Citation Nr: 1629121 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 14-26 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a right femur disability. 2. Entitlement to service connection for a left femur disability. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a psychiatric disability other than a major depressive disorder, to include posttraumatic stress disorder (PTSD). 5. Entitlement to an initial rating in excess of 40 percent for radiculopathy of the right upper extremity and right hand carpal tunnel syndrome. 6. Entitlement to an initial rating in excess of 30 percent for radiculopathy of the left upper extremity and left hand carpal tunnel syndrome. 7. Entitlement to a rating in excess of 20 percent for a cervical spine disability. 8. Entitlement to a compensable rating for the residuals of multiple rib fractures of the left side. 9. Entitlement to a compensable rating for the residuals of a hemorrhoidectomy. 10. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) from June 16, 2014. 11. Entitlement to TDIU prior to June 16, 2014. REPRESENTATION Veteran represented by: J. Michael Woods, Esq. ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from March 1971 to February 1975 and from December 1990 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of January 2013 and May 2013 rating decisions of the San Diego, California, regional office (RO) of the Department of Veterans Affairs (VA). The Veteran's February 2011 claim includes a claim for service connection for PTSD. VA treatment records such as a May 2012 mental health clinic note include assessments of PTSD. During the course of this appeal, entitlement to service connection for a depressive disorder was granted in an October 2014 rating decision. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Therefore, the grant of service connection for the depressive disorder does not resolve the claim for service connection for PTSD, and it remains on appeal. The issues of entitlement to service connection for a right femur disability, a left femur disability, a right knee disability, and entitlement to service connection for a psychiatric disability other than a major depressive disorder to PTSD, the issues of entitlement to an initial rating in excess of 40 percent for radiculopathy of the right upper extremity and right hand carpal tunnel syndrome, entitlement to an initial rating in excess of 30 percent for radiculopathy of the left upper extremity and left hand carpal tunnel syndrome, entitlement to a rating in excess of 20 percent for a cervical spine disability, entitlement to a compensable rating for the residuals of multiple rib fractures of the left side, entitlement to a compensable rating for the residuals of a hemorrhoidectomy, and entitlement to TDIU prior to June 16, 2014 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. As of June 16, 2014, the Veteran's service connected disabilities have a combined rating of 90 percent disabling; his depressive disorder has a rating of 70 percent. 2. The Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, to include depressive disorder and radiculopathy, as of June 16, 2014. CONCLUSION OF LAW The criteria for a total rating based on individual unemployability due to service connected disabilities have been met as of June 16, 2014. C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board makes no determination whether the duty to notify and the duty to assist have been met for the Veteran's claim for TDIU given the favorable outcome of this decision, any failures in this regard were harmless and do not prevent consideration of the appeal. TDIU The Veteran contends that his service connected cervical spine disability and other related disabilities to include a major depressive disorder render him unemployable. The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the appropriate rating under the pertinent diagnostic code of the rating schedule is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). According to the applicable laws and regulations, a total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided 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. Part 3, §§ 3.340, 4.16(a). As of June 16, 2014, the date the grant of service connection for a depressive disorder became effective, the Veteran's service-connected disabilities include the depressive disorder, evaluated as 70 percent disabling; right upper extremity radiculopathy and carpal tunnel syndrome, evaluated as 40 percent disabling; left upper extremity radiculopathy and carpal tunnel syndrome, evaluated as 30 percent disabling; degenerative disc disease of the cervical spine, evaluated as 20 percent disabling; and status post multiple rib fractures of the left side and status post hemorrhoidectomy, each evaluated as zero percent disabling. Consideration of the bilateral factor brought the combined evaluation to 90 percent disabling. These evaluations meet the criteria of 38 C.F.R. § 4.16(a). The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. See Van Hoose, 4 Vet. App. at 363. Thus, the central question is "whether the [V]eteran's service connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to 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, 363. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The record shows that the Veteran has a high school General Equivalency Degree (GED). He worked as truck driver his entire life, but last worked in 2006. He reportedly stopped working due to his physical disabilities. The Veteran was examined for his service connected physical disabilities in October 2012. The cervical spine examination notes that the Veteran has chronic pain. The examiner found that it impacted the Veteran's ability to work, in that he was unable to sustain looking over his shoulders or do anything that forced him to look up for some time. Bending down repeatedly caused increased pain. His radiculopathy of the upper extremities also impacted his ability to work due to constant hand pain. His rib disability and residuals of a hemorrhoidectomy did not impact his ability to work. A private medical examination and opinion from May 2014 notes that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. The examiner opined that the Veteran's depression and anxiety were due to his service connected injuries. The Veteran's symptoms included difficulty in adapting to stressful circumstances, including work or a work like setting, and difficulty in establishing and maintaining work relationships. His depressive disorder resulted in occupational and social impairment with deficiencies in most areas, including work. The examiner estimated that the Veteran would lose at least three or more days of work a month due to his mental problems. The Veteran would also need to leave early two or more days a month, and there would be two to three days a month in which the Veteran would be unable to focus in order to complete simple, repetitive tasks. He would also frequently decompensate when subjected to the normal pressures and constructive criticisms of a job. A September 2014 VA examiner notes that the Veteran struggles daily with pain related to his back and neck injuries. He had depression related to his pain and physical limitations. The Veteran's symptoms included difficulty in adapting to stressful circumstances, including work or a work like setting, and difficulty in establishing and maintaining work relationships, as well as disturbances of motivation and mood. The examiner opined that the Veteran's disability was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily. Given the above, the Board finds that it is as likely as not that the Veteran's service connected disabilities combined to prevent the Veteran from obtaining and maintaining gainful employment. The record shows that the Veteran's highest educational attainment is a GED and that his only civilian work experience is as a truck driver. As his cervical spine disability and radiculopathy of the upper extremities prevents him from looking over his shoulder, becomes painful with repeated bending, and causes constant pain in his hands, a return to this occupation would seem to be precluded. It would also seem to prevent him from working in most other areas in which physical activity is required. Sedentary employment does not seem to be precluded by his physical disabilities, but the May 2014 private examiner has outlined the many difficulties the Veteran would face in maintaining such an occupation due to probable absenteeism and frequent decompensation from normal work activities. The Board notes that none of the medical examiners have expressed an opinion regarding the Veteran's employability. However, the ultimate question as to employability is a question that the Board and not the health care professionals must answer. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Given the Veteran's many physical and mental limitations, the Board resolves all doubt in favor in his favor and finds that he is unemployable as of June 16, 2014, the date the grant of service connection for a depressive disorder became effective. In reaching this decision, the Board observes that the occupational impact of the Veteran's depressive disorder was instrumental in the determination that TDIU is warranted. As service connection for the Veteran's depressive disorder was not established until June 16, 2014, the effects of that disability may not be considered prior to that date. The effective date of service connection for the depressive disorder is not before the Board. However, as this grant of TDIU does not cover the entire period on appeal, the matter of entitlement to TDIU prior to June 16, 2014 remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). It will be addressed further in the remand section at the end of this decision. ORDER Entitlement to a total rating based on individual unemployability due to service connected disabilities from June 16, 2014 is granted. REMAND Regarding the Veteran's claims for service connection, increased ratings, and entitlement to TDIU prior to June 16, 2014, the May 2014 private examiner notes that the Veteran is in receipt of SSA disability benefits. There has been no attempt to obtain a copy of the decision that awarded these benefits or the medical records used to reach this decision. VA has a duty to obtain all potentially relevant records in the custody of a Federal agency, including SSA. 38 C.F.R. § 3.159(c)(2). Because the SSA records have not been associated with the claim file, it is not clear what formed the basis of SSA's award. As such, the Board finds that the records associated with the award of SSA benefits are relevant to the claims remanded herein and efforts must be made to obtain the Veteran's complete records from the SSA. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) (finding that as long as a reasonable possibility exists that SSA records are relevant to the Veteran's VA claim, VA is required to assist him in obtaining them). Accordingly, the case is REMANDED for the following actions: 1. Obtain a copy of the Social Security Administration decision that awarded the Veteran disability benefits as well as all medical records relied on to reach that decision and associate them with the claims file. Efforts to obtain these records should continue until they are obtained, or it is concluded that the records do not exist or further efforts to obtain them would be futile. If the records are determined to be unobtainable, a memorandum to this effect should be placed in the claims file. 2. Obtain all VA treatment records pertaining to the Veteran's claimed disabilities dating from 2014 to the present and associate them with the claims file. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ P. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs