Citation Nr: 1804106 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-16 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for hypertension secondary to service-connected disabilities. 2. Entitlement to a total disability rating for compensation based on individual unemployability due to a service-connected disability (TDIU). ORDER Entitlement to TDIU on an extra-schedular basis is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran's service-connected disabilities have precluded him from substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU on an extra-schedular basis have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to February 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions in May 2011 and April 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The issue of entitlement to TDIU was remanded by the Board in July 2015 for further development. In September 2017, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issue of entitlement to service connection for hypertension secondary to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to TDIU. The Veteran contends that he is unable to obtain or maintain employment due to his service-connected disabilities. The record shows that the Veteran is currently unemployed. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. § 3.340, 3.341, 4.16 (2017). A total rating for compensation purposes may be assigned where the schedular rating is less than total, when, in the judgment of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16(a) (2017). When a veteran does not meet the schedular requirements for a TDIU rating under 38 C.F.R. § 4.16 (a), rating boards are still required to submit to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). 38 C.F.R. § 4.16 (b) (2017). An assessment for extra-schedular referral requires consideration of the veteran's service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b) (2017). The veteran's age and the effects of non-service connected disability, however, are not factors for consideration. 38 C.F.R. § 3.341 (a), 4.19 (2017). For a veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. 4.16 (a) (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes that the Veteran's current combined evaluation for compensation purposes is only 40 percent. Thus, the Veteran does not meet the schedular requirements of 38 C.F.R. § 4.16 (a). The question for the Board is whether the Veteran's service connected disabilities preclude him from obtaining or maintaining any gainful employment. The Board finds that competent, credible, and probative evidence establishes that the Veteran's service-connected disabilities, specifically his service-connected fibromyalgia and seronegative spondyloarthropathy have precluded him from substantially gainful employment. An August 2010 letter from the Mississippi Department of Employment Security determined that after an investigation the Veteran was revealed unable to physically work. A September 2010 VA medical examination reflects the Veteran was terminated from his employment at a finance company due to his inability to sit at his desk for long periods of time. A January 2011 VA medical letter from Dr. S. B. explained that it is not expected that the Veteran's seronegative spondyloarthropathy will improve or his inability to work. A November 2011 VA medical letter from Dr. S. B. concluded that the Veteran is unable to maintain gainful employment due to chronic pain generated by diseases of the muscles and joint. Dr. S. B. explained that the Veteran's preclusion from gainful employment will continue for the foreseeable future. Additionally, the physician noted the Veteran's service-connected fibromyalgia and seronegative spondyloarthropathy as severely limiting his ability to walk without aids. The issue was referred to the Director of the Compensation Service for extra-schedular consideration in regard to TDIU. In an April 2011 memorandum decision, the Director denied the claim for entitlement to TDIU on an extra-schedular basis concluding the evidence failed to show the Veteran's service-connected disabilities render him incapable of seeking and maintain gainful employment. As noted above, the Board remanded the issue of entitlement to TDIU was remanded by the Board in July 2015. Specifically, the Board instructed the RO to obtain a VA medical examination and opinion. In an August 2015 VA examination report the examiner opined that it is at least as likely as not that the Veteran's service-connected fibromyalgia is severe enough to render him unable to secure or follow a substantially gainful occupation. In giving the benefit of the doubt to the Veteran, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation as a result of service-connected disability. Therefore, entitlement to a TDIU on an extra-schedular basis is granted. REMAND The Board regrets further delay in this case, but finds that a remand is required to satisfy VA's duty to assist. The Veteran was provided a VA medical examination a The Veteran contends that he has hypertension related to his service-connected disabilities. The Veteran was provided a VA medical examination in April 2015. The examiner opined that the Veteran's hypertension is less likely than not incurred in or caused by his service-connected disabilities. The examiner explained that medical literature does not currently support a direct cause and effect between a chronic pain condition and the onset of hypertension, nor does it support permanent aggravation of hypertension beyond its normal course. The Board finds that a supplemental opinion is necessary. VA treatment records reflect a notation explaining that the Veteran's pain can cause elevated blood pressure and will exacerbate his underlying hypertension. (See February 2015 VA Progress Notes). The Board finds that a supplemental opinion discussing the Veteran's medical treatment for hypertension, to include the February 2015 progress note is needed. Additionally, the Board finds that an opinion as to the relation of the Veteran's hypertension and prescribed medication for his service-connected disabilities is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain a clinical opinion from an appropriate clinician. The claims file should be made available for the clinician to review, and the report should reflect that such review was accomplished. The clinician should consider the entire claims file. The examiner is requested to furnish an opinion on the following: a.) Whether it is at least likely as not (50 percent probability or more) that the Veteran's hypertension is related to, caused by, or aggravated by his service-connected disabilities; and b.) Whether it is at least likely as not that the Veteran's hypertension is related to, caused by, or aggravated by prescribed medication for his service-connected disabilities. 2. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, issue a supplemental statement of the case and provide the appellant, and his representative, with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel Copy mailed to: [Disabled American Veterans] Department of Veterans Affairs