Citation Nr: 1337880 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-30 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a sleep disability, to include sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) for the period from June 10, 2005 through August 6, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to July 1991. He also had a period of active duty for training (ACDUTRA) with the Army National Guard from November 26, 1984 to April 10, 1985. These matters initially came before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In that decision, the RO denied entitlement to service connection for sleep apnea and denied entitlement to a TDIU. In June 2007, the RO granted a temporary total (100 percent) rating for the Veteran's service-connected PTSD on the basis of hospitalization in excess of 21 days during the period from August 7, 2006 through September 30, 2006. In July 2009, the RO granted an increased (100 percent) rating for PTSD, effective May 19, 2009. In March 2011, the Board remanded the issues of entitlement to service connection for a sleep disability and entitlement to a TDIU for the period prior to May 19, 2009 for further development. The Appeals Management Center (AMC) awarded a TDIU, effective from October 1, 2006 to May 19, 2009, by way of a March 2012 decision. In February 2013, the Board remanded the issues as listed above for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and considered as part of this appeal. The issue of entitlement to service connection for a sleep disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. During the period from June 10, 2005 through August 6, 2006, the Veteran was service-connected for the following disabilities: PTSD, rated 30 percent disabling; a restrictive lung condition, rated 30 percent disabling; and a chronic low back strain, rated 10 percent disabling. His combined disability rating was 60 percent. 2. During the period from June 10, 2005 through August 6, 2006, the Veteran's service-connected disabilities prevented him from securing and following all substantially gainful employment for which his education and occupational experience would have otherwise qualified him. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities were met during the period from June 10, 2005 through August 6, 2006. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is awarding the claim for a TDIU for the entire period that remains on appeal, the claim is substantiated, and there are no further VCAA duties at this time. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis VA will grant entitlement to a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "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 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 total rating based on individual unemployability 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). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In this case, the Veteran was service-connected for the following disabilities during the period from June 10, 2005 through August 6, 2006: PTSD, rated 30 percent disabling; a restrictive lung condition, rated 30 percent disabling; and a chronic low back strain, rated 10 percent disabling. His combined disability rating was 60 percent. As the Veteran did not have a single service-connected disability rated at 60 percent or more and the combined rating for his service-connected disabilities was 60 percent, he did not meet the schedular requirements for a TDIU from June 10, 2005 through August 6, 2006. 38 C.F.R. § 4.16(a). However, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). In June 2013, the Director of C&P evaluated the Veteran's TDIU claim under the provisions of 38 C.F.R. § 4.16(b). The Director concluded that during the period from June 10, 2005 through August 6, 2006, the Veteran was not found to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Director explained that the evidence revealed that the Veteran had worked in August 2006 for the Department of Defense and that a "Request for Employment Information in Connection with Claim for Disability Benefits" form (VA Form 21-4192), which could have provided information material to the Veteran's claim, was not received. Although there was an opinion dated in June 2007 that it was infeasible to provide the Veteran with training leading to gainful employment under the VA Vocational Rehabilitation Program due to the severity of his service-connected and non service-connected disabilities, a treatment note dated in February 2009 indicated that he had last worked in September 2008. Moreover, the Director explained that VA treatment records dated from September 2006 to June 2009 indicated that the Veteran continued to receive treatment for his service-connected disabilities, but there was no indication that such disabilities prevented him from engaging in sedentary employment. Overall, there was no additional evidence showing that he was unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. The Board can review the decision of the Director of C&P with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination. See Anderson v. Shinseki, 22 Vet. App. 423 (2008). Thus, the remaining question is whether the Veteran's service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him. Medical records dated from June 1993 to March 1997 and the Veteran's testimony during a March 1994 hearing at the RO and a December 1996 Board hearing reveal that he was employed at a manufacturing plant prior to service, but that he was unemployed during this period and reportedly had difficulty maintaining employment due to his disabilities. For example, he reported during the December 1996 hearing and during a December 1995 psychiatric evaluation at East Central Mental Health/Mental Retardation (East Central) that he had held four different jobs since his discharge from service in 1991 (including employment at a warehouse, custodial work at a military facility, and employment involving security), that he experienced difficulties with such employment due to various medical and psychiatric problems (i.e. back pain, testicle pain, shortness of breath, anger, and anxiety), and that the longest he had been employed was between one and a half and two months. He had lost various jobs due to such things as an inability to provide full production, anger, irritability, poor concentration, and difficulty working with others. An April 1997 psychiatric examination report from Sandra E. Cline, Ph.D. indicates that the Veteran had a twelfth grade education, that he had worked prior to service as a labeler and as a chicken grader, and that following service he was employed for two months as a janitor, for one month as a grocery selector, and for one month as a security person. He lost his job as a janitor due to worsening depression (with associated anger and irritability) and pain, he was unable to perform the duties of a grocery selector (i.e. walk long aisles, pull groceries off shelves, and load groceries on pallets), and was "let go" from his security job because he was unable to perform the duties of the job (i.e. sweeping and prolonged walking) due to right leg and back problems. Dr. Cline diagnosed the Veteran as having PTSD and severe major depressive disorder and she assigned a Global Assessment of Functioning (GAF) score of 40, indicative of major impairment. She concluded that the Veteran would work well with supervisors and coworkers "only as long as no one said or did something that he took the wrong way." Also, it was possible that he could return to work at some point if his pain was relieved. In a June 1997 letter, Dr. Cline stated that the Veteran was experiencing both major depression and PTSD. After a thorough and multidisciplinary workup of his symptoms was completed, it was thought that he would benefit from some type of work that would take into account the many problems that had caused him to lose jobs in the past. His prognosis was fair if he had someone to help identify his skills and subsequently place him (at least initially) in a setting where he could gain some confidence. A report from the Central Alabama Easter Seal Rehabilitation Center dated in July 1997 reflects that the Veteran underwent a vocational evaluation at that facility. The evaluator noted that the way in which the Veteran came across indicated that he was in no condition to work without significant improvement. The Veteran reported difficulty sleeping due to physical discomfort and worry, he did not attend the program on one day because he had no physical or mental energy, and he required extra breaks to rest while performing tasks on another day of the program. His affect was flat, he did not interact with anyone, he appeared troubled and in his own private world (although he was able to respond to the situation around him and perform Basic Test and Situational Assessment activities), physical and mental stamina to complete activities on a day-to-day basis was not established or observed, and he was limited to relatively unskilled tasks. Overall, the evaluator indicated that he had "no confidence in recommending work" for the Veteran because there would be questions as to his ability to cope with stress, frustrations, and his physical problems. Some industrial work appeared to match his interests and ability level if an adequate functioning level could be established. However, he was not a good candidate for work at the time of evaluation. Treatment records dated from July 1998 to April 2006, VA examination reports dated in July 1998, December 1999, and February and April 2001, and a "Veteran's Application for Increased Compensation Based on Unemployability" form (VA Form 21-8940) dated in June 2005 indicate that the Veteran had a high school education and that he had employment experience at a warehouse doing physical work, as a janitor, and as a poultry inspector. At the time that he completed the VA Form 21-8940 in June 2005, he had last worked sometime between 1991 and 1993, had been unemployed since that time, and began receiving Social Security Administration (SSA) disability benefits. He reportedly felt strained trying to keep a job, lost jobs easily, stopped working due to mood swings and shortness of breath, and was unable to secure or follow any substantially gainful occupation due to his service-connected back disability, psychiatric disability, and lung disease. He sought employment through the VA Vocational Rehabilitation Program during this period and was assigned GAF scores of 47 to 65, which is indicative of serious to mild impairment. The examiner who conducted the December 1999 VA examination opined that the Veteran appeared to be "totally and permanently disabled due to his physical and psychiatric disorders." A September 2006 VA discharge summary (VA Form 19-1000) reveals that the Veteran was apparently working part time at an unspecified job. However, he reportedly did not think he could work and felt as if he was unable to do physical work like he had done in the past. He was diagnosed as having, among other things, PTSD, affective psychosis not otherwise specified (which was possibly subsumed by the PTSD diagnosis), and cocaine abuse. A GAF score of 45 was assigned (indicative of serious impairment) and the medical professionals who completed the discharge summary indicated that the Veteran was "not employable." A May 2007 examination report from Charles McArthur, Ph.D. indicates that the Veteran worked as a labeler and stacker for a food company from 1982 to 1986, as a poultry inspector from 1986 to 1991 while in the National Guard and for a brief period after his active duty service ended in July 1991, and as a janitor from May to September 2006 at two facilities. He had been unemployed since September 2006. He was fired from his job as a poultry inspector following his separation from service because his PTSD symptoms resulted in problems with his supervisor. Also, he was laid off from one of his janitorial jobs because he pulled a muscle and was unable to work. His transferable job skills included skills in supply, janitorial work, stacking, and inspecting. He desired to be retrained for a different job because he was unable to do anything physical. Diagnoses of major depression, generalized anxiety disorder, and PTSD were provided and Dr. McArthur opined that the Veteran was "infeasible for a training program." In his September 2007 substantive appeal (VA Form 9), the Veteran reported that he had tried to work throughout the years, but that "things always went wrong due to [his] PTSD," which was his biggest problem. He explained that most companies would not hire individuals with PTSD. Although he attempted to gain employment through the VA Vocational Rehabilitation Program, it was determined that he was infeasible for training leading to gainful employment. (A June 2007 letter from a VA Vocational Rehabilitation Counselor confirms that the Veteran was determined to be infeasible for training leading to gainful employment through the VA Vocational Rehabilitation Program due to the severity of his service-connected and non service-connected disabilities). During a November 2007 VA psychiatric examination and on a March 2008 VA Form 21-8940, the Veteran reported that he had last worked full time in 1991, but that "everything [had] been downhill" since that time. He had lost jobs due to his back disability and PTSD and he had not held many jobs due to the intensity of his anger and fear that "something was going to happen." He reportedly worked 30 hours per week as a janitor from April to August 2006. In sum, the evidence reflects that the Veteran was unable to maintain any significant gainful employment for the entire period from June 10, 2005 through August 6, 2006. Although there is evidence of some employment during this period, any such employment appears to have been short term and the Veteran has consistently reported an inability to maintain employment due to his service-connected psychiatric and physical disabilities. Although he has provided some varying statements concerning his employment history, there are several medical opinions of record that reflect that he is unable to perform employment due to his service-connected disabilities. For example, although the Veteran was apparently employed part time at the time that the September 2006 VA discharge summary was completed, the medical professionals who completed the discharge summary indicated that he was "not employable" and assigned a GAF score of 45 (indicative of serious impairment and an inability work). Also, several other GAF scores that were assigned reflected an inability to work. In light of the above evidence and the medical opinions of record, the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities combined to prevent him from securing and following substantially gainful employment consistent with his education and occupational experience during the period from June 10, 2005 through August 6, 2006. Hence, resolving reasonable doubt in favor of the Veteran, entitlement to a TDIU is granted during this period on an extraschedular basis. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.16(b). ORDER Entitlement to a TDIU, during the period from June 10, 2005 through August 6, 2006, is allowed, subject to the regulations governing the award of monetary benefits . REMAND Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he 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). In this case, the Veteran contends that he has a current sleep disability, to include sleep apnea, which is related to sleep problems that he began to experience in service and has continued to experience in the years since that time. In the alternative, he claims this his current sleep disability is related to his service-connected PTSD. A VA examination was conducted in June 2011 and the Veteran was diagnosed as having obstructive sleep apnea. In February 2013, a VA family nurse practitioner reviewed the Veteran's claims file and opined that his diagnosed sleep apnea was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. She reasoned that there was no evidence to support that the Veteran suffered from sleep apnea while in service. In a May 2012 letter, Marvin W. Sexton, M.D. reported that the Veteran had been diagnosed as having moderate obstructive sleep apnea, severe psychophysiological insomnia, PTSD, and circadian rhythm abnormalities. He had reported that his sleep was normal prior to the Gulf War, but that he subsequently developed severe sleep disturbance. Dr. Sexton opined that there was little doubt that the Veteran's psychophysiological insomnia, PTSD, and circadian rhythm abnormalities were all directly ascribable to his time in the Gulf War. Dr. Sexton additionally opined that the Veteran's obstructive sleep apnea also developed during the Gulf War and that a large portion of his sleep disturbance was due to his Gulf War experience. There was no further explanation or reasoning provided for this opinion. The February 2013 opinion is insufficient because it is entirely based on a lack of objective clinical evidence of treatment for sleep apnea in service and does not reflect consideration of the Veteran's reports of sleep problems in service and of a continuity of symptomatology in the years since service. In this regard, a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Additionally, the medical professional who provided the February 2013 opinion did not acknowledge or discuss Dr. Sexton's May 2012 opinion. Thus, a remand is necessary to afford the Veteran a new VA examination in order to obtain an adequate opinion as whether his current sleep disability is directly related to service. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2013); see 38 C.F.R. § 19.9 (2013). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569. Moreover, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). Evidence associated with the Veteran's claims file, including an October 2002 statement from the Veteran (VA Form 21-4138) and a March 2003 "Report of Contact" form (VA Form 119) indicate that the Veteran is in receipt of SSA disability benefits for an unspecified disability. The United States Court of Appeals for Veterans Claims has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination have not yet been associated with the claims file and may be relevant. Additionally, the May 2012 letter from Dr. Sexton indicates that he has provided treatment to the Veteran for his sleep problems. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and ask for a release to obtain the records. If the Veteran does not provide the release, VA should ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not been taken with regard to any relevant treatment records from Dr. Sexton. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. Ask the Veteran to complete an authorization for VA to obtain all records of his treatment for a psychiatric disability and a sleep disability from Dr. Sexton. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be asked to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. All such notification must be documented in the claims file. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records and any records from the SSA, schedule the Veteran for a VA examination by a physician to determine the etiology of his current sleep disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. For each current sleep disability identified that is separate and distinct from the Veteran's service-connected psychiatric disability (i.e. any such disability diagnosed since March 2005, to include sleep apnea), the examiner shall indicate whether it is at least as likely as not (50 percent probability or more) that the current sleep disability had its clinical onset in service, is related to the Veteran's reported sleep problems in service, or is otherwise the result of a disease or injury in service. In formulating the above opinions, the examiner shall specifically acknowledge and comment on all sleep disabilities that are separate and distinct from the Veteran's service-connected psychiatric disability that have been diagnosed since March 2005 (to include sleep apnea), the Veteran's reports of sleep problems in service and of a continuity of symptomatology in the years since service, and Dr. Sexton's May 2012 letter. The absence of evidence of treatment for sleep problems in the Veteran's service treatment records or of treatment for such problems for years after service cannot, standing alone, serve as the basis for a negative opinion. The examiner must provide reasons for each opinion given. 4. If the benefit on appeal remains denied, the agency of original jurisdiction (AOJ) shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs