Citation Nr: 1513490 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 08-15 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for the service-connected posttraumatic stress disorder (PTSD), to include whether the Veteran is entitled to a a total disability rating based on individual unemployability due to service-connected disability (TDIU) solely due to his PTSD. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) due to the combination of all of his service-connected disabilities. 3. Whether vacatur is warranted for that portion of a June 2014 Board of Veterans' Appeals decision that remanded the issue of entitlement to an increased rating for a service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Ralph J. Bratch, Esquire ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran had active service from January 1966 to May 1969 and from December 1976 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The TDIU claim was raised by the record in conjunction with a previously addressed claim for an increased rating for the service-connected Meniere's disease. By way of history, the Veteran's claim for an increased rating for his Meniere's disease was denied by the Board in a May 2009 decision. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In September 2009, the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand of the April 2009 Board decision (Joint Motion), which was granted in an Order by the Court. Thereafter, the increased rating claim for Meniere's was remanded by the Board for additional development in December 2010. In that decision, the Board determined that a claim for entitlement to a TDIU had been raised by the record because a TDIU is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU claim was also remanded. In an August 2012 rating decision, the RO granted service connection for PTSD and assigned an initial 30 percent rating effective from April 18, 2012. The Veteran timely appealed the initial disability rating and the effective date of service connection. In a February 2013 rating decision, the RO granted an increased rating to 10 percent for the Veteran's service-connected lumbar spine disability. The Veteran initially submitted a Notice of Disagreement (NOD) with that determination in February 2014, but subsequently withdrew that appeal in February 2014 correspondence to the RO. Meanwhile, the case had been returned to the Board in May 2014 and the Board issued a decision in June 2014. The Board remanded the issue of entitlement to an increased rating for the service connection lumbar spine disability to the RO for issuance of a Statement of the Case (SOC) pursuant to the holding in Manlincon v. West 12 Vet. App. 238 (1999). The Board was unaware that at the time of the June 2014 decision, the Veteran had already indicated (in February 2014) that he did not wish to continue his appeal with regard to the rating for his lumbar spine disability. As such, the matter is not on appeal or currently before the Board. See 38 C.F.R. § 20.204(b)(3) (2014) (until the appeal is transferred to the Board, an appeal withdrawal is effective when received by the agency of original jurisdiction). Accordingly, the earlier remand of June 2014 for a statement of the case to be issued will be vacated. The June 2014 decision also denied an increased rating for the service-connected Meniere's disease and denied a compensable rating for hypertension. Regarding the PTSD, the Board's June 2014 decision granted an earlier effective date of November 27, 2006 for the award of service connection for PTSD. The Board remanded the issues of entitlement to an initial disability rating in excess of 30 percent for PTSD and also remanded the inextricably intertwined claim of entitlement to a TDIU. In a September 2014 rating decision, the RO implemented the grant of an earlier effective date of November 27, 2006 for the grant of service connection for PTSD. The RO assigned an initial 30 percent rating, effective from November 27, 2006, but did not address the Veteran's claim for an increased initial rating for PTSD, or the remanded claim for a TDIU in the September 2014 decision. This appeal was processed using the Veteran's Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. In addition, the Board also reviewed the Veteran's Virtual VA paperless claims processing system to ensure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to an initial disability rating in excess of 30 percent for the service-connected PTSD, to include consideration of whether TDIU is warranted solely due to PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's service-connected disabilities include obstructive sleep apnea with asthma, rated as 50 percent disabling; Meniere's syndrome with tinnitus and left ear hearing loss, rated as 30 percent disabling; status post right and left knee replacements, each rated as 30 percent disabling; PTSD, rated as 30 percent disabling; atrial fibrillation rated as 30 percent disabling; a lumbar spine disability, rated as 10 percent disabling; and hypertension, rated as noncompensable; the overall combined rating is 90 percent. 2. The evidence is in relative equipoise as to whether the Veteran is unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities. 3. On June 17, 2014, the Board remanded the issue of entitlement to an increased rating greater than 10 percent for lumbar spine osteoporosis with lumbar strain for the issuance of a statement of the case. 4. The Board was not aware that on February 25, 2014, the RO received a request from the Veteran's representative to withdraw the appeal regarding the evaluation assigned to the lumbar spine disability. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, TDIU is warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159 , 3.340, 4.16 (2014). 2. The June 17, 2014 Board decision, insofar as it remanded the issue of entitlement to an increased rating for lumbar spine osteoporosis with lumbar strain, is vacated. 38 U.S.C.A. § 7104(a)(West 2014); 38 C.F.R. § 20.904 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). The Veteran's service-connected disabilities include obstructive sleep apnea with asthma, rated as 50 percent disabling; Meniere's syndrome with tinnitus and left ear hearing loss, rated as 30 percent disabling; status post right and left knee replacements, each rated as 30 percent disabling; PTSD, rated as 30 percent disabling; atrial fibrillation rated as 30 percent disabling; a lumbar spine disability, rated as 10 percent disabling; and hypertension, rated as noncompensable; the overall combined rating is 90 percent. See 38 C.F.R. § 4.25. As such, he does satisfy the schedular threshold percentage requirements for consideration of a TDIU in that he has a combined rating of 90 percent, and at least one service-connected disability evaluated as 40 percent or more (i.e., obstructive sleep apnea evaluated as 50 percent disabling). The evidentiary standard for TDIU opinions is not whether the average person would be precluded from substantially gainful employment, but whether the specific Veteran would be so precluded as a result of service-connected disabilities. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); see Friscia v. Brown, 7 Vet. App. 294 (1994). Thus, to the extent that a VA medical opinion addresses the functional impact of the various service-connected disabilities on the Veteran's ability to work, they are not probative if they do not consider the Veteran's level of education or work history. In this case, when all of the Veteran's service-connected disabilities are considered, the Board must resolve all doubt in the Veteran's favor and find that his overall disability picture more nearly approximates the criteria for the assignment of a TDIU. In a February 2011 statement, the Veteran provided credible evidence of unemployability due to service-connected disabilities. He reported that his Meniere's syndrome causes severe vertigo, nausea, and tinnitus. The Veteran reported that he experiences these symptoms on an average of two times per day, for ten minutes or longer, and they come on without warning. Likewise, the Social Security Administration has determined that the Veteran is unemployable, primarily due to his back disability, with a secondary diagnosis of polycythemia vera (which results in sleep apnea). The SSA records also show that the Veteran reports severe low back pain, making sitting difficult because it causes an increase in the low back pain. The Veteran also reports that his vertigo is accompanied by a severe headache that lasts all day. The SSA found that the Veteran had the residual exertional functional capacity to preform "light" work; however, because of persistent pain and depression, the Veteran cannot maintain concentration on a sustained basis during a typical eight-hour workday or 40-hour workweek to the point that he is limited to simple repetitive tasks in a routine setting. The SSA narrative seemed to place a greater weight on the Veteran's cervical spine pain rather than his service-connected low back pain when considering his disabilities; however, the report makes clear that the Veteran's PTSD and depression contribute to his inability to maintain gainful employment. According to the Veteran's February 2011 VA Form 21-8940 TDIU application, the Veteran worked in the Army until his retirement in 2005. His education and training show that he is a licensed practical nurse. The Veteran has undergone several VA examinations to assess the severity of his service-connected disabilities. See VA ear disease examination in May 2011, March 2012 VA heart examination, May 2012 VA PTSD examination, May 2012 general medical examination; and February 2014 VA orthopaedic examination of the knees. The May 2011 ear disease examination report notes that the Veteran has daily episodes of severe dizziness that can last up to an hour. The examiner opined that it would be extremely difficult for this Veteran to hold a gainful LPN (licensed practical nurse) position due to his unpredictable/sudden onset daily dizziness spells, although he could possibly take some light duty, sedentary jobs (required sitting), such as desk clerk/data entry or phone answering service. The PTSD examination report from May 2012 does not specifically indicate the functional impact of the PTSD on the Veteran's employment, but it is certainly reasonable that the Veteran's mental health deficits would have at least some negative impact on his ability to maintain gainful employment, particularly when considering the effect of the service-connected sleep apnea. For example, according to the May 2012 examination report, the Veteran has recurring nightmares. He also has sleep apnea, and the nightmares and sleep apnea naturally result in sleep disturbance, which would naturally cause fatigue and anxiety leading to an interference with daily activities as a result of PTSD and sleep apnea-related chronic sleep disturbance. Moreover, the examiner indicated that the Veteran also had a diagnosis of depressive disorder, and it was not possible to differentiate the symptoms associated with the PTSD and those associated with the depressive disorder. When it is not possible to separate the effects of service-connected and non-service-connected disabilities, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The May 2012 VA general medical examination report indicated that the Veteran's low back strain, sleep apnea, knee replacements, Meniere's disease and hypertension would preclude manual labor but not sedentary labor such as telemarketing; however, the examiner did not consider the Veteran's mental health deficit when providing that opinion. As noted above, these examiners did not consider the Veteran's educational background or his work history, or the combined effects of the Veteran's service-connected disabilities, on his ability to maintain substantially gainful employment. It is significant, however, that the SSA did consider the complete disability picture and in turn found that the Veteran would not likely be able to maintain gainful employment. While the Board is not bound by the SSA findings, the Board finds their assessment relevant and probative. It is the only evidence of record that considered the Veteran's mental health deficits in conjunction with his service-connected disabilities. Even a sedentary job would require the employee to communicate effectively with clients and/or a supervisor. Given the Veteran's level of functional impairment as a result of PTSD and other service-connected disabilities as described above, the evidence is in relative equipoise as to whether, when considered together, along with level of education and work history, the Veteran is at least as likely as not unemployable due to his service-connected disabilities. The evidence does not show that the sleep apnea, Meniere's syndrome, status post right knee replacement, status post left knee replacement, atrial fibrillation, lumbar spine disability or hypertension individually render the Veteran unemployable, however, the combined functional impairment, both physical and mental, at least as likely as not results in the inability to obtain or retain substantially gainful employment consistent with his prior work as a licensed practical nurse or carpenter and educational background. The Veteran is not able to perform heavy lifting, standing is difficult, he has unpredictable dizzy spells and is precluded from manual labor which is required for carpentry work and physical tasks involved with nursing. Moreover, an October 2008 assessment from Dr. Bural indicated that the Veteran has emotional lability and extreme difficulties in maintaining social functioning and concentration. Significantly, according to Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013), the Board is not required to obtain a single medical opinion assessing the combined effects of all service-connected disabilities when determining whether a Veteran's multiple disabilities entitle him to a TDIU. Accordingly, another examination is not required. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. In this case, the probative evidence of record, including the Veteran's competent and credible reports of functional impairment indicates that the Veteran would at least as likely as not be unable to obtain or retain substantially gainful employment in any capacity. Consideration of the Veteran's employability must take into account the limits placed on that type of work environment by all service-connected disabilities. After considering the Veteran's work history, education, as well as the combined effects of the Veteran's PTSD and all other service-connected disabilities, all doubt will be resolved in the Veteran's favor as to whether the manifestations of his service-connected disabilities preclude him from obtaining or retaining substantially gainful employment. On this basis, the Board finds that TDIU is warranted. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a)(West 2014); 38 C.F.R. § 20.904 (2014). On June 17, 2014, the Board remanded the issue of entitlement to an increased rating for the service connection lumbar spine disability to the RO for issuance of a Statement of the Case (SOC) pursuant to the holding in Manlincon v. West 12 Vet. App. 238 (1999). The Board was unaware that at the time of the June 2014 decision, the Veteran had already indicated (in February 2014) that he did not wish to continue his appeal with regard to the rating for his lumbar spine disability. The attorney who represented the Veteran at that time advised that the Veteran was "withdrawing his appeal regarding the evaluation assigned for his service-connected lumbar spine osteoarthritis." The statement also included the Veteran's name and claim number and it thus met the requirements for withdrawal of an appeal as set forth in 38 C.F.R. § 20.204(b)(1) (2014). As such, the matter is not on appeal or currently before the Board. See 38 C.F.R. § 20.204(b)(3) (2014) (until the appeal is transferred to the Board, an appeal withdrawal is effective when received by the agency of original jurisdiction). Accordingly, the earlier remand of June 2014 for a statement of the case to be issued is vacated. (CONTINUED ON NEXT PAGE) ORDER A TDIU is granted. The June 17, 2014 Board decision is vacated insofar as it remanded the issue of entitlement to an increased rating greater than 10 percent for lumbar spine osteoporosis with lumbar strain. REMAND The Veteran seeks an initial disability rating in excess of 30 percent for the service-connected PTSD. As noted above, the issue of entitlement to an initial disability rating in excess of 30 percent for PTSD was remanded to the RO in June 2014. The June 2014 remand directed the RO to undertake additional development deemed necessary for the increased rating claim for PTSD after implementation of the grant of the earlier effective date for PTSD and the assignment of an appropriate rating for that time period. Then, the RO was directed to readjudicate the Veteran's claims and issue a supplemental statement of the case if a complete grant of all applicable benefits for each claim was not awarded. In this case, the September 2014 rating decision implemented the Board's grant of an earlier effective date of November 27, 2006 for the grant of service connection for PTSD and assigned an initial 30 percent rating for the time period affected by the earlier effective date (from November 27, 2006 to April 18, 2012); however, the RO did not readjudicate the claim on appeal of entitlement to a disability rating in excess of 30 percent in a supplemental statement of the case. Furthermore, the Veteran's PTSD was last evaluated by VA examination in May 2012, nearly three years ago, and the evidence of record contains some medical evidence that is inconsistent with the 2012 report, suggesting that the Veteran's PTSD may be worse than when it was initially rated. See, e.g., October 2008 private mental health assessment obtained from the Social Security Administration (SSA). A new VA examination is necessary to decide the claim. 38 C.F.R. § 3.159. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court has held that a TDIU rating could serve as the "total" service-connected disability, if TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to special monthly compensation as provided in § 1114(s). In this case, a private treatment record dated in October 2008 evaluated the Veteran's mental health and indicated that he is unable to work. Accordingly, an issue has been raised as to whether the Veteran is entitled to a TDIU rating based solely on his service-connected psychiatric disability. All outstanding VA and private mental health records should be obtained and associated with the claims file or electronic record. 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). Expedited handling is requested.) 1. Obtain and associate with the electronic record, all outstanding VA treatment records pertaining to mental health treatment. 2. With appropriate authorization from the Veteran, obtain and associate with the claims file or electronic record all private mental health treatment records identified by him as pertinent to his claim for an increased rating for PTSD. 3. After completion of the above development, schedule the Veteran for an appropriate VA examination with respect to his claim for an increased rating for PTSD. Access to the electronic record should be provided to the appropriate examiner for review. The examiner should elicit a history from the Veteran regarding his PTSD and examine the Veteran. The examiner should provide information concerning the current state of the Veteran's PTSD. The examiner should also provide information concerning the functional impairment resulting from the PTSD which may affect his ability to function and perform tasks in a work setting. 4. After completing the above action, readjudicate the claim for an initial disability rating in excess of 30 percent for the service-connected PTSD, to include whether the Veteran is entitled to a TDIU solely due to his PTSD. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate review. 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 2014). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs