Citation Nr: 1758088 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 11-31 301 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to a higher initial disability rating for the service-connected mental health disorders of major depressive disorder and posttraumatic stress disorder (PTSD) in excess of 50 percent. 2. Entitlement to service connection for a memory disorder. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Patricia E. Roberts, Attorney ATTORNEY FOR THE BOARD E. Blowers, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 2002 to May 2002, and from February 2003 to May 2004. This matter came before the Board of Veterans' Appeals (Board) on appeal from August 2010 and September 2013 rating decisions of the RO in Roanoke, Virginia. The instant matter was previously before the Board in February 2015, where, in pertinent part, the issue of entitlement to a TDIU was remanded to obtain a Social Industrial Survey. Further, the Board remanded the mental health rating issue and the issue of service connection for a memory disorder as intertwined with the TDIU issue. While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the instant decision grants a TDIU and remands the remaining issues on appeal, the Board need not address Remand compliance at this time. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. The issues of a higher initial disability rating for the service-connected mental health disorders of major depressive disorder and PTSD in excess of 50 percent and service connection for a memory disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the entire rating period on appeal from February 16, 2010, the Veteran was unable to maintain substantially gainful employment as a result of service-connected disabilities. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met from February 16, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). As the instant decision grants a TDIU for the entire relevant rating period on appeal, and remands the remaining issues on appeal, no further discussion of VA's duties to notify and assist is necessary. Entitlement to a TDIU Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is 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 a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. 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). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2017). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In this case, the combined schedular disability rating eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a) have been met for the period from February 16, 2010. From February 16, 2010, the Veteran had a combined schedular disability rating of 70 percent or higher, to include the following service-connected disabilities: non-ischemic cardiomyopathy, major depressive disorder and PTSD, pulmonary embolism, migraines, and hallux valgus of the left foot. Further, from February 16, 2010, the Veteran had at least one disability rated at 40 percent or higher (non-ischemic cardiomyopathy and depressive disorder/PTSD). See 38 C.F.R. § 4.16(a). After reviewing all the evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's service-connected disabilities prevented maintaining substantially gainful employment since February 16, 2010. Initially, the Board finds that the Veteran has not been substantially gainfully employed since early 2009. Per the report from the April 2016 Social Industrial Survey, and supported by the other evidence of record, both prior to and post service, the Veteran worked in the information technology (IT) field. After losing an IT job in 2008, the Veteran went to China and taught as an English teacher. While in China, the Veteran suffered a heart attack and returned to the United States in February 2009. The Veteran has not worked since returning to the United States. In addition to working in IT and as a teacher, the DD Form 214 reports that during service the Veteran was a military police officer. Per the Social Industrial Survey report, and as supported by the other evidence of record, the service-connected non-ischemic cardiomyopathy has resulted in a consistent metabolic equivalent (MET) rating of less than three. Such a low MET rating shows that the Veteran would likely be unable to partake in any job that is even minimally physically demanding. Not only does that include the Veteran's in-service work as a military police officer, but it would also preclude work as an IT specialist as such employment often involves carrying and setting up heavy computer equipment. This finding is further supported by a July 2014 private opinion in which a physician opined that the service-connected heart problems did "not bode well for [the Veteran's] future activity and employment." Further, the social industrial specialist discussed the significant impact the Veteran's service-connected mental disorders have on employment. Specifically, the specialist noted previous reports of the Veteran's grossly inappropriate behavior, which included being sarcastic, loud, intrusive, intimidating, and displaying ignorant behavior. Per the report from a November 2011 mental health examination, the Veteran was found to have "a difficult attitude and a defiant and aggressive posture, which is not conducive for appropriate employment." Additional mental health records support a finding that the Veteran's mental health symptoms would make it difficult for the Veteran to effectively interact with others in either a physical or sedentary place of employment. Resolving reasonable doubt in the Veteran's favor, the Board finds that the service-connected disabilities, namely, the symptoms stemming from the heart and mental disorders, prevent the Veteran from maintaining substantially gainful employment. The Veteran's physical impairments stemming from the heart symptoms would make physical employment, to include police/security and IT work, nearly impossible, and the Veteran's mental health symptoms would prevent the Veteran from teaching effectively or receiving training for other forms of sedentary employment. For these reasons, resolving all reasonable doubt in favor of the Veteran, the Board finds that a TDIU is warranted from February 16, 2010. 38 C.F.R. §§ 3.340, 3.341, 4.16. ORDER A TDIU from February 16, 2010 is granted. REMAND Mental Health Disorder Disability Rating A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran last received mental health examinations in about 2011. Since that time, VA has received various medical records and statements from the Veteran and representative indicating that the service-connected mental health disorders may have worsened in the past six years. As such, the Board finds remand for a new VA mental health examination to be warranted. Service Connection for a Memory Disorder VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran had requested service connection for a memory disorder. Having reviewed the record, the Board notes that the evidence of record is insufficient to determine 1) whether the Veteran has diagnosable memory disorder; and 2) whether any memory disorder and/or memory loss symptoms are due to the service- connected mental health disability. As such, the Board finds that these questions should be addressed by the mental health examiner on remand. Outstanding Treatment Records VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand the AOJ should request that the Veteran provide any relevant outstanding private treatment records not already associated with the record. Further, the AOJ should obtain any outstanding VA treatment records for the period from May 2016. Accordingly, the issues of a higher initial disability rating for the service-connected mental health disorders of major depressive disorder and PTSD in excess of 50 percent and service connection for a memory disorder are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private mental health treatment records. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the service-connected mental health disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the service-connected mental health disorders, not already of record, for the period from May 2016. 3. Schedule the appropriate VA mental health examination to assist in determining the current level of severity of symptoms and occupational and social impairment of the service-connected depression and PTSD. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should report the extent of the depression and PTSD symptomatology in accordance with VA rating criteria. Further, the VA examiner should render the following opinions: A) During the relevant period on appeal, has the Veteran had an actual memory disorder and/or symptoms of memory loss? B) If the Veteran has had a memory disorder or symptoms of memory loss during the relevant period on appeal, are the disorders and/or symptoms a symptom or manifestation of the service-connected mental health disability? C) If any memory disorder or symptoms of memory loss during the relevant period on appeal were not a symptom or manifestation of the service-connected mental health disorders, is it at least as likely as not (50 percent or higher degree of probability) that the memory disorder or symptoms of memory loss had onset during a period of active service, including as due to the stressors that caused the service-connected mental health disorders? 4. Then, readjudicate the issues of a higher initial disability rating for the service-connected mental health disorders of major depressive disorder and PTSD in excess of 50 percent and service connection for a memory disorder. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs