Citation Nr: 1751075 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-12 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypogammaglobulemia (claimed as common variable immune deficiency). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: South Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran had active military service from October 1968 to March 1970, to include service in Vietnam. He died in March 2016. The claims come before the Board of Veterans' Appeals (Board) on appeal from June 2010 and January 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. For claimants who died on or after October 10, 2008, 38 U.S.C.A. § 5121A permits an eligible person to file a request to be substituted as the Appellant for purposes of processing a claim to completion. The Appellant, who is the Veteran's widow, has been substituted for the Veteran pursuant to 38 U.S.C.A. § 5121A. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for hypogammaglobulemia is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's PTSD precluded him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5110(a), (b)(2) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. As the Board's decision to grant the Appellant's claim of entitlement to a TDIU is completely favorable, no further discussion of the VCAA requirements is necessary. The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Rules and Regulations Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). Analysis The Appellant contends that the Veteran's service-connected PTSD made him unemployable. At the time of his death, the Veteran was service-connected for PTSD at 70 percent from February 2, 2010; tinea infection at 30 percent from February 18, 2009; peripheral neuropathy of the left upper extremity associated with diabetes mellitus, type II with cataracts at 30 percent from March 6, 2015; diabetes mellitus, type II with cataracts at 20 percent from August 2013; peripheral neuropathy of the left lower extremity associated with diabetes mellitus, type II with cataracts at 20 percent from March 6, 2015; peripheral neuropathy of the right lower extremity associated with diabetes mellitus, type II with cataracts at 20 percent from March 6, 2015; and tinnitus at 10 percent from May 16, 2014. The record reveals that the Veteran did not work during his high school years. He spent 12 months in Vietnam while in service. Subsequent to his military experience, the Veteran worked for UPS from June 1970 to May 1982, from which he stated he was fired for politics mixed up with the union. The Veteran worked as a caretaker cutting lawns and working in his wife's florist and garden center from 1982 to 1999. After his wife contracted cancer, the Veteran started working part-time at a camera store. See VA examination from July 2002. The Veteran worked at the camera store from 1999 to 2009. Additionally, the Veteran was self-employed from 2004 to 2010. See VA Form 21-8940 dated April 5, 2011. VA examinations regarding the Veteran's skin condition and diabetes mellitus from June 2012 noted that the conditions did not cause a functional impact on the Veteran's ability to work. In the Veteran's VA PTSD examination from September 2012, the examiner noted that the Veteran had difficulty adapting to stressful circumstances, including work or a work-like setting, had an inability to establish and maintain effective relationships, and had impaired impulse control, such as unprovoked irritability with periods of violence. The VA examiner noted that the Veteran worked for UPS for 10 years but later got fired due to an argument he got in with his supervisor. The examiner noted that the Veteran got a job at a paint store, then cut lawns, then worked in a camera store, and then had other various jobs over the years. He added that the Veteran currently supports himself off of social security and disability payments. The examiner noted that the Veteran's health has deteriorated and he is no longer able to work. The examiner stated that the Veteran's PTSD is not the cause of his unemployability at this time as he has multiple medical problems that are the chief cause of his inability to work. However, the examiner noted that the Veteran has never been able to hold steady employment which is as likely as not due to his irritability and inability to establish working relationships. This more likely than not has left him with periods of unemployment and underemployment since his time in service. The examiner added that the Veteran's social life is quite poor; he is extremely isolative and simply seems to exist. He rarely leaves his home and finds pleasure in few activities. He has few social connections and suffers from nightmares. The examiner noted that the Veteran's social functioning is severely affected by his PTSD symptoms. In a December 2013 VA skin examination, the VA examiner noted that the Veteran's skin conditions impact his ability to work. The examiner noted that the Veteran has at least one functional deficit that prevents physical, but not sedentary employment. The current functional status permits sedentary, but not physical employment due to service-connected tinea. Specifically, the examiner opined that the current severity of the pruritic tinea rash impairs physical work that can be safely performed. In April 2015, the Veteran was provided a VA examination