Citation Nr: 1802313 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-40 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). (The issues of entitlement to an initial compensable disability rating for left ear sensorineural hearing loss and entitlement to service connection for a right ear hearing loss disability are addressed in a separate Board decision). REPRESENTATION Veteran represented by: Kathy A. Lieberman, Attorney at Law ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to August 1982 and from December 1990 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for recurrent headaches, sleep disorders and GERD have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, the Veteran submitted a May 2015 VA Form 21-526b (Veteran's Supplemental Claim for Compensation) on which he marked a box requesting service connection for new disabilities and stated "[p]lease read the enclosed supporting letter outlining the conditions Page 2." The referenced accompanying letter listed a variety of conditions that the Veteran was seeking service connection for; one such condition (erectile dysfunction) was granted entitlement to service connection in an August 2015 rating decision and two other listed conditions appear encompassed by the Veteran's already service-connected PTSD (lack of concentration and memory loss, and all nervous conditions (with reference to "the implausible number of varied psychiatric manifestations")). The issues of recurrent headaches, sleep disorders and GERD appear to be separate claims, and despite being afforded VA examinations in August 2015 related to these claims, the AOJ has not adjudicated these issues. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT The Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW Entitlement to a TDIU is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran filed a claim for entitlement to a TDIU in February 2012 with the submission of a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). A schedular TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities that are of a certain combined disability rating. See 38 C.F.R. § 4.16(a) (2017). The Veteran's service connected disabilities include: posttraumatic stress disorder (PTSD) (rated at 50 percent from January 2006, exclusive of periods when rated at 100 percent due to hospital treatment or observation in excess of 21 days pursuant to 38 C.F.R. § 4.29); mild degenerative changes and lumbar myositis (herein back disability) (rated at 40 percent from November 2009); cervical myositis, degenerative joint disease, disc disease with bulging disc at C3-C4, C4-C5 and C6-C7, herniated disc at C5-C6 with compression of theca sac (herein neck disability) (rated at 20 percent from November 2009); unilateral tinea manum left palm and tinea unguium left thumbnail (rated at 10 percent from January 2006); tinnitus (rated at 10 percent from October 2014); left hear sensorineural hearing loss (rated at 0 percent from October 2014) and erectile dysfunction (rated at 0 percent disability from April 2015). The Veteran's combined disability rating from November 2009 has been 80 percent (exclusive of periods when assigned a 100 percent disability rating due to hospital treatment or observation in excess of 21 days pursuant to 38 C.F.R. § 4.29). As such, he meets the schedular criteria for a TDIU. On the previously mentioned February 2012 VA Form 21-8940, the Veteran noted that all his service connected conditions prevented him from securing or following any substantially gainful occupation, that his disability affected his full time employment in November 2003, that he last worked and became too disabled to work in September 2005 and that he left his last job because of his disability. The Veteran reported 4 years of college education, that he was granted Social Security Administration (SSA) disability benefits as result of his service-connected condition and he stated that due to the severity and combination of my incurred disabilities am preclude from any gainful employment. The Veteran reported working from 1987 to 2005 in sales (other evidence of record referenced that he worked in a grocery store). A SSA Disability Determination and Transmittal document noted that the Veteran was disabled from August 2006 and noted a primary diagnosis of major depression with psychotic features and a secondary diagnosis of disorders of the back. The evidence reflected that the Veteran's PTSD was manifested by a variety of symptoms and that he was hospitalized (for treatment and/or observation) on multiple occasions related to his PTSD. With respect to hospitalization, evidence indicated that he was hospitalized in October 2010 (noted in a December 2010 VA treatment record to have been for diagnoses of depression/PTSD and reported on the February 2012 VA Form 21-8940 to have been for a period of 11 days), June to July 2011 (noted be for a period of 15 days by a December 27, 2011 VA treatment note that referenced the Veteran's "last admission to the Day Hospital"), December 2012 to January 2013 (noted for a period of 23 days to the Day Hospital Program by VA treatment records, for which he was granted a 100 percent disability rating pursuant to 38 C.F.R. § 4.29), October 2014 (noted in a June 2015 VA treatment record to have been for a diagnosis of PTSD) and December 2015 to January 2016 (reported on the Veteran's January 2016 claim as being for 25 days, for which he was granted a 100 percent disability rating pursuant to 38 C.F.R. § 4.29). Of record is a March 2012 statement from private Dr. J.J. that listed a principal diagnosis of "PTSD chronic severe active" and a secondary diagnosis of "discogenic disease cervical and lumbar." It was further noted that the Veteran's PTSD "is chronic and extremely severe," that the Veteran "has no hea[l]thy industrial nor social capabilities...He is found to be unable to in any gainful activity - he is not a candidate for vocational rehabilitation" and that "the overall prognosis is extremely severe. Substantial improvement will not occur." The Veteran's was afforded VA PTSD examinations June 2011 (dated prior to the February 2012 claim on appeal), May 2013 and June 2015. The June 2011 VA examination report stated that "the Veteran claims suicidal ideation, anxiety, nightmares, guilty feelings, and hopelessness. As per Veteran symptoms are long standing, persistent, frequent, and severe." Reduced reliability and productivity due to PTSD symptoms was noted. The May 2013 and June 2015 VA examination reports were not particularly detailed. The May 2013 VA examination report stated that the Veteran's level of occupational and social impairment in regard to all mental diagnoses was best summarized as "[o]ccupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." Anxiety was the only symptom marked from a list of symptoms related to the PTSD diagnostic criteria. The June 2015 VA examination report listed the same level of occupational and social impairment. Anxiety and depression were the only symptoms reported under a section related to the PTSD diagnostic criteria and other symptoms were listed of "loneliness; frustration over his physical limitations; anniversary grief reaction." The examination report stated that the Veteran "has had one inpatient hospitalization due to suicidal ideation and two partial hospitalizations." As noted above, the Veteran was also hospitalized subsequent to this VA examination in December 2015 to January 2016 for 25 days, for which he was granted a 100 percent disability rating pursuant to 38 C.F.R. § 4.29. Also of record is an August 2015 Central Nervous Systems VA examination report, which noted a diagnosis of memory loss and noted that such would impact his ability to work. An accompanying opinion stated that "[a]pparently the concentration and recent memory difficulties are secondary to the emotional complications [the Veteran] exhibits, mainly the service-connected PTSD." It was also noted that during the mental state examination the Veteran was "not fully cooperative in the process and very anxious." The VA treatment records include a December 18, 2012 psychiatry note that included an assessment of "[t]oday with exacerbation of symptoms, feels frag[il]e, and is dealing with acute stressors. [W]ill provide referral to Day hospital." A December 27, 2012 psychiatric initial evaluation note referenced the Veteran as earlier that month becoming "overwhelmed with sadness, helplessness/hopelessness, decreased drive, self esteem and on/off thoughts of death which never deteriorated into suicide ideation." A December 27, 2012 day hospital nursing program initial assessment note stated that the Veteran reported flashbacks, isolated, being irritable, difficulty sleeping, nightmares, hypervigilance and occasional thoughts of death and death wishes (but it was noted that "yet reliably denies suicidal/homicidal ideations or structured plans). It was also noted that the Veteran reported at times to "hearing his name being called like in the military," that he believes he is being followed and that at night he sees "like some shadow, as if someone just went past." A December 28, 2012 mental health occupational therapy initial assessment note referenced exacerbation of depressed mood, diminished grooming interest, that restorative sleep was not achieved, occasional memory lapses, impulsive decision making and restricted affect. It was also stated that the Veteran was "reported to be dealing with challenges in the areas of concentration, memory, anxiety management, problems solving, diminished motivation, in occasions loosing controls, making decisions impulsively, isolating himself and sleeping difficulties, that seem to be affecting his participation in his life occupations/roles." The VA treatment records dated following this period of hospitalization from February 2013 to May 2013 noted reports of anxiety, feeling sad, less appetite, lack of energy and interest, forgetfulness problems, nightmares, flashbacks, being easily startled, that he hears voices, that he "at times sees shadows" and that he "tends to become isolated and withdrawn when not feeling emotionally stable as to avoid conflic[t]s with wife and family." In addition, the Veteran's representative described on the November 2014 VA Form 9 (Appeal to [the Board]) VA treatment records related to an October 2014 hospitalization. It was noted that during this hospitalization the Veteran "was characterized as a high risk for suicide, and put on suicide watch." It was noted that the Veteran "contracted for safety due to suicidal ideation, and he 'accepts admission to prevent further deterioration of his condition.'" It was further noted that following discharge, the Veteran "remained in the day program for over 2 weeks." In addition, the Veteran was referenced as presenting to the hospital "agitated, anxious and combative," he was referenced as having "intense flashbacks and nightmares, and reported auditory hallucinations" and he was "noted to have poor insight and judgement." With respect to the Veteran's back and neck disabilities, entitlement to service connection was granted by the Board in a June 2016 decision and the AOJ assigned disability ratings in a September 2016 rating decision. The last VA examination for the Veteran's back and neck disabilities was conducted in November 2009. The November 2009 VA spine examination noted symptoms of paresthesias (low back pain was also noted as radiating to both lower extremities), fatigue, decreased motion, weakness and spasms. Low back and cervical pain was noted to be severe, with constant duration and a daily frequency. Flare-ups were reported as severe, with a weekly occurrence and a duration of 1-2 days and it was noted that the Veteran reported being unable to perform any activity during flare-ups. It was noted that the Veteran used a cane and was limited in walking to 1/4 mile. The VA examination report noted significantly reduced range of motion findings for all motions measured related to the Veteran's back and neck. See 38 C.F.R. § 4.71a, Plate V (2017) (providing normal range of motion measurements for the cervical and thoracolumbar spine). Physical examination for the cervical and thoracic spine noted spasm, guarding, pain with motion and tenderness bilaterally. The examination report noted the effects on usual daily activities as "prevents" with respect to exercise, sports and recreation (for the back disability and moderate for the neck disability); severe with respect to chores, shopping, bathing, dressing and toileting; and moderate with respect to traveling and grooming. The VA treatment records related to the Veteran's back, a December 27, 2012 day hospital program nursing initial assessment note that referenced stiffness and pain and stated that the Veteran "[s]uffers from chronic...back pain, which he rates as 5-6/10. States that 5 is tolerable intensity pain[.] Prolonged sitting worsens it and walking helps." A January 10, 2013 VA emergency department note that stated that the Veteran "always have [back pain] since years ago but worsen yesterday at night" and noted that the Veteran had felt pain while on a treadmill and that the pain was worse at night. Pain was noted to be 10 out of 10 in severity. Upon review, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. As noted above, the Veteran's PTSD was manifested by a variety of symptoms and the evidence reflected that the Veteran had been hospitalized during the appeal period related to his PTSD. Accordingly, his service-connected disabilities would impact his ability to secure or follow any form of employment, to include physical and sedentary employment. In addition, the Veteran's back and neck disabilities were manifested by pain, which was reported to worsen with prolonged sitting (in regards to the back), and significantly reduced range of motion. These disabilities would accordingly result in functional impairment. Upon consideration of the Veteran's service-connected disabilities collectively, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. As such, the Board concludes that entitlement to a TDIU is warranted and the Veteran's claim is therefore granted. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). ORDER Entitlement to a TDIU is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs