Citation Nr: 1337900 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-06 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to a total disability rating based on individual unemployability (TDIU). 2. Entitlement to special monthly compensation (SMC) at the rate specified at 38 U.S.C.A. § 1114(s) for the period prior to March 26, 2007. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran, his wife, and his daughter ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1969. He is a Vietnam Veteran who was awarded the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In July 2009, the Veteran, his wife, and his daughter testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. The Board previously remanded the TDIU issue in November 2009, February 2012, and November 2012. It is now properly before the Board. FINDINGS OF FACT 1. The Veteran was unable to secure or follow a substantially gainful occupation, for the entire appeal period prior to March 26, 2007, due to service connected service-connected residuals of shell fragment wound of the left hand. 2. The Veteran has been unable to secure or follow a substantially gainful occupation, for the entire appeal period from March 26, 2007, forward, due to service-connected residuals of shell fragment wound of the left hand. 3. The Veteran's service-connected disabilities of hearing loss; tinnitus; residuals of shell fragment wound, left hand; post traumatic stress disorder (PTSD); and scar as residual status post exotosectomy of the left middle finger, are due to multiple injuries incurred in action. 4. The Veteran's service-connected residuals of shell fragment wound, left hand, entitle him to a total rating (TDIU) and, independent of disability due to ischemic heart disease or scar as residual of status post exotosectomy left middle finger, he has additional disabilities rated at 60 percent or more for the entire appeal period prior to March 26, 2007 and from March 26, 2007, forward. CONCLUSIONS OF LAW 1. The criteria for TDIU have been met for the entire appeal period prior to March 26, 2007. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.340, 3.341, 4.16(a) (2013). 2. The criteria for TDIU have been met for the entire appeal period from March 26, 2007, forward. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.340, 3.341, 4.16(a) (2013). 3. The criteria for SMC at the housebound rate have been met for the entire appeal period prior to March 26, 2007. 38 U.S.C.A. § 1114(s) (West 2002 & Supp. 2013); 38 C.F.R. § 3.350(i) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that TDIU is warranted because he has been unable to secure or follow a substantially gainful occupation due to service connected disability for the entire appeal period. He has asserts that the service-connected disability of residuals of shell fragment wounds of his left hand render him unemployable. I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, any error with respect to either the duty to notify or the duty to assist is harmless, and no further discussion of these duties is necessary. Similarly, any lack of compliance with a prior remand directive is harmless error. II. Jurisdiction to Grant TDIU 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 (2013). In general, total disability compensation ratings may be assigned under the provisions of § 3.340. 38 C.F.R. § 3.341 (2013). Schedular TDIU may be assigned by in the first instance by the Board or the RO when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2013). Multiple injuries incurred in action will be considered for the purpose of one 60 percent disability. Id. In cases where these percentages are not met, but the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation and Pension Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b) (2013). In the instant case, service connection has been established for the following disabilities: (1) Ischemic heart disease, rated 100 percent disabling effective March 26, 2007; (2) post traumatic stress disorder (PTSD), rated 70 percent disabling since July 9, 2009, 30 percent disabling from December 2, 2003 to July 9, 2009, and 10 percent disabling from May 20, 2001 to December 2, 2003; (3) hearing loss, rated 30 percent disabling since December 2, 2003 and 10 percent disabling from March 16, 1994 to December 2, 2003; (4) residuals of shell fragment wound (left hand), rated 20 percent disabling since October 9, 1996; (5) tinnitus, rated 10 percent disabling since June 1994; and (6) scar as residual of status post exotosectomy left middle finger, rated 10 percent disabling since May 22, 2003. Having again reviewed the history of the Veteran's service-connected disabilities, the Board finds that, other than ischemic heart disease, the Veteran's disabilities are due to multiple injuries incurred in action. Service connection for residuals of shell fragment wound of the left hand was granted for such combat related injury, and service connection for the scar of the left middle finger was based on treatment linked to that combat related injury. Service connection for hearing loss and tinnitus was granted based on the Veteran's report that although he utilized hearing protection during training he did not use hearing protection during his combat tour in Vietnam. Service connection for PTSD was granted based on his combat experience, as documented in a March 2002 VA examination report. The Board finds that the language of "multiple injuries incurred in action" is broad enough to encompass an in-service stressor. Without consideration of the ischemic heart disease, the combined rating for the Veteran's service connected disabilities has been 60 percent or greater since December 2, 2003. See 38 C.F.R. § 4.25 (2013). The significance of this fact is that the Board has jurisdiction under 38 C.F.R. § 4.16(a) to grant TDIU for the period prior to March 26, 2007, when the Veteran's disabilities were not rated as 100 percent disabling, and for the period