for his peripheral neuropathy. The VA examiner noted that the peripheral neuropathy affects his ability to work. The examiner added that the Veteran has difficulty with buttoning, opening jars, picking up small objects with his left hand, is unable to walk more than five minutes, and is unable to stand for more than a few minutes. Based on the evidence of record, the Board finds that the Veteran consistently reported that he was unable to work due to his service-connected disabilities, primarily PTSD. Additionally, the September 2012 VA examiner noted that the Veteran has never been able to hold steady employment due to his PTSD symptoms. Accordingly, given the severity of the Veteran's PTSD and the limitations caused by that disability in conjunction with his education and work history, the Board finds that his service-connected PTSD precluded him from obtaining and maintaining substantially gainful employment. See Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) ("[A] mere theoretical ability to engage in substantial gainful employment is not sufficient... The test is whether a particular job is realistically within the physical and mental capabilities of claimant."). Accordingly, the Board finds that entitlement to a TDIU is warranted. As the VA PTSD examination in September 2012 was conducted within a year of the initial denial of entitlement to a TDIU in a rating decision dated in August 2012, the Board finds that new and material evidence was received prior to the expiration of the appeals period, and such evidence is considered as having been filed in connection with the pending claim received April 5, 2011. 38 C.F.R. § 3.156(b) (2016). Accordingly, the appropriate effective date is April 5, 2011. See Swain v. McDonald, 27 Vet. App. 219 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). ORDER Entitlement to a TDIU due to PTSD is granted from April 5, 2011, subject to the laws and regulations governing the award of monetary benefits. REMAND Although further delay is regrettable, the Board finds additional development must be undertaken prior to adjudication of the Veteran's claim for service connection for hypogammaglobulemia. The Appellant contends that the Veteran was exposed to herbicides while in service, which caused his hypogammaglobulemia. In April 2013, the Veteran stated that he has three brothers and sisters that have no health problems. He noted that he feels his problems are related to Agent Orange exposure, adding that most of the diseases he is suffering from are rare. In May 2013, the Veteran submitted an article that shows one of the causes for pancytopenia, a deficiency in all types of blood cells, to be exposure to environmental contaminants. The Veteran was stationed in Vietnam from May 1969 to May 1970, therefore exposure to herbicides is conceded. Although the Veteran's diagnosis of hypogammaglobulemia does not qualify for the herbicide exposure presumption under 38 C.F.R. §3.309(e), the Appellant's claim can still be considered under traditional service connection principles. See Combee v. Brown, 34 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds that the Appellant should be afforded a VA medical opinion to discuss the nature and etiology of the Veteran's hypogammaglobulemia. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The requirement that the evidence of record "indicates" that a disability, or persistent or recurrent symptoms of a disability, "may be associated" with the Veteran's service establishes "a low threshold." McLendon, 20 Vet. App. at 83. As the Appellant has raised the argument that the Veteran's hypogammaglobulemia is linked to his exposure to herbicides while in Vietnam coupled with the submission of the article, VA's duty to assist is triggered. The Board finds that an addendum medical opinion is needed in order to address the raised contention. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical opinion regarding the nature and etiology of the Veteran's hypogammaglobulemia diagnosis. After a thorough review of the Veteran's record, the examiner should provide opinions responding to the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypogammaglobulemia was related to service? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypogammaglobulemia was etiologically related to conceded in-service herbicide exposure? The Board is cognizant that there is no presumption of service connection for hypogammaglobulemia due to herbicide exposure. The question here is what is the likelihood that this Veteran's hypogammaglobulemia was related to his herbicide exposure given his medical history, family history, absence of other risk factors, etc. The examiner should consider the article submitted in May 2013 that shows one of the causes for pancytopenia, a deficiency in all types of blood cells, to be exposure to environmental contaminants. The examiner should provide a detailed rationale, with references to the record, for all opinions expressed. 2. Thereafter, the AOJ should review the claims file and readjudicate the Appellant's claim of entitlement to service connection for hypogammaglobulemia. If the benefit sought on appeal remains denied, the Appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The Appellant 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 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs