Citation Nr: 1753225 Decision Date: 11/20/17 Archive Date: 12/01/17 DOCKET NO. 03-13 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for urinary incontinence, to include as secondary to service-connected left hip and lumbar spine disabilities. 2. Entitlement to compensation under 38 U.S.C. § 1151 for urinary incontinence claimed as secondary to surgery for a urethral diverticulum by the Department of Veterans Affairs on February 3, 1998. 3. Entitlement to an increased rating for a left hip disability, currently rated as 20 percent disabling. 4. Entitlement to an increased rating for a lumbar spine disability, currently rated as 10 percent disabling. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 3, 2008. 6. Entitlement to TDIU since July 3, 2008. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) with the Army Reserves from December 1986 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2002, February 2003, and January 2006 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Prior to June 2004, the Veteran perfected an appeal on all issues currently on appeal except for entitlement to service connection for urinary incontinence. In June 2004, the Board remanded all issues before it at that time for further development. After June 2004, the Veteran perfected an appeal of the issue of entitlement to service connection for urinary incontinence. In March 2012, the Board remanded all issues currently before it for further development. In September 2003, the Veteran testified at a videoconference hearing before a Veterans Law Judge that is no longer employed by the Board. A transcript of this hearing is associated with the electronic record. In July 2006, the Veteran requested a hearing in Washington, DC, before a Veterans Law Judge on the issue of entitlement to service connection for urinary incontinence. The law requires that a Veterans Law Judge who conducts a hearing on appeal must participate in a decision made on appeal. 38 U.S.C. § 7107(c) (West 2014); 38 C.F.R. § 20.7007 (2017). Therefore, in August 2010, the Veteran was asked if she wanted to appear at another hearing. She was informed by letter that if she did not respond, the Board would assume that she did not want another hearing and would proceed with adjudication of her claims. 38 C.F.R. § 20.717 (2017). The Veteran did not respond to that letter. The Board determined in its March 2012 decision that no further action regarding a hearing was necessary. In 2016 and 2017, the Veteran's counsel was provided a copy of the electronic record. The Veteran's counsel has not requested a Board hearing on any issue. In February 2017, the Board granted the Veteran a 90-day extension to submit any additional argument and evidence. That 90-day period has expired. In an unappealed March 1998 rating decision, the RO denied entitlement to service connection for a bladder disorder as secondary to service-connected lumbar spine and left hip disabilities. Subsequent to that rating decision, the RO received additional service treatment records pertinent to that claim. Therefore, pursuant to 38 C.F.R. § 3.156(c) (2017), the Board will review the claim on a de novo basis. The Veteran is currently claiming that her urinary incontinence is secondary to her left hip disability. In her 1998 claim, the Veteran asserted that the urinary incontinence was secondary to the service-connected lumbar spine disability. Pursuant to Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the Board will consider whether the urinary incontinence is secondary to the service-connected lumbar spine disability. As explained below, since July 3, 2008, the Veteran has meet the schedular criteria for consideration of entitlement to TDIU pursuant to 38 C.F.R. § 4.16(a) (2017). The Board is granted entitlement to TDIU since July 3, 2008. In light of the above, the issues are as stated on the first two pages of this decision. All issues except entitlement to TDIU since July 3, 2008, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Since July 3, 2008, the Veteran has been service-connected for the following disabilities: residuals of a stress fracture of the iliotibial band of the left hip, a lumbar spine disability with limitation of motion, and mood disorder associated with the left hip disability. 2. Since July 3, 2008, combined the mood disorder and the left hip disability, which are of a common etiology, have been rated as 60 percent disabling. 3. The evidence is in equipoise as to whether since July 3, 2008, the Veteran's service-connected disabilities have rendered her unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a total disability rating based on individual unemployability due to service-connected disability have been met effective since July 3, 2008. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Governing Law and Regulation Total disability ratings for compensation based on individual unemployability 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 without regard to advancing age 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. §§ 3.340, 3.341, 4.16(a). For the above purpose, disabilities resulting from a common etiology will be considered a single disability. 38 C.F.R. § 4.16(a). Substantially gainful employment suggests a living wage. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Analysis Since July 3, 2008, the Veteran has been service-connected for the following disabilities: residuals of a stress fracture of the iliotibial band of the left hip, a lumbar spine disability with limitation of motion, and mood disorder associated with residuals of a stress fracture of the iliotibial band of the left hip. Since July 3, 2008, the mood disorder and the left hip disability have been rated as 50 and 10 percent disabling. Since these two disabilities are of a common etiology, they can be combined for purposes of 38 C.F.R. § 4.16(a). Combined, these two disabilities are rated as 60 percent disabling. 