from March 26, 2007, forward, when the Veteran was in receipt of a 100 percent rating for ischemic heart disease. Also, TDIU based on one disability, in this case based on residuals of shell fragment wound of the left hand, together with additional disabilities independently ratable at 60 percent or greater, is of benefit to the Veteran in the event that his current 100 percent rating (effective beginning on March 26, 2007) is ever reduced, both for purposes of a total rating and for continued eligibility for SMC at the rate specified at 38 U.S.C.A. § 1114(s). III. Jurisdiction Over the SMC Issue Although the issue of entitlement to SMC at the rate specified at 38 U.S.C.A. § 1114(s) for the period prior to March 26, 2007 was not listed in the previous remands, the Board has jurisdiction over it because it is part and parcel to his claim of entitlement to increased compensation, i.e., his claim of entitlement to TDIU. [The matter of entitlement to SMC at the rate specified at 38 U.S.C.A. § 1114(s) for the period from March 26, 2007 was granted by the October 2011 rating decision.] VA has a duty to maximize a claimant's benefits. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (explaining that "[t]he Secretary is required to maximize benefits and citing AB v. Brown, 6 Vet. App. 35, 38 (1993) for the proposition that a claimant is presumed to be seeking the maximum benefits under law and regulation). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement special monthly compensation (SMC) under 38 U.S.C.A § 1114(s). See Bradley, 22 Vet. App. at 294 (explaining that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim"); see also Akles v. Derwinski, 1 Vet. App. 118, 121 (stating that it is "VA policy specifically provides for the consideration of special monthly compensation where it may be applicable and the veteran does not place his eligibility at issue."). IV. Merits Given the evidence relevant to the period prior to March 26, 2007, the Board is left with reasonable doubt as to whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. Evidence relevant to that period shows that the Veteran consistently reported that his residuals of shell fragment wounds of his left hand prevented him from working and provided consistent logical reasons based on his experience. The expert evidence relevant to the issue is at least in equipoise. During a July 2003 VA hand examination, he reported that left hand pain prevented him from working other than odd jobs since 1997. The examiner indicated that he could work if the work did not involve his left hand. A report of a February 2004 VA psychiatric examination includes a medical opinion that the Veteran's psychiatric disability did not preclude employment but that he had difficulty working due to his hearing loss and left hand disability. In a June 2004 letter, the Veteran reiterated that he had been unable to engage in full time employment because of difficulty using his left hand. In his August 2004 application for TDIU, the Veteran reported that he worked for a major retail department store from 1971 to 1991 and he testified in June 2002 that this involved freight handling. In his November 2004 application for TDIU, he reported that he worked 38 hours per week at a major hardware store from 1991 to 1997. A March 2005 VA psychiatric examination report includes that the Veteran had received a General Equivalency Diploma (GED) and that since 1997 his employment consisted of delivering newspapers two hours per day. The examiner stated that the Veteran was "capable of working at least part time." During the July 2009 Board hearing, the Veteran testified that he had received Social Security Administration benefits since 1998 for service-connected disabilities and his wife testified that he had earned approximately $400 per month from the paper route. The paper route employment was therefore not substantially gainful employment. A March 2005 VA peripheral nerves examination report documents that the Veteran reportedly was unable to mow the lawn, do yard work, or clean the house particularly when his left hand flared-up. He stated that any activities requiring the use of both hands or the left hand only were difficult. The examiner opined that the Veteran was not competitively employable and that this was due "in some part [to] his inability to use his left hand to engage in activities that would be required in any job that he would be able to be employed for." In a July 2005 letter, VA informed the Veteran that it had denied Vocational Rehabilitation and Employment services because the adjudicator had determined that it was not reasonable to expect the Veteran to be able to train for or get a suitable job. At a December 2006 mental health consultation, the Veteran reported that his depression did not affect his daily functioning but stated that he could not do much because of his "cardiac and other medical problems." The clinician agreed that the Veteran's depression did not affect his daily functioning. Although the July 2003 examination report indicates that he could work if the work did not involve his left hand, the March 2005 examination report relied on an essentially unchanged left hand disability picture in the opinion that he was not employable. The July 2005 letter regarding VA Rehabilitation and Employment services was not meaningfully different from the March 2005 opinion. Based on these facts, the Board concludes that the evidence is sufficient and is in equipoise as to whether the Veteran was unable to secure and follow a substantially gainful occupation prior to March 26, 2007. See Geib v. Shinseki, --- F.3d----, No.2012-7164, 2013 WL 5788671 (Fed. Cir. Oct. 29, 2013) (explaining that "applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner."); see also Floore v. Shinseki, ---Vet. App. ----, No. 12-2017 2013 WL 5913227 (Nov. 5, 2013) (explaining that it is VA's determination as to whether there is sufficient competent medical evidence to decide a claim for TDIU). Resolving reasonable doubt in the Veteran's favor, TDIU for the period prior to March 26, 2007 must be granted. Now the Board turns to its reasons and bases for finding that the appeal must be granted as to entitlement to SMC at the rate specified at 38 U.S.C.A. § 1114(s) (West 2002 & Supp. 2013) for the period prior to March 26, 2007. If a veteran has a service-connected disability rated as total and has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities, then such veteran is entitled to SMC. 38 U.S.C.A. § 1114(s) (West 2002 & Supp. 2013); 38 C.F.R. § 3.350(i) (2013). This is referred to as SMC at the housebound rate. The Court of Appeals for Veterans Claims (Court) has held "that section 1114(s) does not limit 'a service-connected disability rated as total' to only a schedular rating of 100%, and the Secretary's current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating." See Bradley v. Peake, 22 Vet. App. 280, 290 (2008). The Court also explained that the service-connected disability rated as total requirement can "be met with either a single 'disability or disabilities independently' rated at 60%." Id. at Finally, the Court has also stated as follows: Therefore, the Court holds that the order in which disabilities are service connected is not relevant to VA's determination of a claimant's eligibility for special monthly compensation under section 1114(s). Whenever a veteran has a total disability rating, schedular or extraschedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA's duty to maximize benefits requires VA to assess all of the claimant's disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s). Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Of significance with regard to the SMC issue, the Board finds that his service-connected disability of residuals of shell fragment wounds of the left hand, independent of any other service-connected or nonservice-connected disability, rendered him unable to secure and follow a substantially gainful occupation prior to March 26, 2007. This the Board concludes because the evidence consistently showed that it was this disability that rendered the Veteran unemployable. The evidence relevant from this period does not show that he was unemployable due to his hearing loss, tinnitus, scar of the middle left finger, psychiatric disability, heart disease, or any other condition. Although the March 2005 VA psychiatric report does not directly address whether his psychiatric symptoms rendered him unemployable, the December 2006 mental health consultation and the February 2004 psychiatric examination report provide evidence that his psychiatric symptoms did not render him unemployable and the July 2003 psychiatric evidence shows only that his PTSD resulted in moderate difficulty in occupational functioning. The preponderance of evidence thus shows that his residuals of left hand shell fragment wounds independently rendered him unable to secure and follow a substantially gainful occupation prior to March 26, 2007. The combined rating for PTSD, hearing loss, and tinnitus is 60 percent or greater for all periods since December 2, 2003. See 38 C.F.R. § 4.25. As TDIU is warranted based on the effect of his service-connected residuals of shell fragment wounds of the left hand and, as additional disabilities are independently ratable as 60 percent, SMC at the rate specified at 38 U.S.C.A. § 1114(s) is warranted for the period prior to March 26, 2007. SMC at the housebound rate must therefore be granted for this period. The RO has awarded SMC at the housebound rate for the period beginning on March 26, 2007. Turning to the later period on appeal, the Board finds that the preponderance of evidence shows that the Veteran's residuals of left hand shell fragment wounds independently rendered him unable to secure and follow a substantially gainful occupation for the period from March 26, 2007, forward. A June 2010 VA psychiatric examination report includes an opinion that the Veteran's psychiatric symptoms affected his job functioning but there was no statement that the symptoms prevented employment. In the report of a June 2010 VA examination of his left hand in June 2010, the examiner provided a history of his disability in relation to his employment, stating that he had been laid off from work in 1997 because he was unable to perform his job because of his left hand disability. At a July 2010 VA audiology examination, the Veteran reported difficulty understanding conversations unless he could see the person speaking and noted difficulty understanding in a noisy situation. The audiologist opined that these problems would make it difficult to work in certain, but not all, situations or jobs. In an April 2011 addendum to the June 2010 examination report, a VA psychiatrist opined that, after reviewing the Veteran's claims file, the psychiatrist was of the opinion that the Veteran's psychiatric disability rendered him unable to obtain and maintain any form of gainful employment. The psychiatrist did not support that opinion with a sufficient rationale. In a May 2011 VA examination report, an examiner provided an opinion that the Veteran's service-connected left hand disability rendered him unable to secure and follow a substantially gainful occupation. Read as a whole, the opinion is sufficiently supported by rationale. A September 2011 VA examination report indicated that the Veteran's ischemic heart disease did not impact his ability to work. In a report of an April 2012 examination, a VA examiner provided a finding that the Veteran's service-connected left hand disability impacted on his ability to work because it limited his ability to grab and pick up objects weighing 20 pounds or more. Another report from that same month includes findings that his scar did not impact on employability. The Veteran underwent another VA psychiatric examination in January 2013. The examiner stated that the Veteran was limited by his mental health condition and that the Veteran reported that the principal reason that he could not work was his hand disability. In a section addressing the occupation and social impairment due to the Veteran's psychiatric symptoms, the examiner indicated that his symptoms were not severe enough to interfere with occupational and social functioning. Documented in the report of the January 2013 psychiatric examination, was the Veteran's stated reluctance to provide more information because of his belief that he had already been awarded a total rating for his cardiac condition and that he believed the examination was for a technical reason and it would not affect his finances. It is noted by the Board that the examiner diagnosed an anxiety disorder, which the examiner referred to as "previously termed PTSD," but the examiner also indicated that his psychiatric disability was at least as likely as not caused by or incurred in service. This fact does not affect the outcome of this Board decision. Finally, the examiner started that this psychiatric disability "renders him limited to repetitive low to moderate stress, solitary employment endeavors." The examiner also stated "I am unable to comment to additional aspects of the patient's functioning due to his directly expressed statement of his preferences to be intentionally vague." At the time of that examination, the claims file was unavailable for review by the examiner. After being provided with and reviewing the claims file, the examiner provided an addendum opinion in May 2013, explaining that the opinion, report, diagnosis, and other information previously provided remained accurate and were not changed by the claims file review. In the report of a January 2013 VA examination of his left hand, an examiner provided an opinion that his scar did not result in functional impairment. The examiner also opined that due to his left hand shell fragment wound residuals the Veteran would be able to perform light desk type work in an eight hour work day with frequent rest breaks every 45 minutes as needed. In April 2013, the Veteran again underwent VA examinations. This included an examination titled as for his ischemic heart disease. The examiner opined that because of his heart disease he was not a candidate for gainful employment. More significantly, she also provided an expert opinion that the residuals of shell fragment wounds of his left hand would cause him to not be a candidate for gainful employment because he would only be able to work part-time in a sedentary position with frequent breaks. She explained that his scar residual did not result in functional impairment in a physical or sedentary position. In a report of a June 2013 audiology examination the examiner opined that his hearing loss and tinnitus did not result in functional deficits as to physical or sedentary employment. It is clear that he has not engaged in meaningfully gainful employment, his employment consisting of two hours per day delivering newspapers for an annual income of 4800 dollars. All evidence shows that the service-connected scar of his left middle finger and his hearing loss and tinnitus disabilities do not prevent him from securing and following a substantially gainful occupation. Although the April 2011 addendum to the June 2010 VA psychiatric examination included an opinion that his psychiatric disability rendered him unable to obtain and maintain any form of gainful employment there insufficient supporting rationale for that conclusion and his later psychiatric examinations yielded opinions that his psychiatric symptoms were not severe enough to do so. Those later opinions are more probative as they include more discussion as to the type of employment he would be able to obtain and follow. The report most adverse to his claim was the January 2013 report that his residuals of shell fragment wounds of the left hand allow him to work only in a light desk type job if he could take rest breaks every 45 minutes. Even so, the opinion standing by itself can reasonably be read to show that this disability effectively precludes him from securing and maintaining a substantially gainful occupation. The April 2013 opinion sufficiently bolsters the finding that this disability renders him unable to secure and follow a substantially gainful occupation. The Board concludes that it has sufficient expert evidence to make the determination that the Veteran's residuals of shell fragment wounds of the left hand, acting independent of any other service-connected or nonservice-connected disability, renders him unable to secure and follow a substantially gainful occupation since March 26, 2007. See Geib v. Shinseki, --- F.3d----, No.2012-7164, 2013 WL 5788671 (Fed. Cir. Oct. 29, 2013) (explaining that "applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner."); see also Floore v. Shinseki, ---Vet. App. ----, No. 12-2017 2013 WL 5913227 (Nov. 5, 2013). As to the period beginning on March 26, 2007, the Board finds that the Veteran's left hand shell fragment wounds independently result in his inability to secure and follow a substantially gainful occupation. This determination by the Board is beneficial to the Veteran with regard to both a total rating and with regard to special monthly compensation at the rate specified at 38 U.S.C.A. § 1114(s) if his total rating for ischemic heart disease is ever reduced. The Veteran's appeal is therefore granted in full. (CONTINUED ON NEXT PAGE) ORDER TDIU is granted for the appeal period prior to March 26, 2007, subject to the laws and regulations governing monetary awards. TDIU is granted for the appeal period from March 26, 2007, forward, subject to the laws and regulations governing monetary awards. SMC at the rate specified at 38 U.S.C.A. § 1114(s) is granted for the appeal period prior to March 26, 2007, subject to the laws and regulations governing monetary awards. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs