also specifically identify any nerve disorder due to the service-connected cerebrovascular accident.

In so doing, the examiner should reconcile the conflicting findings of the January 2013 and March 2013 VA examiners.

(c.)  The examiner should specifically identify any sleep disorder, including insomnia and sleep apnea, due to the service-connected cerebrovascular accident.  The examiner should indicate whether this is a disorder independent from the already-service connected depressive disorder.

(d.)  The examiner should indicate whether the now-service connected residuals, depressive disorder and erectile dysfunction, were present for the entire appeal period.

Any opinions expressed by the examiner must be accompanied by a complete rationale.

If the examiner(s) are unable to provide the requested information with any degree of medical certainty, the examiner should indicate that. 

The examiner(s) should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report.  

2.  The Veteran is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2013).  

3.  After the requested examinations have been completed, the RO should review the examination reports to ensure they are in complete compliance with the directives of this REMAND.  If any report is deficient in any manner, the RO must implement corrective procedures at once.  

4.  After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence on file.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response.   

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

The Veteran 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).



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals


Department of Veterans Affairs