38 C.F.R. § 4.25. This makes her eligible for consideration under 38 C.F.R. § 4.16(a). In her various formal TDIU applications, the Veteran reported that she has not worked since 1998 when she was a postal clerk. She reported that she has three years of college and that she completed two years of college from 2000 to 2002. A private medical record reveals that in January 2009 the Veteran was delusional and had homicidal ideation. She was considered a danger to others. VA treatment records reveal that Global Assessment of Functioning (GAF) scores of 55 and 70 were assigned in January 2009. A May 2009 VA mental disorders examination report reflects that the Veteran admitted to paranoia and homicidal ideas at times. The examiner noted that the Veteran would have great difficulty in most employment situations because of her severe anxiety, depression, mood instability, and paranoia. The examiner assigned a GAF of 55. VA treatment records show that a GAF of 65 was assigned in April and September 2010. A December 2012 VA examination report reflects that the examiner determined that the lumbar spine and left hip disabilities did not impact her ability to work. A January 2015 psychological report shows that a mental-health professional stated that the Veteran should be able to maintain a low-stress part-time job and possibly a full-time job if she is compliant with Abilify and her other treatment. The professional noted that the Veteran was temporarily unable to work due to her recovery from surgery for uterine cancer. The mental-health professional assigned a GAF of 52 to 54. In a March 2017 vocational assessment, a private vocational consultant concluded that the Veteran's service-connected orthopedic disorders alone preclude her from successfully maintaining substantially gainful employment. The consultant noted that orthopedic disorders interfered with her ability to perform essential job duties while employed at the Postal Service and led to reassignment to a light-duty position where she struggled to meet job demands because of pain caused by prolonged sitting. The consultant indicated that it is likely that her orthopedic disorders would preclude her from other competitive employment of any physical demand level. The consultant noted that occupations that require physical demands are typically environments with limited interaction with others. The vocational consultant stated that her mood disorder prevents her from working closely or near others for any period of time. The consultant indicated that her disabilities would cause excessive absenteeism, as evidenced by her frequent absences while employed at the Postal Service, which is not tolerated in most competitive occupations where employees are expected to maintain a set schedule and meet a high level of productivity and reliability. While there is evidence of GAF scores higher than 55 and although a mental-health professional stated in January 2015 that the Veteran should be able to maintain a low-stress part-time job, the Board places great weight on the March 2017 vocational assessment, which addresses all service-connected disabilities. In addition, the evidence does not show that any low-stress part-time job would be anything more than marginal employment. Even though the December 2012 VA examiner determined that the lumbar spine and left hip disabilities did not impact her ability to work, it is not clear whether this opinion was based simply on the fact that the Veteran had not worked since 1998 and thus had been out of the workforce for a prolonged time. In other words, the examiner may have concluded that there was no functional impact on her ability to work because she has been long-term unemployed and retired on disability rather than considering the functional impact if she tried to return to the workplace. Taking into account her education and work experience, as well as the specific forms of impairment resulting from her various service-connected disabilities, the Board finds that evidence is in equipoise as to whether since July 3, 2008, the Veteran's service-connected disabilities have rendered her unemployable from performing all forms of substantially gainful employment that are consistent with her education and occupational experience. Accordingly, entitlement to a total rating based on individual unemployability since July 3, 2008 is in order. ORDER Entitlement to a total rating based on individual unemployability since July 3, 2008, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND A December 2012 VA medical opinion does not address whether the urinary incontinence was aggravated by the service-connected left hip disability as directed by the Board in its March 2012 remand. Similarly, an April 2013 VA medical opinion does not adequately address the 1151 claim as directed by the Board in its March 2012 remand. Therefore, the RO did not comply with the directives of the March 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). Another examination is necessary to render these opinions as well as address whether the urinary incontinence is related to service or the service-connected lumbar spine disability. May 2014 private treatment records suggest that the Veteran's left hip and lumbar spine disabilities have worsened since the December 2012 VA examination. For example, a May 2014 private treatment record shows an impression of left-sided L5 radiculopathy. Thus, another VA examination is necessary. In a March 2014 decision, the Board held that the reduction from 60 percent disabling to 10 percent disabling for the lumbar spine disability effective July 1, 2003, was proper. From July 1, 2003, to July 2, 2008, the service-connected disabilities were rated as 30 percent disabling. Prior to July 1, 2003, the service-connected disabilities were rated as 70 percent disabling. In a March 2017 vocational assessment, a private vocational consultant concluded that the Veteran's service-connected orthopedic disorders alone preclude her from successfully maintaining substantially gainful employment. Hence, the RO should refer the Veteran's TDIU claim to the Director, Compensation Service, to allow for consideration of whether a TDIU is warranted from July 1, 2003, to July 2, 2008, on an extra-schedular basis under 38 CFR §4.16 (b). Records from the Office of Personnel Management show that in 2000 the Veteran had applied for and been denied Social Security disability benefits. The RO should attempt to obtain any records from the Social Security Administration pertaining the Veteran's claim for Social Security disability benefits. In 2015, the Veteran reported that she had been treated by the UT Medical Clinic and the Memphis VA Medical Center. The RO should obtain these records. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all treatment for her lumbar spine and left hip disabilities and urinary incontinence, as well as any other disabilities pertaining to her claim for TDIU and obtain any identified records. Attempt to obtain all records from the UT Medical Clinic. Regardless of the Veteran's response, obtain all treatment records from the Memphis VA Medical Center since November 2012. 2. Contact the Social Security Administration and obtain all records pertaining to the Veteran's claim for Social Security disability benefits. 3. After the development in 1 and 2 is completed, the Veteran should be afforded a VA examination or examinations with an appropriate examiner or examiners to determine the current severity and nature of the left hip disability, lumbar spine disability, and urinary incontinence. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of her urinary incontinence and service-connected left hip and lumbar spine disabilities. The examiner should note any neurological manifestations of the service-connected left hip and lumbar spine disabilities. The examiner is also asked to provide the following information: An examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the current urinary incontinence was caused by the February 3, 1998, urethral diverticulectomy and/or post-operative care. If an examiner finds that it is at least as likely as not (50 percent or greater) that the current urinary incontinence was caused by the February 3, 1998, urethral diverticulectomy and/or post-operative care, an examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing the urethral diverticulectomy and providing post-operative care. If an examiner finds that it is at least as likely as not (50 percent or greater) that the current urinary incontinence was caused by the February 3, 1998, urethral diverticulectomy and/or post-operative care, an examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that that the current urinary incontinence was an event not reasonably foreseeable. An examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the current urinary incontinence preexisted the February 3, 1998 urethral diverticulectomy, and if so, whether it is at least as likely as not (50 percent or greater) that the February 3, 1998 urethral diverticulectomy and/or post-operative care caused the preexisting urinary incontinence to undergo an increase in severity beyond the mere continuance or natural progress of the disorder. If an examiner finds that it is at least as likely as not (50 percent or greater) that the February 3, 1998, urethral diverticulectomy and/or post-operative care caused the preexisting urinary incontinence to undergo an increase in severity beyond the mere continuance or natural progress of the disorder, an examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing the urethral diverticulectomy and providing post-operative care. If an examiner finds that it is at least as likely as not (50 percent or greater) that the February 3, 1998, urethral diverticulectomy and/or post-operative care caused the preexisting urinary incontinence to undergo an increase in severity beyond the mere continuance or natural progress of the disorder, an examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that that the an increase in severity beyond the mere continuance or natural progress of the disorder was an event not reasonably foreseeable. An examiner should opine on whether it is at least as likely as not that (i.e., to at least a 50 percent degree of probability) the current urinary incontinence is related to service, to include in-service left hip and lumbar spine treatment. The medical provider should opine on whether it is at least as likely as not that (i.e., to at least a 50 percent degree of probability) the current urinary incontinence was (1) caused by or (2) aggravated by the service-connected left hip disability or lumbar spine disability. If the medical provider finds that the current urinary incontinence was aggravated by the service-connected left hip disability or by the service-connected lumbar spine disability, then the examiner should quantify the degree of aggravation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, an examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. After the development in 1 thru 3 is completed, refer the claim for a TDIU to the Director, Compensation Service, in order to determine whether the Veteran warrants a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16 (b), from July 1, 2003, to July 2, 2008, due to her service-connected left hip and lumbar spine disabilities. Factors to be considered are the Veteran's education and employment history and loss of work-related functions. 5. After development above has been completed, the AOJ should readjudicate the Veteran's claims, to include consideration of entitlement to TDIU prior to July 1, 2003, pursuant to 38 C.F.R. § 4.16(a), and with consideration of the old and new criteria for rating spinal disabilities. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to her counsel, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). These claims 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs