Citation Nr: 1802457	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  05-08 056	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for a low back disability, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317.

2.  Entitlement to increases in the staged (30 percent prior to May 11, 2016, and 70 percent from that date) ratings assigned for anxiety disorder.

3.  Entitlement to an initial rating in excess of 30 percent for obstructive airway disease.

4.  Entitlement to a rating in excess of 10 percent for bilateral hearing loss.

5.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to May 11, 2016.




REPRESENTATION

Appellant represented by:	Attorney Kathy A. Lieberman


ATTORNEY FOR THE BOARD

D. Schechner, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from October 1981 to October 1984 and from November 1990 to August 1991, with additional Reserve service.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2004 and August 2008 rating decisions by the San Juan, Puerto Rico RO.  In February 2012, the matters were remanded for additional development.  An interim [August 2016] rating decision granted a 70 percent rating for anxiety disorder, effective May 11, 2016.

The August 2016 rating decision also granted the Veteran entitlement to TDIU, effective May 11, 2016, based on meeting the schedular requirements, due to the award of a 70 percent rating for anxiety disorder, on that date.  In August 2017, the Veteran timely filed a notice of disagreement with the effective date assigned for TDIU.  The Board finds the claim for an earlier effective date for the award of TDIU to be inextricably intertwined with the claims currently on appeal before the Board, because the Veteran has specifically alleged that he is entitled to TDIU based on his anxiety disorder, obstructive airway disease, and bilateral hearing loss; and the matter is addressed below.

The issues of service connection for a low back disability and entitlement to TDIU prior to February 15, 2005 are being REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action on his part is necessary.


FINDINGS OF FACT

1.  Prior to February 15, 2005, the Veteran's anxiety disorder is not shown to have been manifested by symptoms productive of impairment greater than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; symptoms productive of occupational and social impairment with reduced reliability and productivity were not shown.

2.  From February 15, 2005 to January 30, 2009, it is reasonably shown that the Veteran's anxiety disorder was manifested by symptoms productive of occupational and social impairment with reduced reliability and productivity; symptoms productive of occupational and social impairment with deficiencies in most areas were not shown.

3.  From January 30, 2009, it is reasonably shown that the Veteran's anxiety disorder has been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; at no time under consideration is it shown to have been manifested by symptoms productive of total occupational and social impairment.

4.  At no time under consideration is the Veteran shown to have FEV-1 of 40 to 55 percent predicted; or FEV-1/FVC of 40 to 55 percent; or DLCO (SB) of 40- to 55-percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg in (with cardiorespiratory limit).

5.  At no time under consideration is the Veteran's hearing acuity shown to have been worse than Level XI in the right ear and Level II in the left ear.

6.  From February 15, 2005, it is reasonably shown that the Veteran's service-connected disabilities rendered him unable to maintain substantially gainful employment.


CONCLUSIONS OF LAW

1.  The Veteran's anxiety disorder warrants "staged" ratings of 30 percent (but no higher) prior to February 15, 2005; 50 percent (but no higher) from February 15, 2005 to January 30, 2009; and 70 percent (but no higher) from (the earlier effective date of) January 30, 2009.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.130, Diagnostic Code (Code) 9413 (2017).

2.  A rating in excess of 30 percent for obstructive airway disease is not warranted.  38 U.S.C. §§ 1155, 5107 (2012); 3.321(b)(1), 4.1-4.7, 4.21, 4.97, Code 6604 (2017).

3.  A rating in excess of 10 percent for bilateral hearing loss is not warranted.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.85, 4.86, Code 6100 (2017).

4.  From February 15, 2005, the schedular criteria for a TDIU rating are met and a TDIU rating is warranted.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  VA's duty to notify was satisfied by correspondence in July 2003, March 2005, March 2006, January 2007, March 2007, January 2008, and August 2008.  See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159.  
The Veteran has not raised any issues with the duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F, 3d, 1378 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or does not show, as to the claims.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings."  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Anxiety disorder

Anxiety disorder is rated under the General Rating Formula for Mental Disorders.  A 30 percent rating is warranted when the evidence demonstrates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events.

A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  

A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, Code 9413.  

Regarding the rating criteria, the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002).  Because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and the plain language of this regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). "[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."  Id. at 117.  Although a veteran's symptoms are the "primary consideration" in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a 70% disability evaluation "also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'"  Id. at 118.  

The Board has considered the Veteran's assigned Global Assessment of Functioning (GAF) scores, as documented in the record.  The scores reflect the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (DSM).  Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).  Lesser scores reflect increasingly severe levels of mental impairment.  See 38 C.F.R. § 4.130 (2013).

[Per revised regulation, the rating criteria are now based upon the American Psychiatric Association's DSM-5.  While the DSM-5 did not incorporate the use of GAF scores to identify levels of disability, discussion of such scores is appropriate for evaluations/treatment provided prior to VA's adoption of DSM-5.]

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remissions.  38 C.F.R. § 4.126(a).  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment.  38 C.F.R. § 4.126(b).

In his May 2003 increased rating claim statement, the Veteran contended that he had fatigue, neuropsychological signs and symptoms, and sleep disturbance.

On August 2003 VA examination, the Veteran reported insomnia, nightmares and depression.  The diagnoses included neuropsychiatric condition and insomnia.

On November 2003 VA examination, the Veteran was noted to have a history of depression, anxiety, and complaints of memory loss.  On mental status examination, his affect was inappropriate and his mood was mostly anxious.  No thought disorder was evident, and he appeared to have good judgment, reasoning and memory.  He was oriented to all spheres.

On February 15, 2005 VA examination, the Veteran reported that he received treatment at the State Mental Health Center, and he had had no psychiatric admissions.  He reported that he was married and the father of three children; his wife studied and he remained at home.  He reported having many ups and downs and his condition was very variable.  He took Prozac, Valium, and Trilafon depending on how his day went or how he felt, at times taking more or less; the examiner noted he had poor management of his prescribed medications.  The examiner noted that the Veteran's complaints were vague and superficial regarding variable feelings of anxiety and depression; he reported being very irritable and very poorly tolerant to frustration.  He reported that his wife had accused him of domestic violence on several occasions, and he had even been arrested, but the charges had been dropped.  He reported involvement in arguments and fights with others, including one situation in which he was stabbed.  He reported not getting along with others, including his own family members.  He denied violent behavior against his children.

On mental status examination, the Veteran was casually dressed and groomed and wore dark sunglasses throughout the interview.  He was in full contact with reality and showed no impairment of thought process or communication.  There were no delusions or hallucinations present or described, and no inappropriate behavior was observed.  He did not report suicidal or homicidal ideas, although he reported having poor control when he gets angry.  He had the ability to maintain personal hygiene and other basic activities of daily living.  His affect was adequate, and his mood was mildly anxious and mildly depressed.  He was fully oriented.  He showed no memory loss or impairment and no obsessive or ritualistic behavior.  His rate and flow of speech was adequate.  He reported no panic attacks.  He reported feeling depressed at times with no desire or energy to do anything, and he reported difficulties in relating to others.  He reported being unable to sleep adequately but did not specify why, except that he went to bed very late.  The examiner opined that the Veteran's current signs and symptoms interfered moderately with interpersonal relations and moderately severely with employment.  The diagnosis was anxiety disorder, not otherwise specified, with depressive features, with an Axis II diagnosis of personality disorder with very strong borderline and dependent characteristics; a GAF score of 55 to 60 was assigned.

In an April 2005 letter, treating psychiatrist Dr. Ortiz noted that the Veteran had been receiving outpatient treatment since November 2003, with additional treatment at other clinics since about 1991.  Dr. Ortiz noted the Veteran's complaints about problems with his ability to concentrate, attention span, depression, anxiety, hallucinations (auditory and visual), along with difficulty sleeping.  He noted the Veteran's reports of a number of lost job opportunities as a result of his inability to concentrate and focus along with chronic and unremitting depression and psychosis.  Dr. Ortiz opined that most, if not all, of the Veteran's symptomatology appear to have evolved in the early 1990s during service and the years that followed.  Dr. Ortiz opined that the Veteran's inability to hold a job has had devastating consequences for him and his family.  He stated that the diagnosis was schizoaffective disorder, bipolar type, treated with fluoxetine (an antidepressant), Trilafon (an antipsychotic), and diazepam (a minor tranquilizer), and opined that this attests to the severity of the Veteran's condition and his deterioration over time.

On May 2005 VA social and industrial field survey report, the Veteran reported feeling anxious and not sleeping well, only sleeping about 4 hours per night.  He reported taking Diazepam.  He reported having behavioral problems that consisted in engaging in constant arguments with his neighbors and in his job.  He reported having legal problems with his wife due to domestic violence.  He reported problems concentrating.  He reported that he prefers to be alone most of the time and he did not have many friends or socialize with his friends.  He was noted to have occupational problems in that he was unable to perform a gainful activity due to feeling anxious.  The conclusion was that the Veteran was unable to work due to his psychiatric condition; he showed behavioral problems in his home and in the community which was indicative of his degree of impairment.  He was noted to have moderate industrial impairment and moderate social impairment.

In an August 2005 letter, evaluating psychiatrist Dr. Carter-Torres stated that the Veteran was noted to have a history of panic symptoms occurring on a daily basis, impaired ability to concentrate, persistent hallucinations, severe irritability with labile affect, flashbacks regarding witnessed deaths in the military, severe insomnia accompanied by nightmares, dismissal from post office work for problems with performance, inability to sustain a stable relationship, and symptoms persisting in spite of treatment with antipsychotic, anxiolytic, and antidepressant medication.  On mental status exam, the Veteran's appearance was somewhat disheveled, and he was keyed up and somewhat agitated.  His mood was anxious, dysphoric and irritable, and his affect was labile and anxious.  His thoughts were circumstantial and his thought content included reported auditory hallucinations.  His concentration was poor.  Dr. Carter-Torres noted that the Veteran has a diagnosis of schizoaffective disorder and opined that, based on the history and presentation, a diagnosis of PTSD could not be ruled out.  He opined that the Veteran's condition was felt to be severe as evidenced by poor functioning both at home and at work, and the number and severity of his symptoms.

In a February 2006 letter, treating psychiatrist Dr. Ortiz noted that the Veteran reported inability to concentrate, depressed mood, poor attention span, and insomnia, as well as hallucinations and confusions on a very frequent basis.  Dr. Ortiz opined that, as a result of his severe mental condition of schizoaffective disorder and the treatment thereof, the Veteran is unable to understand simple and/or complex commands and is extremely forgetful, and he is unable to focus on any subject for a minimally reasonable amount of time, and therefore he cannot work at a job where others depend on him or where he would be constantly distracted.  Dr. Ortiz opined that it would be expected that the Veteran would spend an inordinate amount of time seeking and/or receiving intensive psychiatric treatment, and safety at a workplace would be a constant issue, not to mention the inability to complete required tasks or get along with co-workers and supervisors.  He opined that the Veteran was expected to continue in treatment for his chronic and severe psychiatric condition indefinitely.

In an October 2006 letter, Dr. Ortiz noted the Veteran's complaints of inability to concentrate, depressed mood, diminished attention span and concentration, increased irritability, anhedonia, insomnia, lack of energy, and frequent audio/visual hallucinations.  Dr. Ortiz opined that the Veteran's diagnosed schizoaffective disorder, bipolar type, causes significant impairment in his life from a psychiatric standpoint, including marked impairment in remembering work-like procedures, understanding and remembering detailed instructions, carrying out detailed instructions, maintaining regular attendance and being punctual within customary and usually strict tolerances, working in coordination with others without being unduly distracted, completing a normal workday and workweek without interruptions, performing at a consistent pace without an unreasonable number of (and/or lengthy) rest periods, interacting appropriately with the general public, and dealing with normal work stress.  Dr. Ortiz noted that the Veteran had experienced anxiety attacks and anticipatory anxiety and phobic avoidance of circumstances involving groups of people.  Dr. Ortiz opined that the combination of the Veteran's medical and psychiatric conditions evidence his inability to work and function at a higher level from the clinical standpoint.

The medical evidence reflects that in November 2006, the Veteran was hospitalized for one week for irritability and aggressiveness and fear of harming others.  He was admitted again in January 2007 for 5 days and in February 2007 for one week.

On November 2007 VA examination, the Veteran reported vague symptoms of anxiety and depression and being forgetful.  He reported that life is problematic and he had made efforts to maintain his family but at times he had fleeting thoughts about killing himself with no actual plans.  On mental status examination, he was calm, in contact with reality, and very aware of the interview.  His psychomotor activity and speech were unremarkable and his attitude was cooperative.  His affect was appropriate, his attention was intact, and he was fully oriented.  His thought process included an overabundance of ideas, and his thought content included suicidal ideation and preoccupation with one or two topics.  He showed no delusions or hallucinations and his judgment was intact.  His insight was impaired in that he did not understand that he has a problem.  He did not have inappropriate behavior or obsessive/ritualistic behavior.  He reported no panic attacks or homicidal or suicidal thoughts.  His impulse control was fair.  He reported problems due to domestic violence in the past but denied any present violence or violent behavior against his children.  His remote memory was normal and his recent and immediate memory was mildly impaired.  The diagnoses included anxiety disorder not otherwise specified with depressive features, and borderline personality disorder; a GAF score of 55 was assigned.  The examiner opined that the Veteran's mental disorder symptoms were controlled by continuous medication.

On January 30, 2009 VA examination, the Veteran reported having a good relationship with his wife of more than 20 years.  He described having a "strict, military" relationship with his 3 teenaged children.  He reported having no friends and his relatives did not understand him.  He reported having made several suicide attempts with pill overdoses; the examiner noted that he had a behavioral flag on his VA record to prevent him from having direct access to prescribed medications for this reason.  He reported having had several violent episodes including being charged with domestic violence by his wife.  He reported that he felt like hurting himself and others every day of a severe intensity, sleep difficulties with initiation and frequent awakenings every day, memory problems of forgetting almost everything including the date, internal nerves with tremors of his whole body 5 days per week of a moderate intensity, flashbacks every day, irritability and anger outbursts, and social isolation.

On mental status examination, the Veteran was casually dressed, restless, and tense.  His speech was unremarkable, his attitude was suspicious and irritable, his affect was appropriate, and his mood was anxious.  He was easily distracted.  He was oriented to person but not to time or place, noting that he did not know or want to know.  His thought process and content were unremarkable.  He displayed persecutory delusions that were not persistent.  His judgment was impaired in that he did not understand the outcome of his behavior; he partially understood that he had a problem.  He had sleep impairment and inappropriate behavior but no hallucinations, obsessive/ritualistic behavior, panic attacks, or homicidal or suicidal thoughts.  He had fair impulse control with some episodes of violence.  His remote and recent memory was moderately impaired and his immediate memory was severely impaired.  He reported being unable to manage financial affairs on his own or his family's behalf.  The diagnosis was anxiety disorder not otherwise specified, and a GAF score of 60 was assigned.  The examiner opined that the Veteran's psychiatric signs and symptoms resulted in deficiencies in most areas, including judgment (irritability and anger outbursts), thinking (negativistic/pessimistic view of himself, his environment, and the future), family relations (history of marital arguments with domestic violence at unspecified dates), work (fired from his job at the postal office in 1999 due to "not meeting the expectations at work"), and mood (anxious and depressed).  The examiner further opined that there was reduced reliability and productivity due to psychiatric symptoms, that the Veteran is unable to keep a specific schedule, interact appropriately with peers or complete a normal workday on a gainful job.

On May 11, 2016 VA examination (pursuant to the Board's remand), the Veteran reported living with his wife of 27 years and their relationship had ups and downs; he described his relationships with his three adult children as good.  He reported no significant interpersonal relational problems.  The examiner cited a February 2016 treatment record in which the Veteran reported that when he takes his medication he feels better but otherwise he feels angry and upset about things in the past; he reported sadness, irritability, insomnia, memory loss, decreased problem-solving capabilities, poor concentration, anxiety, and nervousness, and he denied auditory or visual hallucinations or hopelessness.  On examination, his symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a worklike setting.

On mental status examination, the Veteran was spontaneous and established eye contact immediately.  He was alert, aware, fully oriented, and in contact with reality.  There was no evidence of psychomotor retardation or agitation.  His speech was clear with appropriate volume and circumstantial at times.  He repetitively talked about maltreatment toward him.  His mood was mildly anxious and labile and his affect was appropriate to his mood.  There was no evidence of delusion or hallucinations.  He denied suicidal or homicidal ideations or plans.  He presented some recent memory difficulties but otherwise his cognitive functions were preserved.  His insight and judgment were very superficial.  The diagnosis was unspecified anxiety disorder.  The examiner opined that the psychiatric disability caused occupational and social impairment with reduced reliability and productivity.  The examiner opined that the Veteran's neuropsychiatric condition, although chronic, has been mostly stable; however, his mood instability can limit his capacity to interact effectively and on a sustained basis with other individuals.  The examiner opined that his social functioning in a work environment that involves interaction with the public, responding appropriately to persons in authority, or cooperative behaviors involving coworkers can be limited.  The examiner opined that no significant changes had been presented over the past years, with maintaining moderate symptoms and moderate difficulty in social and occupational functioning.

Based on this evidence, an August 2016 rating decision granted a 70 percent rating for unspecified anxiety disorder; anxiety disorder not otherwise specified, effective May 11, 2016 (the date of the VA examination showing increased symptomatology).

On August 2017 VA examination (pursuant to the Board's remand), the examiner noted that the Veteran has been under VA psychiatric treatment since November 2006; he was admitted to the inpatient psychiatric unit the day after he began treatment.  On his most recent [June 2017] VA treatment, the diagnoses included depressive disorder not otherwise specified, unspecified schizophrenia spectrum and other psychotic disorder (history of schizoaffective disorder), unspecified anxiety disorder, and unspecified personality disorder.  His reported symptoms included depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a worklike setting; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.  The Veteran was wheelchair bound after a recent stroke; he had a severely depressed affect with congruent mood.  He reported feeling anxious all the time, difficulty sleeping in any position, changes of mood, isolation, and aggression.  The diagnosis was unspecified anxiety disorder.  The examiner opined that the Veteran's psychiatric disability results in occupational and social impairment with deficiencies in most areas.  The examiner opined that the Veteran was in immediate need for aid and attendance to perform activities of daily living solely due to his anxiety disorder, and he was housebound pertaining to both unspecified anxiety disorder as well as status post cerebrovascular accident.

Additional VA treatment records throughout the appeal period reflect symptomatology largely similar to that shown on the examinations described above.  The Veteran has also submitted lay statements describing his difficulties due to his psychiatric disabilities.




Prior to February 15, 2005

The evidence prior to February 15, 2005, shows that the Veteran's anxiety disorder picture during that period is best characterized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, consistent with the 30 percent rating assigned for that period.   

The August 2003 and November 2003 VA examinations reflect that, despite the Veteran's reports of insomnia, nightmares, depression and anxiety, there was no evidence of a thought disorder, he was fully oriented, and he appeared to have good judgment, reasoning and memory.  In short, the Board finds that the evidence prior to February 15, 2005 reflects occupational and social impairment no greater than that contemplated by the 30 percent rating assigned.   

From February 15, 2005 to January 30, 2009

However, the Board finds that from February 15, 2005, the Veteran, his treating and evaluating mental health personnel, and the VA examiners have reported symptoms that reflect occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent rating.  On VA examination on that date, the Veteran reported taking more or less Prozac, Valium, and Trilafon depending on how his day went or how he felt, and the examiner noted he had poor management of his prescribed medications; the examiner opined that the Veteran's symptoms interfered moderately with interpersonal relations and moderately severely with employment; and a GAF score of 55 to 60 was assigned.  The Veteran's treating psychiatrist Dr. Ortiz submitted letters in April 2005, February 2006, and October 2006 describing his impairment due to anxiety disorder, including difficulty concentrating, poor attention span, insomnia, anxiety, auditory and visual hallucinations, and chronic and unremitting depression and psychosis.  Dr. Ortiz opined that the Veteran could not work at a job where others depend on him or where he would be constantly distracted, and that this inability to hold a job had devastating consequences for him and his family.  Dr. Ortiz noted that the Veteran had experienced anxiety attacks and anticipatory anxiety and phobic avoidance of circumstances involving groups of people.  On May 2005 VA social and industrial field survey report, he was noted to have moderate industrial impairment and moderate social impairment.  On November 2007 VA examination, his thought process included an overabundance of ideas, his thought content included suicidal ideation and preoccupation with one or two topics, his insight was impaired, and his memory was mildly impaired, but his judgment was intact, he did not have inappropriate behavior and he reported no panic attacks or homicidal or suicidal thoughts; a GAF score of 55 was assigned, and the examiner opined that the Veteran's mental disorder symptoms were controlled by continuous medication.

In summary, the overall evidence reasonably reflects that from February 15, 2005, the Veteran's service-connected psychiatric disability was manifested by symptoms that resulted in occupational and social impairment with reduced reliability and productivity, due to such symptoms as: circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Notably GAF scores of 55 reported during this period are consistent with moderate symptoms.  Resolving reasonable doubt (regarding degree of disability) in his favor, as required, the Board finds that a 50 percent rating is warranted from February 15, 2005.  

From January 30, 2009

The Board finds that from January 30, 2009 (but no earlier), the Veteran, his treating and evaluating mental health personnel, and the VA examiners have reported symptoms that reflect occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood.  On VA examination on that date, the Veteran reported that he felt like hurting himself and others every day and he was socially isolated.  He was restless and tense, his attitude was suspicious and irritable, his mood was anxious, he was easily distracted, his judgment was impaired, and he had moderately to severely impaired memory.  Despite assigning a GAF score of 60 (which would be consistent with moderate symptoms), the examiner clearly opined that the Veteran's psychiatric signs and symptoms resulted in deficiencies in most areas, including judgment (irritability and anger outbursts), thinking (negativistic/pessimistic view of himself, his environment, and the future), family relations (history of marital arguments with domestic violence at unspecified dates), work (fired from his job at the postal office in 1999 due to "not meeting the expectations at work"), and mood (anxious and depressed).  The Board finds no reason to question the credibility of the Veteran's own accounts; they are consistent with reports by his treating mental health personnel and observations by VA examiners.  As the functional impairment described meets (or at least approximates) the schedular criteria for a 70 percent rating under Code 9413, the Board finds that such rating is warranted from January 30, 2009 (but not earlier, as the record does not show evidence of such worsening prior to that date).  38 C.F.R. § 4.7.

Continuing the analysis, the reports of the VA examinations, treatment records, and the Veteran's lay statements, overall, do not show his anxiety disorder to at any time under consideration have been of such severity as to warrant a 100 percent schedular rating.  There is no evidence (or even allegation) of symptoms such as persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or any other symptoms of similar gravity.  [The Board is aware that the Court has emphasized that the symptoms in the schedular criteria are merely examples and are not all-inclusive.  However, the absence of such symptoms is noted to acknowledge that the Court has also indicated that such symptoms provide independent bases for a finding that a 100 percent rating is warranted.]  The treatment records and examinations consistently show appropriate thought processes, behavior and communication.  At no time has the Veteran reported delusions of any kind.  While he did report suicidal ideation, he denied any plan or intent and was therefore not in persistent danger of hurting himself or others.  Notably, the Veteran has maintained relationships with his wife and adult children.  While the observations by the VA examiners and treatment providers suggest that he has increasingly limited social relationships and increased withdrawal, such impairment is clearly encompassed by the criteria for the 70 percent rating granted herein (which contemplate deficiencies in most areas).  The disability picture presented is not one consistent with total occupational and social impairment.  Consequently, a 100 percent schedular rating is not warranted for any period of time under consideration.

The Board notes that the Veteran's GAF scores throughout the appeal period are not consistent with ratings in excess of those now assigned, and do not present an independent basis for assigning ratings in excess of those now assigned.  

Regarding the lay statements submitted by the Veteran in support of this claim, such statements detail the types of problems that result from the Veteran's symptoms of anxiety disorder shown.  The levels of functioning impairment described by the Veteran are encompassed by the criteria for the 30 percent, 50 percent and 70 percent ratings now assigned for the periods of time on appeal; they do not support assignment of further increases in the schedular ratings.

Obstructive airway disease

The Veteran's obstructive and restrictive airway disease is rated under 38 C.F.R. § 4.97, Code 6604, for chronic obstructive pulmonary disease (COPD).  Under the rating schedule, a 30 percent rating is warranted when there is COPD with FEV-1 of 56 to 70 percent predicted; or FEV-1/FVC of 56 to 70 percent; or DLCO (SB) 56 to 64 percent predicted.

A 60 percent rating is warranted when there is COPD with FEV-1 of 40 to 55 percent predicted; or FEV-1/FVC of 40 to 55 percent; or DLCO (SB) of 40 to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg in (with cardiorespiratory limit).

On April 2007 VA examination, the Veteran reported mild respiratory difficulty including dyspnea upon mild exertion, occasional bouts of non-productive cough and wheezes on exertion.  He was not using any medications for his condition.  He reported that he had gained weight and developed a loud snoring problem with repeated awakenings in the night due to air hunger and daytime somnolence.  He denied asthma attacks or visits to urgent care clinics due to the pulmonary condition.  He reported that he had limited his activities due to dyspnea, including swimming, basketball, and household chores that require exposure to detergents, fumes, and/or strenuous activity.  He reported symptoms including intermittent non-productive cough less than daily, wheezing upon exercising, and occasional dyspnea on mild or moderate exertion; he could not do severe exertion.  He reported that when walking about 100 feet he developed shortness of breath and sometimes wheezing.

On physical examination, there were no abnormal respiratory findings.  His diaphragm excursion and chest expansion were normal.  There was no chest wall scarring or deformity.  Asthma was not present and there were no signs of significant weight loss or malnutrition.  A chest X-ray was normal.  On pulmonary function testing, FVC was 76 percent predicted and FEV-1 was 72 percent predicted; the test suggested mild obstruction and restriction to airflow, and mild air trapping was noted.  Post-bronchodilator testing was not indicated for the Veteran's condition.  There was no evidence of cor pulmonale, pulmonary hypertension, or right ventricular hypertrophy.  The diagnosis was clinical COPD; the Veteran reported worsening of symptoms but the history did not correlate well with physical exam, pulmonary function tests, and chest X-rays.  The examiner noted that the pulmonary function tests had improved as compared to the previous examination.  There was no evidence of restrictive disease on examination.  The examiner opined that, due to his respiratory condition, the Veteran could not work in a job that requires more than ordinary activity but he could be able to work in a sedentary job with clerical tasks.

On April 2008 VA examination, the Veteran reported constant or near constant non-productive cough, weekly wheezing, and dyspnea that occurred occasionally at rest or on mild exertion and frequently on moderate or severe exertion.  He reported constantly using a CPAP day and night due to complaints of dyspnea as being present almost every day.  On physical examination, dyspnea was noted on mild and moderate exertion.  His diaphragm excursion and chest expansion were normal.  There was no chest wall scarring or deformity.  He reported mild impairment between asthma attacks.  There were no signs of significant weight loss or malnutrition.  Chest X-ray showed no pulmonary infiltration.  The April 2007 pulmonary function test results were cited.  There was no evidence of cor pulmonale, pulmonary hypertension, or right ventricular hypertrophy.  The diagnoses included obstructive respiratory disease and sleep apnea.  The examiner opined that the condition had significant effects on the Veteran's general occupational effect, causing poor social interactions, lack of stamina, weakness or fatigue, and resulting increased absenteeism.  The examiner noted that although the Veteran presented with mycoplasma positive, there was no clinical evidence of active mycoplasma-related condition at the time of examination.

On May 2016 VA examination (pursuant to the Board's remand), the Veteran reported easy fatigue and dyspnea with exertion and frequent dry cough.  He denied the use of medications, inhalers, bronchodilators, or systemic antibiotics or steroids.  There was no history of pneumonia or bronchitis, no hospital admissions or emergency room visits related to the respiratory condition, and no history of surgical procedures or special treatment procedures.  On physical examination, his lungs were clear to auscultation with no wheezes, rales, or crackles; oxygen at room air was 100 percent.  A March 2016 chest X-ray was cited to be within normal limits.  The examiner cited April 2007 pulmonary function test results: FVC was 76 percent predicted and FEV-1 was 72 percent predicted.  The examiner noted that new pulmonary function tests were ordered but were unable to be performed because the Veteran showed poor effort and did not follow the instructions; the test values used were from 2007 and reflected the Veteran's current respiratory status.  The examiner was unable to determine the Veteran's oxygen consumption or maximum exercise capacity since the tools to determine the requested parameters were not available on examination; there was no indication to perform a cardiac catheterization or echocardiogram since there were no cardiovascular complaints, and the available ECG did not show evidence of ventricular hypertrophy.  The examiner noted that the Veteran had normal oxygen saturation (100 percent at room air); lung auscultation was normal without evidence of wheezing, rales, crackles, or other abnormalities; and chest radiography revealed normal cardiovascular and pulmonary structures.  The examiner opined that the Veteran's respiratory condition was stable: he was not using any medication for it and there had not been any emergency room visits or hospitalizations.  The examiner noted that the VA treatment records did not show any respiratory condition exacerbations or respiratory complaints during the previous 5 years, and there was no evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or episodes of acute respiratory failure, and he did not require outpatient oxygen therapy.  The examiner opined that the Veteran's respiratory condition will not interfere in his ability to function in a sedentary occupational environment (clerical/desk jobs).

The reports of the VA examinations and the treatment records, overall, provide evidence against the Veteran's claim; they do not show that symptoms of the Veteran's obstructive and restrictive airway disease produce pulmonary function test results of FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, DLCO (SB) of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg in (with cardiorespiratory limit), so as to warrant a higher rating of 60 percent.  Indeed, the May 2016 VA examiner opined that the test values from 2007 reflected the Veteran's current respiratory status, he had normal oxygen saturation, and his respiratory condition was stable; the examiner noted that the VA treatment records did not show any respiratory condition exacerbations or respiratory complaints during the previous 5 years.  The Board notes the lay statements submitted by the Veteran in support of this claim, including those made during his VA examinations, describing the types of problems associated with the disability.  The symptoms described do not show that the obstructive and restrictive airway disease meets the criteria for a rating in excess of 30 percent.  

Hearing loss

Ratings for hearing loss disability are determined by considering the puretone threshold average and speech discrimination percentage scores.  38 C.F.R. § 4.85(b), Table VI.  Disability ratings are assigned by combining a level of hearing loss in each ear.  38 C.F.R. § 4.85(e), Table VII; see Lendenmann v. Principi, 3 Vet. App. 345 (1992) (disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered).  

Under 38 C.F.R. § 4.86(a), when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Under 38 C.F.R. § 4.86(b), when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever result provides the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear is evaluated separately.

On February 2007 VA examination, the Veteran reported difficulty following group conversation, watching television, and understanding speech in noisy environments.  

Puretone thresholds, in decibels, were:

HERTZ
1000
2000
3000
4000
Right 
65
100
105
105
Left
20
25
30
30

Average puretone thresholds were 93.75 decibels for the right ear and 26.25 for the left ear.  Speech audiometry revealed speech recognition ability of 30 percent in the right ear and 100 percent in the left ear.  The diagnosis was mild to profound sensorineural hearing loss from 500 to 4000 Hertz in the right ear with very poor speech recognition ability, and hearing within normal limits from 500 to 2000 Hertz with mild sensorineural hearing loss from 3000 to 4000 Hertz in the left ear.

On April 2008 VA examination, the Veteran reported difficulty understanding speech in a group and in one to one conversations and listening to TV.  Puretone thresholds, in decibels, were:

HERTZ
1000
2000
3000
4000
Right 
65
100
105
105
Left
20
15
30
30

Average puretone thresholds were 93.75 decibels for the right ear and 23.75 for the left ear.  Speech audiometry revealed speech recognition ability of 36 percent in the right ear and 96 percent in the left ear.  The diagnosis was mild to profound sensorineural hearing loss from 500 to 4000 Hertz in the right ear, and normal hearing from 500 to 2000 Hertz with a mild sensorineural hearing loss from 3000 to 4000 Hertz in the left ear.

On May 2016 VA examination (pursuant to the Board's remand), the Veteran reported difficulty following conversations either in quiet or noisy environments and having to ask for repetition continuously.  He reported having serious difficulties hearing instructions.  

Puretone thresholds, in decibels, were:

HERTZ
1000
2000
3000
4000
Right 
95
105+
105+
105+
Left
25
20
30
30

Average puretone thresholds were 103 decibels for the right ear and 26 for the left ear.  Speech recognition scores were 28 percent in the right ear and 90 percent in the left ear.  The examiner opined that the Veteran has an irreversible severe to profound sensorineural hearing loss in the right ear with very poor speech discrimination ability, and his left ear has a borderline hearing loss, raising to mild hearing loss with a good speech discrimination score; the bilateral hearing status has no possibility of full or partial recovery.  The examiner opined that, due to the hearing loss, the Veteran cannot be involved in employment activities that require meeting or conference participation, working with the public, frequent or continuous communication with others and answering the telephone.

Applying the results of the February 2007 VA examination to Table VI produces a finding that the Veteran had Level XI hearing acuity in the right ear and Level I acuity in the left ear.  Under Table VII, these levels warrant a 10 percent rating.  Although the findings show an exceptional pattern of hearing loss in the right ear, Level XI is the maximum in both Tables VI and VIa; consequently applying the results to Table VIa would not offer the Veteran a different result.   

Applying the results of the April 2008 VA examination to Table VI produces a finding that the Veteran had Level X hearing acuity in the right ear and Level I acuity in the left ear.  Under Table VII, these levels warrant a 10 percent rating.  Again, applying Table VIa would not offer a different result.   

Applying the results of the May 2016 VA examination to Table VI produces a finding that the Veteran had Level XI hearing acuity in the right ear and Level II in the left ear.  Under Table VII, these levels warrant a 10 percent rating.  Once more, applying Table VIA would offer no different result.  The Board finds the February 2007, April 2008, and May 2016 examinations adequate for rating purposes; each was conducted in accordance with regulatory guidelines, included the findings necessary for rating hearing loss disability.  The examiners elicited from the Veteran descriptions of the functional impairment that arises from his hearing loss.  The Board finds no reason to question that the functional impairment is as the Veteran describes, but such impairment is contemplated by the 10 percent rating assigned.  While the most recent testing reflects some worsening of the Veteran's hearing acuity, it is not shown to have declined to a level warranting a rating higher than 10 percent.  There is no other medical record that provides a basis for rating the Veteran's hearing loss disability.  Consequently, a rating in excess of 10 percent is not warranted.  The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied.

TDIU prior to May 11, 2016

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements.  If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  38 C.F.R. § 4.16(a).

To meet the requirement of one 60 percent disability or one 40 percent disability, the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war.  Id.  Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).

Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history.  38 C.F.R. § 4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

The Veteran has already been granted a TDIU rating effective May 11, 2016.  The Board has herein granted a 50 percent rating for anxiety disorder effective February 15, 2005, and a 70 percent rating for anxiety disorder effective January 30, 2009.  [As of that date, the Veteran's service-connected disabilities include anxiety disorder, rated 10 percent from August 26, 1991 to September 24, 2002, 30 percent from September 24, 2002 to February 15, 2005, 50 percent from February 15, 2005 to January 30, 2009, and 70 percent from January 30, 2009; obstructive and restrictive airway disease, rated 30 percent; tinnitus, rated 10 percent; status post right hand surgery, rated 10 percent; and hearing loss, rated 0 percent from August 26, 1991 to September 24, 2002, and 10 percent from September 24, 2002.]  As a result of the Board's above awards of increased ratings for anxiety disorder, the schedular ratings therefore met the schedular rating requirements for a TDIU rating under 38 C.F.R. § 4.16(a) as of February 15, 2005, but not earlier.  The first date he met the requirements is February 15, 2005.  Consequently, the only question remaining is whether due to the service-connected disabilities he was unable to engage in a substantially gainful occupation as of February 15, 2005.

The Veteran stated in his March 2007 TDIU application that he was last employed in March 1999.  He stated in March 2007 that he last worked as a U.S. Postal Service employee and was fired because he could not finish his probationary period.  The claims file contains numerous statements from VA and private treatment providers stating that the Veteran is unable to work due to his service-connected disabilities.

The Board again notes the February 2005, April 2007, and May 2016 VA medical opinions regarding the impact of the Veteran's service-connected anxiety disorder, obstructive airway disease, and hearing loss (respectively) on his employability.  Although these opinions did not specifically find the Veteran to be unemployable as a result of the respective service-connected disabilities addressed, the Board finds that no opinion considered the combined effect of all of the Veteran's service-connected disabilities.  The Board concludes that entitlement to TDIU is warranted from February 15, 2005 based on the evidence of record, which suggests that the Veteran's anxiety disorder, combined with his obstructive airway disease and bilateral hearing loss, would likely result in his inability to maintain substantially gainful employment, given his training and previous work experience.  The Veteran is entitled to a TDIU rating effective February 15, 2005, the date that his service-connected disabilities met the schedular requirements under 38 C.F.R. § 4.16.

In summary, the Board finds that the evidence of record reasonably demonstrates that the Veteran's service-connected disabilities are of such nature and severity as to have precluded employment in any occupation consistent with his education and occupational experience since February 15, 2005.  Consequently, a TDIU rating is warranted from that date.   
Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  


ORDER

For the period prior to February 15, 2005, a rating in excess of 30 percent for the Veteran's anxiety disorder is denied.

From February 15, 2005 to January 30, 2009, a 50 percent rating for anxiety disorder is granted, subject to the regulations governing payment of monetary awards.   

From January 30, 2009, a 70 percent rating is granted for anxiety disorder, subject to the regulations governing payment of monetary awards; a schedular rating in excess of 70 percent at any time is denied.

A rating in excess of 30 percent for obstructive airway disease is denied.

A rating in excess of 10 percent for bilateral hearing loss is denied.

TDIU is granted from (the earlier effective date of) February 15, 2005, subject to the regulations governing payment of monetary awards.


REMAND

Low Back Disability

On review of the expanded record, the Board finds that remand is necessary regarding the claim for service connection for a low back disability.  
On May 2016 VA examination (pursuant to the Board's remand), the examiner opined that the Veteran's current multilevel lumbar degenerative disc disease with spondylosis is less likely than not caused by or a result of his military service.  For rationale, the examiner noted that the Veteran's STRs are silent for the condition claimed and that there is no evidence in the medical records that he received treatment for the condition within at least 5 years after being released from active service.  The examiner opined that the current actual lumbar condition is not related to military service because it was incurred several years after the Veteran's last day of active service.  

The Board finds the May 2016 VA examination to be inadequate for several reasons.  The opinion was clearly not based on an accurate history of the Veteran's low back disability, because he was discharged from his last period of active duty in June 1991, and the medical evidence reflects that he complained of low back pain on January 1994 VA treatment (approximately 2.5 years after separation from service).  He also complained of back pain on and off since 1991 on April 1995 VA examination (less than 4 years after separation from service), and the diagnoses at that time included low back pain syndrome.  Additionally, the Veteran is competent to report that he has experienced continuous back problems since service; he has made such statements, which, for purposes of obtaining an opinion, the Board finds to be credible, and they cannot be ignored (a point well-established in case law).

The probative value of a medical opinion rests in part on the completeness of the record on which it was based, and also on the explanation of rationale for the opinion.  Because the May 2016 VA examiner based his opinion on an inaccurate history of both lay and medical evidence, the examination is inadequate and a remand for further development is necessary.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).

It is well-established in case law that when remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).

TDIU prior to February 15, 2005

The Board finds that the issue of entitlement to a TDIU prior to February 15, 2005 must be remanded for additional development.

The Veteran filed his claim for an increased rating for anxiety disorder in May 2003.  From that time until prior to February 15, 2005, the Veteran's service-connected disabilities had a combined rating of 60 percent, which did not meet the schedular criteria for an award of TDIU.  However, the record reflects the Veteran was fired from his job at the post office in 1999.  In concluding that the Veteran's psychiatric disability caused him to have a deficiency in work on January 2009 VA examination, the examiner noted that he was fired for "not meeting the expectations at work."  As this opinion indicates the Veteran's psychiatric disorder caused him not to meet the expectations at work, there is evidence indicating the Veteran was unemployable prior to February 15, 2005 due to his service-connected disabilities.  

All cases of Veterans who fail to meet the percentage standards for TDIU under 38 C.F.R. § 4.16(a), but who are unemployable by reason of service-connected disabilities, should be submitted to the Director, Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16(b).  As the Board finds the evidence indicates the Veteran was unemployable as a result of his service-connected disabilities prior to February 15, 2005, and he did not meet the schedular criteria, his case should be forwarded to the Director of Compensation Service for extraschedular consideration.

Accordingly, the case is REMANDED for the following:

1.  Arrange for a new VA examination of the Veteran by an appropriate clinician to determine the likely etiology of his back disability, and in particular whether or not such disability was incurred in or caused by his active duty service.  The Veteran's entire record (including this remand) must be reviewed by the examiner in conjunction with the examination.  Based on interview/examination of the Veteran and review of his claims file (and noting the Veteran's lay accounts of continuing symptoms since service and his complaints on medical treatment within 3 years after separation), the examiner should offer an opinion that responds to the following:  

(a)  Please identify (by medical diagnosis) any/each chronic low back disability found.  

(b) As to each low back disability entity diagnosed, please opine whether it is at least as likely as not (a 50% or better probability) that such disability is related to the Veteran's active service.  If the opinion is to the effect that it is unrelated, please reconcile that conclusion with the Veteran's reports of continuous/recurring symptoms since service/injuries therein.

The examiner must explain the rationale for all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

2.  Refer the Veteran's claim for entitlement to a TDIU prior to February 15, 2005, to the Director of Compensation Service for an opinion as to whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation, pursuant to § 4.16(b).

3.  Review the expanded record and readjudicate these claims.  If either remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the opportunity to respond.  The case should then be returned to the Board for further appellate review.

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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs