Citation Nr: 1801340 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-28 371A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1966 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This matter initially came before the Board in May 2017, when it was remanded to afford the Veteran an opportunity to present testimony at a videoconference hearing. The Veteran eventually testified before the undersigned Veterans Law Judge in a September 2017 videoconference hearing, and a transcript of this hearing is of record. The Veteran's service-connected coronary artery disease has been either rated as 30 percent or 100 percent disabling throughout the appeal period. The total disability rating has been in effect from August 2, 2013, to November 30, 2013, from September 4, 2015, to March 31, 2016, and from June 28, 2016. For the periods the Veteran has been in receipt of a total disability rating for CAD, the Veteran has already been granted special monthly compensation at the housebound rate under 38 U.S.C. 1114 (s) because one disability was rated as 100 percent disabling and the Veteran had additional service-connected disabilities independently rated at 60 percent or more. As such, the issue of entitlement to TDIU for the purpose of meeting the criteria for entitlement to SMC under 38 U.S.C. § 1114 (s) is moot for these time periods. Cf. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also 38 U.S.C. § 1114 (s) (West 2014). The Board will consider whether a TDIU is warranted prior to August 2, 2013, from December 1, 2013, to September 3, 2015, and From April 1, 2016, to June 27, 2016. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT With resolution of doubt in the Veteran's favor, his service-connected disorders render him unable to secure or follow substantially gainful employment prior to August 2, 2013, from December 1, 2013, to September 3, 2015, and from April 1, 2016, to June 27, 2016. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria for entitlement to TDIU prior to August 2, 2013, from December 1, 2013, to September 3, 2015, and from April 1, 2016, to June 27, 2016, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As the instant decision is fully favorable to the Veteran, any error in VA's duties to notify and assist is harmless. A 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. 38 C.F.R. § 4.16(a). 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). Entitlement to a total rating must be based solely on the impact of the veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Veteran submitted a claim of entitlement to increased compensation based on unemployability in March 2013. The application listed the Veteran's heart disability, diabetes, and PTSD as service-connected disorders that rendered the him unable to secure or follow substantially gainful employment. In statements of record and at the Board hearing, the Veteran reported that he had not worked since 1997 and that he had previously worked at an auto parts store. The Veteran described that employment as very active and not a sedentary or desk job. For the entire appeal period, the Veteran has met the schedular criteria for a TDIU. He has been in receipt of a 50 percent disability rating for service-connected PTSD, which exceeds the 40 percent threshold under 38 C.F.R. § 4.16(a). Also, his combined disability rating has been at least 70 percent when it was less than total due to the additional service-connected disabilities of coronary artery disease (CAD), diabetes mellitus (DM), peripheral neuropathy of the lower extremities, and his kidney stones. Thus, the only remaining consideration is whether the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. Initially, the Board notes that the Veteran is in receipt of disability compensation from the Social Security Administration. An April 1999 decision by an Administrative Law Judge shows that the Veteran was found to have not engaged in substantial gainful activity since June 1995 as a result of a nonservice-connected low back disorder and the Veteran's service-connected coronary artery disease status post myocardial infarction and bypass graft in December 1993. This opinion does not show that a service-connected disability, alone, was productive of unemployability. Various VA opinions are of record pertaining to the Veteran's claim of entitlement to a TDIU. In a June 2013 VA opinion, the VA examiner opined that the Veteran's PTSD resulted in occupational and social impairment with mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Limiting the opinion solely to the Veteran's service-connected PTSD, the VA examiner opined that the condition did not render the Veteran unable to secure and maintain substantially gainful physical and/or sedentary employment. Next, in a series of June 2013 disability benefits questionnaires, a VA examiner provided opinions on whether the Veteran's service-connected disabilities other than PTSD rendered the Veteran unable to secure or follow substantially gainful employment. The examiner provided the following opinions: 1) as a result of CAD, the Veteran was unable to perform heavy labor work, but could perform light labor and sedentary duty; 2) service-connected DM caused no limitations on any type of employment, whether physical or sedentary; and 3) service-connected kidney stones caused no limitation on any type of employment, whether physical or sedentary. In a May 2014 examination report, an examiner found that the Veteran's service-connected CAD rendered the Veteran unable to participate in prolonged (greater than 15 minutes) exertional activities. In an October 2015 VA examination for PTSD, the examiner noted that the Veteran had reported that his PTSD had very little impact on his daily functions. The largest impairment described was with the Veteran's sleep. He reported that he was unable to obtain more than six hours per night, would often have nightmares, and would hit and kick his wife in his sleep. The examiner opined that the Veteran's PTSD resulted in occupational and social impairment with mild or transient symptoms which decrease work efficiency and the ability to perform occupational task only during periods of significant stress, or symptoms controlled by medication. In a March 2016 examination for PTSD, a VA examiner noted that the Veteran had expressed his belief that he was unemployable primarily because of his physical limitations. However, noted the examiner, the Veteran's irritability, loud and bombastic verbal style, and behavioral rigidity could prove annoying to those around him and could interfere to a moderate degree with his ability to maintain appropriate workplace relationships over time. The examiner noted that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. Contrary to the findings of the VA examinations, the Veteran has consistently contended that his service-connected CAD has rendered him unable to secure or follow substantially gainful employment. In his November 2013 substantive appeal, the Veteran argued that he was not employable because his heart, weight, and kidney disorders, including his medications for these conditions. He related that his nonservice-connected back disorder had nothing to do with his unemployability. Private medical opinions have been received that support this contention. In September 2013, VA received an August 2013 opinion from DRY, who had been the Veteran's primary care physician for numerous years. The doctor stated that the Veteran had multiple chronic and severe medical conditions that rendered him unemployable. A September 2013 opinion was submitted by Dr. FS, the Veteran's treating doctor for CAD. Dr. FS opined that the Veteran is 100 percent unemployable due to his conditions. Next, in a July 2016 letter from Dr. FS it was noted that the Veteran had suffered a heart attack in August 2013, and since then he had suffered from chronic diastolic congestive heart failure with moderate reduced heart function. The Veteran also suffered from shortness of breath and edema that limited his abilities to work at that time. The Veteran was following up in the doctor's office frequently to reduce possible hospital admissions. In an August 2016 letter, Doctor FS noted that the Veteran had been unemployable since he suffered his August 2013 heart attack, and he would never be employable due to his heart condition. In another February 2017 letter from Dr. FS, the doctor noted that the Veteran has a very severe heart condition that is never going to improve. The Veteran will have this condition for the rest of his life and will require continued monitoring. The Board has carefully weighed the evidence and finds that the evidence supports, at the very least, a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment from August 2, 2013, the date of his most recent heart attack. In making this finding, the Board accords significant probative weight to the July and August 2016 letters from Dr. FS, the Veteran's heart doctor. Dr. FS has the unique perspective of monitoring the Veteran's health throughout the appeal period, and the Veteran's medical history is not inconsistent with the opinions proffered in 2016. Private treatment records document that the Veteran suffered a myocardial infarction on August 2, 2013. In light of this probative evidence, most clearly articulated in the August 2016 opinion, TDIU is warranted for all relevant appeal periods after the Veteran's heart attack on August 2, 2013. For the appeal period prior to August 2, 2013, the Board further finds that a TDIU is warranted. The September 2013 letter from Dr. FS, taken by itself, does not clearly reflect consideration of solely the Veteran's service-connected CAD. That is, the letter merely states that the Veteran's conditions render him unemployable. It is not clear that Dr. FS is referring solely to service-connected disorders. However, the July and August 2016 opinions provide context to the September 2013 opinion. With the receipt of the 2016 letters, it becomes clear that Dr. FS has limited his opinions regarding the Veteran's employability to his service-connected CAD. Thus, the September 2013 letter is favorable evidence that supports a finding that the Veteran was unemployable prior to August 2013. The Board will therefore resolve reasonable doubt in the Veteran's favor and find that a TDIU is warranted from the date the Veteran submitted his claim in March 2013. The Board notes that it grants TDIU herein based both on the effects of both the Veteran's service-connected CAD and his service-connected PTSD. The Veteran has been found to have occupational impairment due to his PTSD throughout the appeal period, and such limitation is considered in the instant decision. The Veteran does not meet the criteria for a TDIU based on any single disability alone prior to August 2, 2013, from December 1, 2013, to September 3, 2015, and from April 1, 2016, to June 27, 2016. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). ORDER Entitlement to TDIU prior to August 2, 2013, from December 1, 2013, to September 3, 2015, and from April 1, 2016, to June 27, 2016, is granted, subject to the regulations governing the payment of VA monetary benefits. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs